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Running head:DISCRETION CLASS 7-2 PROJECT TWO SUBMISSION ASSIGNMENT DISCRETION CLASS 7-2 PROJECT TWO SUBMISSION ASSIGNMENT Name of the Student Name of the University Author Note
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1DISCRETION CLASS 7-2 PROJECT TWO SUBMISSION ASSIGNMENT To:Judicial Ethics Advisory Committee From:[Name of the student-To be filled by the student] Date:[To be filled by the student] Subject:Discretionary Actions of Judge I am the public representative of Emily Doe and her family. My letter is to express distress concerning the discretionary verdict and actions of the recent conviction of the defendant made by the judge in Miss Doe’s case. I would like to articulate my worries regarding the following: In the present case, the Judge has offered jail sentence as punishment to the offender forsix months with lifetime registration as a sex offender. It can be seen that applying the provision of section271of The Canadian Criminal Code, the punishment provided is the bare minimum punishment which is granted only in cases of summary conviction but not for those offenses which are indictable. The judges indeed have the discretion to grant minimum and maximum punishment in a trial under the doctrine of separation of power and the same has been guaranteed by the Canadian charter of rights and freedom. However, a judge while applying the power must keep in mind that such a decision must promote the principle of fair justice and unbiased decision making which is one of the fundamental principles of the rule of law. Therefore, the judge while granting such decision should have considered the prevailing guidelines as well as by following the doctrine of ratio decidendi must have considered the decision concluded by the court of law in the case ofR v JAandPeople v. Turner, where consent has been recognized as an utmost important factor to determine the character of an assault as sexually influenced. The court, in this case, held that in case of an unconscious person the presence of consent a determining factor for sexual assault as it is to consider that
2DISCRETION CLASS 7-2 PROJECT TWO SUBMISSION ASSIGNMENT whether that person was in a position to give consent for such action by the offender or not. Therefore, it can assume from the decision that the judge has considered the background of the victim before ordering such a lenient decision. But the other factors which the judge must have to consider is the absence of consent on the part of the victim, application of force by the offender upon the victim's body which can be evident from the injuries in her body. The most important thing which the Judge should have considered is that such action by the offender is a denial of the victim's right to involve in sexual activity with her consent and such an incident might have caused her mental and social distress for the entire lifetime. Therefore, offering such loose judgment is nothing but the denial of the victim's fundamental right to get fair justice upon happening of such wrong. Therefore, it can be understood from the fact of the case that there was grave injustice happened through the decision upon the victim which promotes a negative view in the society regarding the consequences of sexual assault, especially for the victim. It is necessary to offer the victim a reasonable judgment as this is the only thing that can divert his or her mind from the social stigma that they are going to carry from that incident. Further, the judge has miserably failed to recognize the discovery of the witnesses and their subsequent statement regarding the crime which indicates that the offender was surely involved in such activity with his full sense of understanding about the consequences of the offense. If the Judge could have considered all these facts in respect of the victim, rather than seeing the act as a ‘moments of sexual activity' as referred by the defendant's family, then he could have delivered a satisfactory judgment according to the gravity of the offense. Sincerely, [Name of the student-To be filled by the student]
3DISCRETION CLASS 7-2 PROJECT TWO SUBMISSION ASSIGNMENT Reference: CaliforniaLegislativeInformation.(2013).PenalCodeSection261.Retrievedfrom https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml? sectionNum=261.&lawCode=PEN Leagle.(2019).Peoplev.Turner.Retrievedfrom https://www.leagle.com/decision/incaco20180808037 R v JA2011 SCC 28