Shariah Ignites Firestorm in Canada

Page 28
Q-News, Issue 361
March 2005

The law in Canada’s largest province, Ontario, allows for faith-based independent dispute resolution. Orthodox Jews and Christian churches have been doing it for almost 15 years. So why are critics so upset by attempts by the members of the Muslim community to do the same? Faisal Kutty explores the thorny issue.

The plan to use formal panels of imams and Muslim scholars to resolve family-law disputes in Ontario - Canada’s largest province and home to over 400,000 Muslims, is neither radical nor subversive. Since 1991, the Ontario Arbitration Act has allowed Orthodox Jews and Christians to submit to voluntary faith-based alternative dispute resolution (ADR).

Bowing to pressure from critics, the Ontario government - who had at first given its blessing to Muslim use of the Arbitration Act, referred the matter to former provincial Attorney General Marion Boyd. Boyd was asked to assess whether a plan by members of the province’s Muslim community to use Islamic principles in settling marital and inheritance disputes should be halted. 

Boyd’s opinion has been categorical: “The Arbitration Act should,” she writes in her 150-page report released in December, “continue to allow disputes to be arbitrated using religious law.”

Iranian women and the secular Canadian Council of Muslim Women (CCMW) led the campaign against allowing Muslims to use the Arbitration Act. At times the opposition verged on Islamophobia. Soon after the initiative was announced, the International Campaign for the Defense of Women’s Rights in Iran, endorsed by about half a dozen women’s rights and humanist groups, declared that “this attempt [to set up this tribunal] will make it possible for political Islam to gain legal credibility to attack women’s rights.”

The media amplified the hysterical reaction of opponents. “Canadian judges soon will be enforcing Islamic law…such as stoning women caught in adultery,” screamed one headline. “Canada Allowing Shariah Barbaric Laws?” read another. Even the usually sober Globe and Mail got in on the act with a front-page story entitled, “Tribunal will apply Islamic Law in Ontario.”

Among the more than 650,000 Canadian Muslims, opinions range from wholehearted endorsement to fear that tribunal decisions will be biased against women. Some are clearly confused about the whole initiative. For instance, in a position paper on the issue CCMW president, Alia Hogben, writes: “We see no compelling reason to live under any other form of law in Canada, and we want the same laws to apply to us as to other Canadian women. We prefer to live under Canadian laws, governed by the Charter of Rights and Freedoms, which safeguard and protect our equality rights. Although the judicial system is not perfect, we know that there are mechanisms for change.”

This leaves the inaccurate impression that Muslims in Ontario would be forced to refer matters to the tribunal and would have no protection under the Canadian Charter of Rights and Freedoms. In fact, any ADR process would be voluntary, and both parties to any dispute must participate willingly. Moreover, any decision rendered by a tribunal or a panel of mediators would be subject to appeal to the civil courts and would have to be consistent with the supreme law of the land, the Canadian Charter of Rights and Freedoms. Lastly, ADR would only be available in private disputes and only in areas that can be resolved privately under Canadian law. Shariah is not coming to Canada and there will be no Shariah courts.

Boyd’s considered verdict came after meeting with more than two hundred people and receiving almost forty submissions. Boyd makes forty-six well thought out recommendations, including:

• amendments to the Family Law Act and the Arbitration Act to ensure that the mediation and arbitration agreements are legally treated in the same manner as marriage contracts and separation agreements;
• calling for regulations to ensure proper record keeping, mandating written decisions, and training of arbitrators;
• imposing a duty on arbitrators to ensure that parties understand their rights and are participating voluntarily;
• providing for greater oversight and accountability, including empowering courts to set aside arbitral awards for various reasons including if a party did not understand the nature or consequences of the arbitration agreement;
• public education and community development; and
• expanded appeal possibilities

Critics have not been silenced. Guns blazing, they have called the report a “betrayal” of women and “racist.” Nonsense.

