Friday, April 18, 1997 Time: Eight Hours
9:00 AM Open book - Take Home Exam
N.B. THE TIME LIMIT MUST BE STRICTLY OBSERVED AND BOOKLETS HANDED IN AFTER THE EXPIRATION OF THE ALLOTTED TIME WILL NOT BE ACCEPTED. ANSWER BOTH QUESTIONS. EACH QUESTION IS EQUALLY WEIGHTED. YOUR ANSWER TO BOTH QUESTIONS MUST BE A MAXIMUM OF 10 PAGES, DOUBLE SPACED, 12 PT TYPE.
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QUESTION ONE
50% Section 241 of the Criminal Code provides:
whether suicide ensues or not, is guilty of an indictable offence and is liable to imprisonment for a term not exceeding 14 years."
On June 18, 1995, the Justice and Legal Affairs Committee of the House of Commons, after holding public hearings, prepares a Report to Parliament. Parliament receives the Report of the Committee on July 1, 1995. The Report states the following conclusions:
2. Suicide is contagious. Many copycat suicides follow upon the report of suicides. Ways must be found to prevent government-assisted death from encouraging copycat suicides or creating suicide epidemics.
On January 1, 1996, Parliament enacts the following statute:
2. Section 241 of the Criminal Code is amended by inserting the following at the end of the Section:
241.2 Section 241.1 does not apply to a person who permits his own doctor and a qualified psychiatrist of his own choosing to examine him and who produces a certified true copy of an opinion signed by his own doctor and a qualified psychiatrist that the person is irreversibly, terminally ill, is mentally competent and has unequivocally expressed the desire to die (a "death certificate").
241.3 In the event of a disagreement between the person's own doctor and a qualified psychiatrist, the person may apply to the ethics committee of any public general hospital within his province for a determination that he is irreversibly, terminally ill, mentally competent and has unequivocally expressed the desire to die. A certified true copy of the opinion of the ethics committee shall be fully effective for all purposes as the certified true copy of the death certificate mentioned in s. 241.2.
241.4(a) All public general hospitals shall establish a thanatological committee.
(b) The thanatological committee may receive requests for assistance in suicide from persons desiring to die, and where such request is supported by a certified true copy of a document mentioned in sections 241.2 or 241.3, the committee shall designate a medical unit in the hospital to assist the person with suicide, and the unit so designated shall assist the person with suicide.
(c) Where the procedures mandated by these sections are followed, section 241 of the Criminal Code does not apply.
(d) A member of the medical staff may object on grounds of conscience from participating in assisted suicide, and where a member objects, that member shall be relieved from participation, and the Chief of Medical Staff shall designate another member of the staff to participate in place of the objecting member.
241.5 All public general hospitals shall establish an ethics committee composed of the Chief of the Medical Staff, a Professor of Ethics at an approved Ontario University, and a Professor of Law at an approved Ontario Law Faculty.
241.6 No person shall print or publish any report or detail concerning any suicide or attempted suicide except as authorized by a court, and in considering requests to publish, the court shall have regard to
(b) the likelihood that the suicide or attempted suicide will encourage other copycat suicides and
(c) whether publication can take place without sensational detail likely to encourage copycat suicide."
John Johns Johnson is a spectacular basketball player. He can jump high. He can fake low. He can stuff the ball into the net from behind his back.
John Johns Johnson takes steroids. He is caught by the anti-doping authorities. He is prohibited from playing basketball for life. John Johns Johnson becomes depressed. He spends much time moping about in his apartment. He watches sports on television. He does not eat. He loses weight. He catches the flu. It appears that the flu, combined with his lack of appetite and depression, will kill him.
John Johns Johnson decides to kill himself first. He talks it over with his doctor, Dr. Michael Michaels, who attempts to dissuade him. However, Dr. Michaels is moved by John Johns Johnson's mental anguish, and becomes persuaded to sign off on a death certificate. John Johns Johnson also consults a psychiatrist, Dr. Norman Normans. Dr. Normans is a suicide activist, known to sign off on death certificates by routine. Dr. Normans signs off on John Johns Johnson's death certificate. However, John Johns Johnson is too depressed to do anything with his death certificate -- too depressed to seek a bureaucratic death; ultimately he tears the certificate up.
