Ignorance and Islamophobia forces Ontario government to ban faith-based arbitrations in Ontario
By Faisal Kutty
September 11, 2005 is etched in the minds of many Muslims in Ontario. On that fateful Sunday, Premier Dalton McGinty announced his decision to preclude the use of Islamic principles in resolving family disputes. He also went one step further and banned the use of any religious laws in resolving family disputes under the Arbitration Act, 1991.
The controversy erupted in the fall of 2003, when a small Muslim group led by a retired Ontario lawyer announced the formation of the Islamic Institute of Civil Justice (IICJ) to provide a framework to voluntarily resolve private disputes using Islamic legal principles. The IICJ announcement gave the false impression that the Ontario government had granted them some form of special permission to establish a “Sharia Court”. Reaction was swift. Opponents of political Islam and secular Muslims who saw the initiative as the lead chariot in the procession of Islamizaton mobilized their resources.
In fact, this was neither the march of political Islam nor the establishment of a parallel court system. As the spokesperson for the Ontario Attorney General’s office reiterated to the media immediately after the announcement, no changes had been made to the law since its enactment in 1992. The Act allowed parties to resolve their private disputes – be they commercial, ecclesiastical or family – through voluntary arbitration. Given that the IICJ was simply using existing Ontario legislation to settle private disputes, as anyone was free to do, the government had no positive duty or involvement in the process. Indeed, other religious groups had been using the Act for years.
A combination of misunderstanding, ignorance, and the alarmist and careless pronouncements by both proponents and opponents, as well as inaccurate and biased media coverage helped fuel a firestorm which attracted global attention. At times the discourse verged on Islamophobia.
Among the provinces 400,000 Muslims, opinions ranged from wholehearted endorsement to the genuine fear that tribunal decisions will be biased against women. Many were clearly confused. Some of those in favour believed it would have been a panacea to solve their real or perceived inability to live as “good Muslims” in Ontario. Many in both camps unquestioningly accepted the misunderstanding first promoted by the IICJ and later by the media that the government had approved new “Sharia Courts” with coercive power to force all Muslims to arbitrate using Islamic laws.
Due to mounting pressure from women’s groups and two secular Muslim groups, Attorney General Michael Bryant and the Minister Responsible for Women’s Issues, Sandra Pupatello, formally asked former attorney general and women’s rights advocate Marion Boyd to look into the continuation of faith-based arbitrations.
In her report released in December 2004, Boyd was categorical: “The Arbitration Act should continue to allow disputes to be arbitrated using religious laws.” The reaction from opponents was swift and well coordinated. The international campaign gained momentum and many who did not even understand the nuances and complexities of the issue continued to make irresponsible and alarmist comments.
The government did not publicly comment on the Boyd report for months, but eventually because of the political hot potato it had become decided to take the easy way out. Premier McGinty’s decision was formalized last month with the passage of the Family Statute Law Amendment Act, 2005 (the “FSLAA”), which precludes any religious laws from being used in family law arbitrations in Ontario.
Disturbingly, all three parties jointly took away the choice and a right available to all Ontarians since 1992 without any concrete evidence of harm, merely on speculation and against the recommendations of a report commissioned by the government. This is clearly a first in Ontario. Meanwhile, “back alley” arbitrations will continue throughout the province unregulated and unsupervised.
In the months leading up to the premier’s decision, I had been in consultation with the AG’s office on behalf of a coalition of virtually all the large national Muslim groups and the discussions left me with the impression that the government had no choice but to continue to allow religious arbitrations with additional checks and balances. All the national Muslim organizations were united in the position that faith-based arbitrations should continue as a protected and viable option provided that it was voluntary, that all of Boyd’s recommendations were adopted and our courts would only enforce decisions that are consistent with Canadian laws. In essence, arbitrations using religious principles should not be rejected outright as long as the final decisions are in compliance with the Charter and Canadian laws.
The same position was put forth by the Canadian Jewish Congress during FSLAA hearings earlier this year. The CJC also argued that faith communities should be involved in the development of the legislation’s regulations. Both amendments were rejected without any reasons.
As Mark Freiman, counsel for the CJC, pointed out, the legislation and the process used to develop it appear to be based on the premise that women are intrinsically incapable of vontuntarily choosing faith-based arbitration. “It assumes that faith-based approaches to arbitration are innately exploitative,” Freeman noted. “This view is insulting to all women, and to the faiths to which Ontarians adhere.”
The discussion brought to the fore a highly charged emotional debate that has been raging silently in democratic and multicultural/multireligious nations. The tension of course transcends the issue of dispute resolution and tugs at two fundamental questions. The first is how to balance the collective rights of a group with the individual rights of group members – particularly the vulnerable, women and children. The second question is how to reconcile religious rights with the separation of church and state.
Proponents of faith based arbitrations argue that religious values can be a major part of a person’s identity and can therefore influence one’s attitude and approach to conflict resolution. They further argue that they should be able to govern their lives according to their conscience within the parameters of law if the constitutional right to freedom of religion is to have any real value. The recurrent theme is that parties will participate voluntarily and consenting and informed adults must be able to make religious choices so long as this does not impact or interfere with the rights of others.
Both sides of the debate realize the significance of this battle over “Islamic arbitration.” Opponents speculated that a victory by the “fundamentalists” in Canada will give credence to those who seek to introduce Sharia in Muslim countries to the detriment of women. This betrays and ignores the evolutionary and context specific nature of Islamic law.
Ontario lost a timely opportunity to show the world how to balance these competing rights in a manner that respects all parties and protects the vulnerable; and at the same time see how Islamic law and liberal democracy can co-exist within a liberal constitutional framework.
Faisal Kutty is a Toronto-based writer and lawyer. He is a principle in the law firm of Kutty, Syed & Mohamed. He serves as a board member of the Council on American Islamic Relations (Canada Chapter) and as general counsel for the Canadian Muslim Civil Liberties Association. He was involved in consultations with the Ontario Attorney General’s office prior to the premier’s decision in the Sharia-arbitration matter. His articles are archived at http://www.faisalkutty.com
An abridged version of this article appeared in Lawyers Weekly.