Whatever the Ontario government does, it won’t satisfy everybody
by Marion Boyd
In response to loud protests over the use of shari‘a (Islamic law) in Ontario, Premier Dalton McGuinty made comments to the press in early September suggesting that he is prepared to outlaw religious courts in Ontario. While this statement was intended to end the controversy, at the time of writing (early October) the government’s intentions remain less than clear. An official statement by Attorney General Michael Bryant indicated a somewhat different course of action: to make all family law arbitration subject to Ontario family law. The Premier has promised to introduce legislation this fall, and until that legislation is available, it is difficult to analyze its impact. Whatever the government does, it is important to understand the background to the controversy and the issues at stake.
The protests were based on the mistaken impression that Ontario was about to pass legislation that would allow Muslims to deal with family law disputes through private arbitration using Islamic law and would require Ontario courts to enforce such arbitration decisions. In fact, the current law already provides for these results. I conducted a review of the Arbitration Act for the Ontario government and submitted my report in December 2004. My main recommendations were that the government make legislative, regulatory and policy changes to circumscribe and curtail the Act’s application by specifying safeguards to protect vulnerable parties before arbitration can be used to resolve family law disputes.
Islamic law became a public issue in Ontario following the announcement that a particular organization, the Islamic Institute of Civil Justice (IICJ), had incorporated as a business and would henceforth provide Muslims in the province with a “shari‘a court.” Its main proponent, Syed Mumtaz Ali, a known advocate of self-determination for Muslims in Canada in a manner similar to the rights of Aboriginals and Quebecers, proclaimed that the decisions of arbitrators would be final and binding, not subject to court review but eligible for court enforcement. He suggested that since this option was now available to Muslims, “good Muslims” would be required, as part of their faith position, to settle all their disputes only in this way.
Unfortunately, out of these statements arose a persistent myth about arbitration in Ontario, which continues to be repeated by both the media and opponents of arbitration despite vigorous efforts to correct the initial misinformation. The myth is that the Ontario government surreptitiously colluded with the IICJ and, without consultation, allowed one particular Islamic group to set up a parallel legal system, thus depriving Muslim residents of their legal rights under Ontario and Canadian law.
As already noted, Ontarians with disputes have always had the right to choose arbitration as a means of resolving their issues, including family law and inheritance matters, as long as both parties agreed to the arbitration freely and without coercion, both parties agreed to an arbitrator or arbitrators they believed would be fair, and both parties agreed on the form of law, including religious law, to be used in the arbitration. The enabling legislation, the Arbitration Act, originated in the 19th century and was updated in 1991 as a result of long discussion by the Uniform Law Conference of Canada, a group dedicated to modernizing and harmonizing laws across Canada. Ontario is one of seven provinces that adopted the recommendations of the Conference; both British Columbia and Quebec had amended their legislation prior to its report and have different provisions. Quebec, for example, specifies that arbitration cannot be used to resolve family law disputes.
The 1991 Arbitration Act amendments in Ontario increased the capacity of the courts to enforce arbitration awards and limited the grounds on which the courts could intervene once arbitration had begun within the limits of the law. Religiously based arbitration has been available in many faith communities for years: Jews, Muslims and evangelical Christians, among others, have developed and delivered faith-based mediation and arbitration, with little or no controversy in the past. IICJ was proposing to use the Arbitration Act in the same manner as it is being used by countless other businesses and organizations in Ontario to arbitrate private disputes; it had no special status with respect to the government and the government had no role in its decision to use the existing law to provide its services.
The Arbitration Act in no way permits a “parallel legal system.” However, the IICJ persists in describing its business as “the beginning of a shari‘a court in Canada,” thus fostering the apprehension of those who have experienced the harsh realities of shari‘a-based law in Islamic countries such as Iran or Afghanistan, where criminal punishments can be ordered in civil matters, the rights of individuals are subordinate to the religious dictates of the community and there is no separation between religious authority and the state. These opponents fear that the capacity to use Islamic law with respect to family law is merely the “thin edge of the wedge” and that those seeking a parallel legal system will continue to press for wider use of shari‘a over time. It is apparent that many people have little understanding of the constitutional division of jurisdiction and the enshrinement of Charter rights that prohibit the development of such a regime in Canada without a wholesale change to our entire system of government and law, a change that would not be countenanced by Canadians.