Later, John Johns Johnson asks his friend, Joseph Josephs, to help him kill himself. Joseph Josephs sees his friend suffering, spends weeks trying to talk him out of it, but is himself finally persuaded of the inevitability of John Johns Johnson's determination to kill himself. Joseph Josephs administers a dose of morphine to John Johns Johnson. The morphine makes John Johns Johnson extremely ill, but he does not die. Joseph Josephs calls an ambulance and John Johns Johnson is rushed to hospital where, unexpectedly, he recovers.
John Johns Johnson also recovers from the flu. Then, on a bright, sunny day in May, he is discharged from hospital. He doesn't know why, but he is hungry -- famished in fact. He goes to ethnic restaurants. He eats. He gains weight. He stops taking steroids. He feels great. Later, he takes up baseball as a second career, and becomes a star.
Vicki Victor is a reporter with The Muckraker, a sports newspaper in Ottawa. She hears about the above events and publishes a full report on them.
John Johns Johnson is charged with attempted suicide. Joseph Josephs is charged with aiding suicide and attempted murder. Vicki Victor is charged with publishing an attempted suicide without judicial permission.
Advise John Johns Johnson, Joseph Josephs and Vicki Victor as to any constitutional defences that may be available. Do not discuss section 1 of the Charter of Rights.
QUESTION TWO
50% Ernesto Zorro was a student in Bratislava in the 1930s. In 1938-40 he was a member of the Hlinka academic guard, a fascist para military student unit in the then independent state of Slovakia. At the time, Slovakia was a Hitler-allied, Nazi supported regime. As a member of the Hlinka academic guard in 1938, Zorro participated in two unprovoked attacks on Jewish families in Bratislava, in several mass anti-Semitic demonstrations and was a student representative to the Hlinka General Council. The General Council passed regulations for the confiscation of Jewish property, and the deportation of Slovakia's 70,000 member Jewish community to the death camps at Auschwitz.
Zorro left Slovakia in 1940, and was reportedly prospecting for gold in New Guinea throughout the war years. After the war he returned to Czechoslovakia. In 1947 he was tried by a Czechoslovakian Court for the unprovoked attacks, and sentenced to one year imprisonment, which he served. In 1950 he immigrated to Canada.
Zorro applied for a job and was hired by the Technical Institute of Northern Ontario in 1964. He was neither asked about, nor did he volunteer any information about his war time activities.
Roberta Rosenblum was a history student at the Technical Institute of Northern Ontario in 1996, and a member of the Technical Institute Hillel Club, a Jewish Students religious and social organization. She was taking Modern European History with Professor Zorro.
When Professor Zorro came to discuss the holocaust, he made this comment:
It's just not possible to talk frankly about this subject now. I mean, the whole holocaust thing. I mean, you just can't be frank anymore, you know what I'm saying?
"What are you saying, exactly?" Roberta Rosenblum asks.
You know what I'm saying. I mean, you know, eh. The holocaust and all that, I mean, eh, you know? This whole thing is just so, so ... you know, you know what I'm saying?
"No, I don't know," Roberta replies.
Later, Roberta is bothered by the incident. She makes some inquiries. She uncovers details about Professor Zorro's past. She complains to the Technical Institute authorities about the classroom incident, and also about the appearance of having a former Hlinka party member on the Technical Institute's academic staff.
Three days later, on February 27, 1993, Professor Zorro receives this notice:
A formal complaint has been made against you that you attempted to assert power over another person in order to obtain your own objectives and thereby detrimentally affected the classroom environment in such a way as is likely to lead to adverse psychological consequences for persons of minority religious groups in your classes. The complaint relates to your behaviour in Modern European History, on February 24, 1996 in conjunction with and in the context of your war time activities. The complainant has requested to remain anonymous. You must appear before an arbitration panel on March 13, 1996 in order to answer the charge of harassment. If you do not appear, the arbitration panel may proceed against you in your absence, and may recommend to the Dean that he or she require you to apologize to your class and that if you refuse to apologize, that you be suspended from the Technical Institute until you do apologize.
