In the Interest of Justice - Case Study Example

In The Interest Of Justice In The Interest Of Justice “In the interest of justice” is mainly the cause of equity and fairness applied by a judge making a ruling in a specific situation (CAE, 2013). It is a phrase, which is very biased and its understanding will differ based upon the facts, as well as the individuals involved. Under Article 53 of the UN Rome Statute (ICCS), a prosecutor has a significant role to settle whether or not to commence an investigation and, after the investigation, settle that there is not enough grounds for a prosecution. In formulating such decisions, the ICCS confirms that a factor to be regarded by the prosecutor is “in the interests of justice.” The Canadian federal regime’s Family Justice Working Group, in April 2013, published a report on family law in Canada (FJWG, 2012). The report reviews numerous previous reports on family law, assessed the effects they have had on Canadian family courts and offered over 30 recommendations for enhancements (FJWG, 2012). Therefore, what is the state of Canada’s family law? Why was such a report commissioned? In the abstract, the Working Group’s report states that Canadians do not sufficient/adequate access to family justice (FJWG, 2012). For numerous years now, researchers have been telling people that delay, cost, complexity, as well as other hurdles, are making it unfeasible for Canadians to practice their lawful rights. Of late, an increasing body of research has started to measure the size of unmet legal need in Canadian communities and explain the worrying individual, as well as social consequences of failing to react efficiently to family legal issues (FJWG, 2012). The connection between access to family law and the rule of law is direct. This is where a majority of Canadians require the justice system. Family justice should be made sensible, affordable and accessible to average Canadians (Genn, Partington & Wheeler, 2006). The main issue with family justice in Canada then, in line with the Action Committee’s report, is that the family law is not sensible, affordable or sufficiently accessible (FJWG, 2012). Hon. Thomas A. Cromwell, the chair of the Action Committee, is quoted a number of times in the report clarifying that he does not view access to justice as just access to a lawsuit or even merely as access to judges, lawyers and courts (CAE, 2013). Therefore, if the main issue with family justice is insensible and insufficient accessibility, then what are the present barriers to convenience and how can they be eradicated? A significant theme of the report is the position of adversarial (rights-based), as well as non-adversarial (interest-based) disagreement resolution procedures in the family law system together with the still unused potential for non-adversarial principles and consensual dispute resolution procedures to increase access to the family law system (FJWG, 2012). These non-adversarial principles translate to the interest of justice being discussed in this paper. These principles are what the Family Justice Working Group think are causing the insensibility of the family law system of Canada (FJWG, 2012). The legal system has assumed non-adversarial approaches, mainly the interest of justice, to family law cases, and procedures like collaborative law and mediation are now extensively used across Canada. Therefore, what is the need of these non-adversarial (the interest of justice), problem-solving methods if the hinder with the process of justice in family law. In case of two individuals who are involved in a legal action against the Crown or a government entity, professional cross-examination of a prosecution witness together with where it is “in somebody else’s interests” that the indicted be represented are the criteria most probable to be used by both solicitors and decision-makers (CAE, 2013). Both these are considered as barriers to family law. Taking the problem of professional cross-examination first, the guidance affirms that this is for suits where expert cross-examination is required, and may come up where the witness is a professional, but also in suits where the evidence can cause an action to seem more evil than it was, in reality (Hurder, 2007). The guidance goes further to assert that, in thinking about applications, decision-makers must center on the evidence’s nature instead of the status of the witness offering it (Johnson, 2011). In reality, barely any reference was made through either solicitors or decision-makers to the evidence’s nature, but there were signs that solicitors were persuaded by the standing of the witness (Trebilcock, Duggan & Sossin, 2012). This shows that, in family law, a court ruling might be influenced by status of the witness just because of the “in the interest of justice” rule, which makes it rather unfair (Hurder, 2007). Even though, this is an appropriate argument for granting legal support, in line with the guidance, this must correctly be measured under the last criterion that is the ‘somebody else’s interests’ (CAE, 2013). In Canada, with regards to family law, there are numerous cases, which can make one party be favored due to the “in the interest of justice” rule (Johnson, 2011). These conditions include cruelty, conviction of felony, adultery, confinement in a mental hospital, abandonment, defenses and living apart. A Canadian court might grant a divorce in favor of one party if the other party is