The Arbitration Act applies only to civil matters that are subject to provincial jurisdiction, such as separation, property division or support of dependent children and spouses, and matters that are not specifically prohibited by the Act, as labour disputes are. Matters subject to federal jurisdiction, such as criminal law or civil divorce, cannot be arbitrated. An arbitrator has no power to order the parties to do anything that the parties could not have agreed to do on their own and an arbitrator cannot order the parties to do something illegal under Canadian law (since the parties cannot lawfully agree to break the law). The courts retain their power to intervene in the best interests of children and to set aside arbitration decisions, as they can separation agreements, where the best interests of children are not honoured or where the decision is egregious. Judicial review with respect to fairness and equity in the process of arbitration cannot be waived by the parties.
A wide range of dispute resolution methods provide alternatives to the adversarial win/lose forum of the court system. Many family matters are entirely resolved through negotiated separation agreements that may or may not come under the scrutiny of the court. Increasingly over the past 20 years successive reviews and research have recommended increased use of mediation and arbitration. For example, the Civil Justice Review in Ontario (1995) recommended that mediation should be required in all civil matters before resorting to the courts for decisions.
The studies point out a number of positive results of alternate dispute resolution: the quicker time frame for resolution, the lower cost, the reduction of emotional stress, the specialized expertise that can be brought to bear on sensitive issues, and the sense of personal agency felt by the disputants. Those who do mediation and arbitration maintain that, when the parties are engaged in the process, they are more likely to respect the outcome, even if that outcome was not what was anticipated or desired. Those advocating religiously based mediation and arbitration argue that parties must have the right to choose to have their matters heard by those who understand their religious priorities, who respect their traditions and who speak their language (both literally and figuratively); the results have both legal and religious authority, thus encouraging compliance on both secular and religious grounds.
Opponents of alternate dispute resolution mechanisms believe passionately that those who are vulnerable, primarily women and children, are always at a disadvantage when private decision-making processes are used. They point to the prevalence of violence against women and children in all communities as an indication that women do not have equal access to power: a balance of power between parties is essential for mediation and arbitration to work as intended. These concerns are magnified when religiously based arbitration is proposed, particularly given the public pronouncements that have been made by some Muslim religious leaders about the role and position of women in society. The opponents portray women, and particularly Muslim women, as being unable to resist the pressure of religious leaders, their families and their communities, fearful that they will be ostracized by the only support system they have. In these circumstances, the essential element of choice in how to deal with family disputes becomes moot; the individual rights of women and their children could be subordinated to the rights of the community.
This is the crux of the problem. Canada is a multicultural society and the constant tension that must be addressed is between respect for the rights of minority groups and the protection of the rights of individuals within those groups. The most vocal opponents of arbitration, the National Association of Women and the Law (NAWL) and the Canadian Council of Muslim Women (CCMW), have urged the government to stop the use of arbitration altogether for family law matters and to follow the example of Quebec, where the Quebec Civil Code prohibits the use of arbitration for family disputes.
As a condition of Confederation, Quebec was allowed to retain its civil law, based on the Napoleonic Code of France; other provinces, like Ontario, are rooted in the British case law tradition. Family law provisions in Quebec are quite different from those in Ontario in many respects. The Quebec Civil Code, for example, requires mandatory mediation of all family matters, a requirement that was opposed in Ontario by NAWL on the same grounds of unequal bargaining power. The Ontario government listened and, although mediation is encouraged, it is not mandatory in family law disputes in Ontario, and Ontario requires that parties to mediation be screened for previous and current abuse in the relationship before mediation can occur. NAWL and CCMW maintain that women’s equity rights are best protected by streaming all family disputes through the public court system and that the government should focus its attention on improving court-based responses.
I undertook an extensive consultation in reviewing the Arbitration Act. I found that even those supporting the use of arbitration in family matters believe that the law must be changed to provide additional safeguards for vulnerable parties. At the time the Arbitration Act was passed in 1991, scrutiny of legislation and regulations to determine their impact on gender, race, religion, age and so on was in its infancy. Since then, public policy makers have developed a methodology to apply various lenses to proposed policies to determine whether they prejudice any particular vulnerable group and how these defects can be remedied. Had such a methodology been applied to the Arbitration Act in 1991, it would have been readily apparent that its provisions do have the potential to disadvantage vulnerable women and children. This is particularly so if religious laws differ from Canadian laws with respect to such matters as support of dependent spouses and children and custody arrangements.