The Technical Institute of Northern Ontario Act provides as follows:
1. The Technical Institute of Northern Ontario is hereby established....
4. The objects and purposes of the Technical Institute are
(a) to promote the advancement of learning and the dissemination of knowledge;
(b) to further bilingualism and multi-culturalism in Ontario;
(c) to further the intellectual, spiritual, moral, physical and social development of, as well as a community spirit among, its undergraduates, graduates and teaching staff, and to promote the betterment of society....
18. Every faculty established by the Technical Institute shall be governed by a Council, which shall consist of the Dean, the Vice Dean, the Secretary, and such other members as may be determined by the Senate.
19. The Councils of the faculties may make regulations for the good and efficient management of the affairs of the Faculty, including regulations specifying norms of conduct for students and professors, and every such regulation made by the Councils of the Faculties relating to professional discipline shall be approved by the Ministry of Colleges and Universities, and shall have such force and like effect as if enacted in this Act.
20. The Board Members shall govern the affairs of the Technical Institute.
21. The Board Shall be composed of the following Members:
1. The Minister of Education of Ontario
2. Every person who has held the office of Minister of Education of Ontario.
3. Twenty persons appointed by the Minister of Education of Ontario of whom ten shall be persons ordinarily resident in The Municipality of Sudbury and ten shall be persons ordinarily resident in Northern Ontario outside of The Municipality of Sudbury.
4. Forty persons elected by secret ballot during provincial general elections, twenty of whom shall be from The Municipality of Sudbury and twenty of whom shall be from outside The Municipality of Sudbury....
27. All students, staff and the Professors are qualified to vote at an election of Board Members.
28. No member is eligible to be a candidate for Board Member at any election who is not qualified to vote at the election.
Since 1963 the Minister of Education has invited community and public interest groups to submit the names of persons active in community affairs and who have the confidence of their communities to be considered for appointment as Board Members. These names are vetted by a committee made up of community and public interest group presidents. The committee of presidents compiles a shortlist of twenty names from the names submitted, and forwards the shortlist to the Ministry of Education for review by Ministry bureaucrats, a process internal to the Ministry whose workings are unknown. Since inception of the process, the minister of Education has appointed as Board Members those twenty persons on the shortlist with two exceptions, one of whom had an extensive criminal record.
The Faculty Council of the Faculty of Arts of the Technical Institute of Northern Ontario made the following regulation in 1991, which it forwarded to the Ministry of Colleges and Universities for review. The Ministry, after an unknown process, approved the regulation with no changes:
1. Harassment is unwelcome behaviour which attempts to assert power over another person in order to obtain one's own objectives. Harassment can either be psychological or physical. Harassment negatively and detrimentally affects the classroom in such a way that it is likely to lead to adverse consequences for the individual and/or group harassed. Intention is not a relevant consideration in determining if harassment has occurred.
2. Students may address complaints about harassment to the Community Relations Co-ordinator. The confidentiality of such complaints shall be assured.
3. The Community Relations Co-ordinator will notify all relevant parties once a formal complaint has been initiated. Drafted in consultation with the individuals concerned, this complaint shall be in writing and shall detail the nature of the complaint.
4. The procedure will be confidential. The parties will be discouraged from disseminating the complaint.
...
8. Complaints which cannot be mediated will be referred to a three person Equity Arbitration Committee.
9. The Equity Arbitration Committee may make the following recommendation to the individuals concerned.
...
(c) that the person complained of apologize to the individual or individuals raising the concern or to the class involved;
(d) any other recommendations that are deemed just and reasonable ...
21. Where the Equity Arbitration Committee so recommends, the Dean may require any person complained of to apologize to the individual or individuals complaining or to a class. If a person refuses to apologize when required to do so by the Dean, the Dean may suspend the person from the Technical Institute for such period as he or she deems appropriate.
Professor Zorro consults you with respect to the notice received. Advise Professor Zorro with respect to all Canadian Charter of Rights and Freedoms issues.