By Faisal Kutty

Lawyers Weekly

March 24, 2006

September 11, 2005 is etched in the minds of many Ontario Muslims. On that fateful Sunday, Premier Dalton McGuinty announced his decision to preclude 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”.

This was neither the march of political Islam nor the establishment of a parallel court system. In fact, as the Attorney General’s office kept reiterating at the time, no changes had been made to the law since its enactment. The Act allowed parties to resolve their private disputes – commercial, ecclesiastical or family – through voluntary arbitration. Given that the IICJ was simply using existing Ontario legislation, the government had no positive duty in the process. Indeed, other religious groups had been using the Act for years.

Among the provinces 400,000 Muslims, opinions ranged from wholehearted endorsement to the genuine fear that tribunal decisions will be biased against women. Some thought of it as a panacea that would solve their inability to live as “good” Muslims.

A combination of misunderstanding, ignorance, and the careless pronouncements by both sides, as well as inaccurate and biased media coverage helped fuel a firestorm. Many uncritically 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. Opponents of political Islam and secular Muslims, who saw the initiative as the lead chariot in the procession of Islamizaton, mobilized their resources and reacted swiftly on a global level. At times the discourse verged on Islamophobia.

Due to mounting pressure from women’s groups and two secular Muslim groups, the government formally asked former attorney general and women’s rights advocate Marion Boyd to look into the issue. In her December 2004 report, Boyd was categorical: “The Arbitration Act should continue to allow disputes to be arbitrated using religious laws.” The government made no public comments on the report, but because of the political hot potato it had become decided to take the easy way out. The Premier’s decision was formalized last month with the passage of the Family Statute Law Amendment Act, 2005 (the “FSLAA”), which precludes the use of any religious laws in family law arbitrations.

Disturbingly, all three parties jointly took away a right that was available to Ontarians since 1992 without any concrete evidence of harm. They acted on speculation and against the recommendations of the government’s own report. Clearly a first in Ontario. Meanwhile, “back alley” arbitrations will continue throughout the province unregulated and unsupervised.

In the months leading up to the 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 it appeared that the government had no choice but to continue to allow religious arbitrations with additional checks. The groups argued 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 consistent with Canadian laws. In essence, arbitrations using religious principles should not be rejected outright.

The Canadian Jewish Congress advanced the same view 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 suggestions were rejected outright without any reasons. As counsel Mark Freiman 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 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.

These proponents contend 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. Consenting and informed adults must be able to make religious choices even if others do not believe these are “correct” choices.

Both sides of the debate realize the significance of this battle over “Islamic arbitration.” Opponents speculated that a victory by the “fundamentalists” in Canada would have given credence to those who stand behind 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.

Note: Faisal Kutty is a lawyer with the firm of Kutty, Syed & Mohamed. He is a board member for the Canadian Council on American Islamic Relations and serves as general counsel for the Canadian Muslim Civil Liberties Assocation. He can be reached at fkutty@ksmlaw.ca.

Tags: Dalton McGuinty, Ontario

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