HEALTH LAW ASSIGNMENT JUDICIAL DECISION

HEALTH LAW
ASSIGNMENT #3
JUDICIAL DECISION

INSTRUCTIONS

1. This assignment requires you to pretend that you are a judge and to write your decision. Your decision should have a similar format and tone as the various decisions you have read for this class. Please do not consult any sources other than those referred to in this document and those that we have covered in class. All of the information you need to write your decision can be found in the course material and the Defendant’s Statement below (which sets out the defendant’s arguments).

2. You should not use citations for the basic legal principles I set out in the lectures/slides or the Defendant’s Statement, as judges do not cite these documents. It is sufficient to say, for example, “as the Defendant argued…” If you are citing a case or law, please follow the guide to legal citation that I have posted online. Your citations should appear as endnotes. Please review the guide to legal citation that follows this assignment. This guide is a simplified version of the Canadian Uniform Guide to Legal Citation. Because this is a complex method of citation that you are unfamiliar with, you are not expected to consult the official guide or to have perfect citations. However, you should do your best to conform your citations to the samples I have provided. You will not lose marks for your citations unless there are obvious errors that clearly could have been avoided had you consulted the citation guide, there are missing citations, or the citations contain incorrect or missing information (i.e. you leave out the author’s name, the title of the journal article is incorrect, etc.).

5. Your legal memo should be single spaced, 12 point font, Times New Roman font, with 1 inch margins.
7. You will be graded on the following criteria: your ability to identify the relevant facts and issues, your understanding of the applicable legal principles, your application of those principles to the facts, the strength of your arguments, whether your conclusions are supported by the facts and the law, the clarity of your writing, and your grammar and style.

8. Should you have questions regarding your legal memo after having read over this entire document carefully, please direct all questions to your assigned teaching assistant (per the announcements that I have posted). They will then triage which questions should be directed to me.

9. This assignment is to be completed independently. Please see the syllabus for further information on academic honesty.

11. Good luck with your memo.

IMPORTANT NOTE: IT IS NOT AN ERROR THAT THE LEGAL CLAIM BELOW REFERS TO THE YEARS 2016 AND 2017. THE FACTS ARE THAT YOU ARE TO IMAGINE THAT THE GOVERNMENT PASSES NEW LEGISLATION IN 2016, WHICH THE PLAINTIFF IS CRIMINALLY CHARGED WITH VIOLATING IN 2017.
Defendant’s Statement

1. The Defendant ….. is an individual who resides at address . She is a physician who is licensed to practice medicine in the province of …… She practices medicine at the Women’s Health Clinic.

2. On January 1st, 2017, she was criminally charged with 10 counts of contravening section 123 of the Criminal Code, which was added to the Criminal Code in 2016. This section reads as follows:

123 (1) Every one who, with intent to procure the miscarriage of a female person, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and liable to imprisonment for life.

Exception
(2) a qualified medical practitioner who carries out his or her intention to procure the miscarriage of a female person is not guilty of an offence if he or she certifies in writing that the continuation of the pregnancy of the female person would or would be likely to endanger her life, physical health or emotional health.

Definition
(3) “qualified medical practitioner” means a person licensed to engage in the practice of medicine under the laws of the applicable province.

3. The Defendant admits that she has committed the offence listed in section 123, but argues that this law ought to be of no force and effect as it violates of the right guaranteed by section 7 of the Canadian Charter of Rights and Freedoms. She also argues that this violation is not justified under section 1 of the Canadian Charter of Rights and Freedoms. Section 7 provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Section 1 provides that rights may be limited if “demonstrably justified in a free and democratic society.”