Boyd, with impeccable feminist credentials, has balanced the rights of Muslims who wish to voluntarily resolve their private disputes using religious principles with the basic rights of vulnerable segments within the community. In other words, the recommendations ensure that there is substance to religious rights while simultaneously protecting a vulnerable minority group member’s basic rights as set out in the Charter of Rights and Freedoms. The fact is many Muslims wish to use arbitration, which is part of Muslim tradition. Indeed, the Quran specifically refers to arbitration in the context of matrimonial disputes: “If you fear a breach between them (man and wife), then appoint an arbitrator from his people and an arbitrator from her people. If they desire reconciliation, God will make them of one mind. God is all knowing, all aware.” (Sura An Nisa, verse 35)

Boyd’s report merely affirms the Constitutional right to religious freedom, equal treatment under the law, multiculturalism and ensures that Ontario is in compliance with Canada’s international obligations. Indeed, Article 27 of the International Covenant on Civil and Political Rights, to which Canada acceded on 19 May 1976, imposes a positive duty on a state to assist its minorities to preserve its values by allowing them to enjoy their own culture and to profess and practice their own religion.

The forty-six recommendations addressed the legitimate concerns raised and ignored the alarmist rants of some opponents who sought to exclude Muslims from using existing Ontario law. The Arbitration Act allows parties to settle their disputes using any principles they wish, whether they be Christian, Jewish, Muslim or otherwise. Other communities have successfully implemented Alternative Dispute Resolution initiatives with much less hue and cry. For instance, rabbinical courts or Beth Din’s dealing with business and matrimonial issues have been functioning for some time in Ontario. Christians and others have also made use of the Act.

Some have criticized Boyd’s position that independent legal advice (ILA) can be waived by a party if they wish. As it stands now, nobody can be forced to obtain an ILA for any legal matter - though this may be moot as this leaves it open for courts to set aside any agreements or arbitral decisions. Forcing ILA would be great for the legal profession but - as pointed out by the Law Society and Bar Associations - would seriously restrict the ability of people to bargain freely or settle issues without a lawyer and would clearly represent unnecessary intrusion by governments into the private domain. 

I can appreciate that many are concerned about the exploitation of Muslim women. However, the discourse is now bordering on being racist. For instance, critics contend that there is no way to ascertain true consent, as Muslim women will be forced to cave in to social pressure and accept unfair decisions. The concern is valid but is not restricted to Muslims and can be partly addressed by imposing duties on arbitrators. Moreover, the situation may be no different in the legal setting where the vast majority of cases are settled out of court and where parties compromise for less than their legal entitlements in many cases without legal advice. Indeed, a growing number are now resolving their disputes, including family matters, themselves or through paralegals who, in many cases, act for both parties without any consideration as to whether the parties appreciate what rights they are giving up.

The Canadian legal system is based on the premise that in private settings, individuals with legal capacity can make their own decisions and agreements even if these may not be the “correct” choice according to the majority. Should Muslim women not be allowed to sign marriage contracts, separation agreements or settle any disputes without independent legal advice (ILA) while everyone else can exercise this choice?

A paternalistic attitude toward the Muslim community will not solve the issue of social pressure and may in fact alienate many. Moreover, as Boyd quite accurately points, precluding arbitration would not only limit people’s options for resolving their disputes, it may also “push the practice of religious arbitration outside the legal system altogether, thus limiting the court’s ability to intervene to correct problems.”

Alternative dispute resolution is already being practiced within the community and people are abiding by decisions. These decisions, in some cases unjust and crude, are treated as if they were the word of God and therefore binding. Formalising the process will allow for greater transparency and accountability. As long as there are proper procedures and rules of conduct in place there is nothing preventing the community from instituting a dynamic and less disruptive alternative to the adversarial court system.

Boyd has kept intact the integrity of the alternative dispute resolution system while protecting the vulnerable and ensuring that “back alley arbitrations and mediations” are minimised as much as possible.

The Ontario government should accept Boyd’s report and move on. Muslim communities elsewhere eager to establish alternative dispute resolution should watch this debate closely and learn from the Canadian experience.


Faisal Kutty is a lawyer with the firm of Baksh & Kutty and general counsel for the Canadian-Muslim Civil Liberties Association. He is currently an LL.M. candidate in civil litigation and alternative dispute resolution at Osgoode Hall Law School of York University.