Justice in Canada
TORONTO – Jurisprudence in Canada, a country that prides itself for its progressive human rights positions, took a hit in December when former Attorney General Marion Boyd released her long-awaited report on the permissibility of Sharia law under the Arbitration Act of the Province of Ontario. To the astonishment of almost everyone involved in the debate, Boyd ruled in favor of the patriarchal religious code that governs the lives of Muslims.
It’s hard to fathom what Boyd was thinking when she opened this Pandora’s box. In spite of evidence that Sharia law isn’t working as it is supposed to in a single country around the world today, she makes 45 recommendations that further complicate the already flawed Arbitration Act she was asked to examine.
The report drew opposition from women’s groups and many others across the country. The Canadian Council of Muslim Women said, “Sanctioning the use of religious laws under the Arbitration Act will provide legitimacy to practices that are abhorred by fair-minded Canadians, including Muslim women.”
Written with the best of intentions to clear the backlog of family and civil cases clogging the courts, the 14-year-old Arbitration Act gives religious and cultural groups the clout to resolve these disputes through private and binding arbitration. While Catholics and Protestants have not yet used the act, rabbinical law for Jews began as soon as the act came into force in 1991. In 2003, Mumtaz Ali, a retired lawyer, formed the Islamic Institute of Civil Justice, recruited a panel of arbitrators and announced that Sharia law would be used to resolve disputes among Muslims. After all, if the Arbitration Act was acceptable for others, how could Muslims be denied?
Islam has no hierarchy, so various authorities can interpret Sharia law, which is based on the Koran, according their personal understanding. While those who favor Sharia insist the “correct” version is fair to women, even Muslim scholars in Canada cannot agree on the interpretation. So how did Boyd, who was the attorney general of Ontario when the act was adopted, presume it would work here?
The report’s title, “Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion,” is the first hint at the dizzying array of convoluted phrasing that follows. Boyd claims what she has condoned is not Sharia but rather “Islamic principles of justice.” Many feel it reads like an apologia for polygamy, family violence and unilateral divorce proceedings. She dismisses concerns about the permissibility of polygamy (Sharia allows four wives), deferring to the definition of “spouse” in Ontario: “In spite of [polygamy] being a Criminal Code offense, throughout Canada, it is possible to have more than one married spouse, as long as the marriages took place in a jurisdiction that recognized the ceremony,” she writes in the preamble.
The report concedes that “alternative dispute resolution may provide a venue for continued abuse after the breakdown of a relationship, and therefore safeguards must be in place.” That it contains pages and pages of concerns – on issues of marital assault, child support, property disputes – and still recommends the system is proof, say the women’s groups, that she was hoodwinked by advocates like Mumtaz Ali.
Most vulnerable will be refugees and immigrants who do not speak either official language – French or English – who are unaware of the Canadian Charter of Rights and Freedoms and who are most likely to be coerced by family and community pressure to submit to Sharia – like it or not.
While legal experts on both sides of the debate pick over the ramifications of the report, women’s groups are going to the barricades. “There is no one, codified, agreed-upon law on which this statement of principles could be based,” said Alia Hogben, executive director of the Canadian Council of Muslim Women. While Boyd calls for more lawyers and legal assistants to educate and advise those who go to arbitration, Hogben counters that “public funds should be used to improve the justice system, not to fund religious materials.”
The general public is mostly flabbergasted, unaware that such an eventuality was possible in Canada’s secular system. Some are calling for an end to the Arbitration Act in whole or in part. Most feel that religious law has its place – in the church, synagogue, mosque or temple, but not in the government’s courts. Meanwhile, Islamic associations in other provinces, Manitoba for example, are contemplating their next steps in following Ontario’s lead.
Boyd’s report is now in the hands of the premier of the province, Dalton McGuinty. Throw it out, Mr. Premier, throw it out.