Good Essay On Judicial Decision

Law

After careful examination of the facts of the case, the defendant Sarah Johnson is hereby acquitted for violation of Section 123 of the Criminal Code.
Section 123 of the Criminal Code which took effect in 2016 provides that: (1) Every person, who, with the intent to procure the miscarriage of a female person, and shall use any means for the purpose of carrying out his or her intention shall be guilty of an indictable offence and liable to imprisonment for life.
Based on the facts of the case, defendant is a licensed physician by profession in the province of Ontario, where she practices medicine at the Women’s Health Clinic. On the 1st day of January she was criminally charged with 10 counts for the alleged violation of Section 123 of the Criminal Code. However, the law admits of an exception which provides that:
(2) Any qualified medical practitioner who shall carry out his or her intention to procure the miscarriage of a female person shall not be found guilty of an offence if he or she certifies in writing that the continuation of the pregnancy of such female individual will endanger her life, physical health or emotional health.
In the given case, defendant Johnson falls under the definition of a “qualified medical practitioner” which refers to any individual who is licensed to engage in the practice of medicine under the laws of the applicable province. Here, it was clearly shown that the defendant was licensed to practice medicine in the province of Ontario in Canada.
While it may be true that the defendant admits that she has committed the offence provided under Section 123 of the Criminal Code, her arguments are meritorious since the aforesaid law should have no force and effect for it contravenes the right guaranteed by Section 7 of the Canadian Charter of Rights and Freedoms. Under Section 7 of the Canadian Charter of Rights and Freedoms, it 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.” Particularly in Section 1 of the said law provides that rights may be limited as long as it has been “demonstrably justified in a free and democratic society.” Furthermore, the alleged violation of the defendant is not justified under section 1 of the Canadian Charter of Rights and Freedoms.
In the given facts of the case, defendant was charged of 10 counts for violation of Section 123 of the Criminal Code. However, the said also admits an exception when the physician shall provide in writing that the continuation of the pregnancy of such female individual will endanger her life, physical health or emotional health. Thus, defendant is allowed under the law to procure the miscarriage of a female individual if it will preserve the life of such person and promote her physical and emotional health.
In the celebrated case of Roe v. Wade, the Supreme Court ruled in favor of the petitioner, after the court held that the right to privacy as provided under the due process clause of the 14th Amendment covers the decision of a female individual to undergo abortion as long as such right is balanced against the two legitimate interests state in charged with implementation of abortions in order to protect the prenatal life and protect the health of the women.
In the similar case of R v Morgentaler, the Supreme Court of Canada ruled that the Criminal Code of Canada that provides and abortion provision should be declared unconstitutional since it is in clear violation the right of the women and security of person as declared under Section 7 of  the Canadian Charter of Rights and Freedoms. The aforesaid ruling of the court was reached since there were no existing criminal laws in Canada that regulates abortion. Thus, the ruling caused the acquittal of the three physicians who were charged for violation of the Criminal Code. Dr. Morgentaler challenged the anti-abortion law since it falls beyond the scope of authority or power of the federal government to enact such law. The High Court held that the said Section 251 of the Criminal Code contravened Section 7 of the Canadian Charter of Rights and Freedoms.
Section 251 of the Criminal Code provides that abortions should only be done by licensed physicians in accredited hospitals provided that there is a proper certification of approval that is obtained from the Therapeutic Abortion Committee of the said hospital. The failure to obtain such certification shall be considered as violation of the said law. In the case of R v Morgentaler, the women who went to the abortion clinics did not obtain the necessary certification from the Therapeutic Abortion Committee, which is a mandatory requirement under the law. However, the three physicians who were indicted in this case argued that every woman should have full authority and control to decide whether she will undergo abortion. The women should be given the chance to make a complete decision whether or not she will proceed with the pregnancy or expel the fetus in her womb based on her aspirations and priorities.
In the given set of facts, the defendant, who was a licensed physician in Ontario has issued written confirmation that that the continuation of the pregnancy of the female individuals may endanger the life, physical health or emotional health of these persons. Hence, in order to save the life of these women, the defendant allowed them to undergo miscarriage or abortion to preserve the life and promote the physical and emotional health of these individuals.
It was clearly stated under the law that the physician cannot be charged of an indictable offense after showing the reason for the miscarriage is justified. In addition, a favorable decision should be given to the petition of herein defendant Johnson by citing Section 7 of the Canadian Charter of Rights and Freedoms which 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.” The specific Section 1 of the Canadian Charter of Rights and Freedoms provides that rights may be limited as long as it has been “demonstrably justified in a free and democratic society.” Furthermore, the alleged violation of the defendant is not justified since her only intention is to save the life of the women and protect their physical and emotional health.

References:

Roe v. Wade, 410 U.S. 113, [1973]
R v Morgentaler, 1 S.C.R. 30, [1988], 63 O.R. (2d) 281