guilty of cruel or unkind action toward the complaining party of a nature, which renders future living together unbearable (Hurder, 2007). In the case of a husband and a wife, a Canadian family court might grant a divorce in support of one spouse basing their ruling on whether the other partner has committed adultery (Johnson, 2011). The court might grant a divorce in support of one party if, during the marriage, the other party: (1) has been charged with a felony; (2) has been jailed for a minimum one year in the Canadian Criminal Justice Department, a federal prison, or the penitentiary of another province; and (3) has not received any pardon (Genn, Partington & Wheeler, 2006). The court might not authorize a divorce under this section against a party who was jailed on the testimony of the other party (Trebilcock, Duggan & Sossin, 2012). Other cases where the “in the interest of justice” rule can be applied in order to favor one party instead of the other include cases where child custody is involved (CAE, 2013). The prosecutor is obliged to come up with cases of avoiding further hearing by justifying that one party should be favored with regards to custody of the child (Trebilcock, Duggan & Sossin, 2012). Questions that are asked by the prosecutor include whom the child attached to, who the child go to with an issue, how each parent relates to the child, the time span they spend with the child every day, how often they make the child’s meals, how frequently they clean the child, read the child stories and put the child to bed, are the parents capable of separating the child’s needs from their very own and how loving is the child with both parents (CAE, 2013). The main difficulty with the “interest of justice” rule is with high-profile cases: whereas small in number, such cases occupy an unequal amount of the justice system assets and have upsetting consequences on children (Hurder, 2007). The non-legal (interpersonal, emotional, as well as relationship) issues normally complicate and fuel the legal issues. This is mainly right in high-profile cases. However, high-profile is established into the system when one spouse has motivations to be adversarial. Mothers have a strong motivation to obtain physical custody of their children (Johnson, 2011). After the physical custody hits the 60% mark, the father is only responsible for financial aid. The above statistics demonstrate how most cases end (Hurder, 2007). Whatever the affirmed objectives of family courts, or, in fact, even the objectives of the couple first getting into the system, it rapidly becomes obvious that there is a large financial gain for the mother to get sole care. This bias is not a problem of affordability or accessibility, but it is a basic issue of equality and fairness (Genn, Partington & Wheeler, 2006). Even joint custody does not essentially mean that parents evenly split their children’s physical guardianship. Below one-quarter of children with joint custody stay part of the time with both parents. Over two-thirds reside solely with their mother (CAE, 2013). Even when the guardianship and court orders specify more equal division arrangement such as shared supervision, the mother can still deny access with impunity at any moment just because, unlike child support court orders, no territories or provinces have custody enforcement methods. The realization of the insignificance of the "in the interest of justice" rule has provoked what is variously considered as a holy war or a turf battle (Hurder, 2007). Rivals of multidisciplinary practice cover the fight in apocalyptic terms. At stake are the core values and independence of profession, now endangered by an attack of profit-exploiting infidels (CAE, 2013). Opponents fear that lawyers will become liable to overseers from a diverse tradition with less thorough principles governing confidentiality, pro bono services and conflicts of interest (Genn, Partington & Wheeler, 2006). Family law will, in reality, become just another money making endeavor and Canadians will pay the price when professional judgments are based on the "in the interest of justice" rule. Followers of multidisciplinary practice perceive the effort in less superior terms (Johnson, 2011). From their view, the stakes are money and status. Professionalism, on the other hand, is a window covering for protectionism; lawyers are unwilling or unable to compete and are trying to miscast individual interests as public morals. References Canadian Association for Equality (CAE). (2013). Beyond wise words: The status of fathers in Canadian family courts. Retrieved from http://equalitycanada.com/research/beyond-beyond-wise-words-the-status-of-fathers-in-canadian-family-courts/ Family Justice Working Group (FJWG). (2012). Meaningful change for family justice beyond wise words. Retrieved from http://www.westcoastleaf.org/userfiles/file/FJWG%20report%20Meaningful%20Change%20Consultation%20Jan%202013.pdf Genn, H., Partington, M., & Wheeler, S. (2006). Law in the real world: Improving our understanding of how law works. Ottawa: Nuffield Foundation. Hurder, A. J. (2007). The lawyers dilemma: To be or not to be a problem-solving negotiator. Clinical Law Review, 14(1), 253. Johnson, D. (2011). The legal profession in a smart and caring nation: A vision for 2017. Toronto: Canadian Bar Association. Trebilcock, M., Duggan, A., & Sossin, L. (2012). Middle income access to justice. Toronto: University of Toronto Press. Read More