How do you solve a problem like Shariah?

Thursday, January 27, 2005


Written by Scott Piatkowski

When presented with a political football – the controversial request by some Ontario Muslims to give legal recognition to Shariah-based arbitration panels – Premier Dalton McGuinty has chosen to hand it off to a member of another team. Normally in politics (or football), that kind of move would be seen as an embarrassing fumble. In this case, however, it was a calculated political strategy, designed to leave the members of that other team unable to decide whether they are supposed to tackle or block.

Tortured sporting metaphors aside, it is clear that Dalton McGuinty asked former NDP Attorney General Marion Boyd to make recommendations on this issue specifically so that he could shield himself from potential attacks from both New Democrats and feminists. And, given the potential ramifications of this change to the justice system, he had good reason to worry about such attacks. Under the circumstances, however, the current NDP caucus at Queen’s Park has yet to take a position on Boyd’s report – which, without using the word Shariah, recommends that arbitrators be allowed to use “Muslim principles”. This uncertainty on the part of the opposition (the Conservatives being largely irrelevant on this and other issues of the day) has conveniently obscured the fact that the government itself has yet to take a position on the issue.

Some background on the issue would be useful. In 1991, when NDP Leader Howard Hampton was Attorney General (Boyd became Attorney General in 1993), the province’s Arbitration Act was amended to allow parties who agreed to step outside of the court system to resolve their disputes. At the time, it seemed like good way to free up crowded court rooms and reduce the cost of settling legal disputes. What was not widely publicized at the time (I’m a political junkie, and I’ll confess that I missed it) was that the amended law also opened the door for certain religions to substitute religious doctrine for Ontario law – if both parties to a dispute agreed.

Those Muslims who have argued for Shariah-based arbitration (and, as I note below, there are many Muslims who oppose the idea) point out that it seems unfair to grant the right to have arbitrators apply religious doctrines for Catholics and Jews, but not for Muslims. Boyd seems to have found this argument persuasive, although it would have been equally possible for her to recommend that, in the future, all arbitration panels use Ontario law alone when settling disputes. For a number of reasons, that is an option that I and many others would have preferred.

The concept of Shariah is so loosely defined (though not quite as loosely defined as the “Muslim principles” that Boyd’s report recommends be applied) that there are many different interpretations of what it would mean if practiced in Ontario. As BBC reporter Michael Gallagher wrote in 2000, “When many non-Muslims think of the Shariah, they often conjure up an image of a public beheading or amputation. However, Shariah differs enormously in its various implementations throughout the Islamic world…. Applied fully, the Shariah extends well beyond the sphere of criminal justice. It is a code for living that all Muslims should adhere to, including prayers, fasting and donations to the poor.”

While no one seriously believes that public stonings will be coming to Ontario if Boyd’s recommendations are adopted, there are serious concerns about how the application of Shariah would affect the rights of Muslim women (just as there are legitimate questions about how doctrine from other religions can and often does discriminate against women). And, significantly, many of those concerns are being expressed by Muslim women themselves. For example, Alia Hogben, Executive Director of the Canadian Council of Muslim Women (CCMW), writes the following in a letter to Premier McGuinty and Attorney General Michael Bryant (which was published in The Toronto Star):

Ms Boyd heard from the proponents of the use of religious arbitration that they are exercising their right to religious freedom. CCMW believes that the rights of the person, in this instance the rights of women, under the Canadian Charter of Rights and Freedoms must be considered first and foremost as they protect the fundamental rights of the individual. These rights include equal treatment before the law… We recognize that members of all faith groups rely on their families and religious communities to mediate and settle disputes. Most family law disputes are resolved outside the courts and in contentious situations, mediation and arbitration by a third party might be sought, without going to a religious court or tribunal. 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.

It certainly doesn’t help when Boyd – for whom I generally have a tonne of respect – answers these questions with the curious suggestion that the principle of “consumer beware” be adopted by concerned Muslim women. In my opinion, the time for all potential “consumers” of the justice system to be aware is now, when the issue of religious-based arbitration is again under consideration. We should demand that the justice system – including any alternative dispute resolution – be based on one set of laws for all.

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