I was assured over and over again by Muslim leaders that, when Muslims live in a non-Islamic country, they are required to follow the law of the country where they reside. The problem is that the Arbitration Act currently does not require that family law matters be conducted in accordance with Ontario and Canadian law. Many of the 46 recommendations coming out of the Review focus on bringing arbitration agreements and decisions under the Ontario Family Law Act, so that they are subject to the same laws that cover separation, domiciliary and paternity agreements, and so that the same grounds to appeal to the court are available to those choosing arbitration.
The Review also recommends extensive changes in regulations with a view to protecting vulnerable people. Among other areas, these changes cover the making of arbitration agreements, the keeping of files, the provision of written decisions and reasons, the provision of full disclosure of which religious principles might be used, the availability of independent legal advice, and the screening of parties for a history of abuse. The Review recommends the regulation of both mediators and arbitrators and urges that a process for public monitoring of decisions be instituted so that any erosion of individual rights through the use of arbitration can be detected and remedied if seen. I concluded as a result of the Review that the key issue at stake in our multicultural democracy is how to protect individual choice and yet promote the full inclusion of communities within Ontario under our laws.
I also recognize the need for extensive public legal education and community development to ensure that parties know what choices of dispute resolution are available and what the consequences of their choices might be. It was apparent that, within the dominant community as well as in minority communities, knowledge of family law is sadly lacking and needs to be addressed. All of us have an array of options for resolving family disputes and, in the settlement of those disputes, we each have priorities that govern our personal choices. For some of us, those priorities include religious principles and community participation. At issue is how to provide the tools and support to ensure that, whatever an individual’s priorities might be, she or he is able to make choices free of coercion and in the full knowledge of the basic rights available under Ontario and Canadian law. No matter how good our laws are or how fair our processes, it is still incumbent on individuals to make use of those laws and to object when the processes are not fair and equitable. Part of the task is to ensure that every resident of Ontario has both the knowledge and the means to access the law’s protection.
It is apparent that the government faces difficult choices. If it ends the use of religious law in arbitrations, as Premier McGuinty’s remarks suggested, it will be taking away religious rights that have been enjoyed by various groups over many years. The response to his comments indicates that the government will undoubtedly face Charter challenges as a consequence. Moreover, informal arbitration within the community will inevitably result, thus ensuring that vulnerable individuals have no protection under Canadian law.
If it ends the use of arbitration in family law altogether, removing a valued option from all residents, the already struggling court system will be inundated with new cases, resulting in unconscionable delays and costs in resolving family matters. If it does nothing, the status quo will prevail and the vulnerabilities identified in the Review will not be addressed. If the government implements the legislative and regulatory changes recommended in the Review, it will be with the knowledge that these changes will not satisfy the most vociferous opponents, some of whom have also signalled an intention to initiate Charter challenges. If it implements these changes without taking action on public legal education and community development to enable all communities and individuals to understand and use the law effectively, those most vulnerable to coercion and abuse will have little access to laws intended to protect them.
Given the level of the controversy, the government must come to grips with this difficult issue soon and clearly state its intentions. Whatever it decides, it must accept that it cannot please everyone. Nevertheless, the government has an urgent responsibility to act. It has an opportunity to take a balanced approach that addresses the competing rights expressed by proponents and opponents alike and that supports Ontario’s policy position on equity in family law and multiculturalism. I hope the government will have the political courage to implement the comprehensive recommendations of the Review which aim to achieve this balance.
Marion Boyd was an NDP member of the Ontario legislature from 1990 to 1999 and served in the cabinet of Premier Bob Rae from 1990 to 1995. She was commissioned by the current Attorney General, Michael Bryant, and Minister Responsible for Women’s Issues, Sandra Pupatello, to adivse the government on the use of private arbitration to resolve family and inheritance cases, and delivered her report, Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion, in December 2004.
Marion Boyd just doesn’t get it
by Tarek Fatah
There are many places where Marion Boyd demonstrates her preconceived notion about Canada’s Muslim communities, but the one that stands out prominently is her remark, “I was assured over and over again by Muslim leaders that, when Muslims live in a non-Islamic country, they are required to follow the law of the country where they reside.”
Whom did she consider a Muslim leader? How did she confer the title of “leader” on them and what barometer did she use to ascertain who was a “good” Muslim and who was a “bad” one? As one of many Muslims who presented our opposition to the introduction of shari‘a into Canada’s judicial system, I am witness to the fact that she dismissed any ideas from Muslims who did not fit her profile of Muslimness.
Here is what some prominent Muslims said about substituting for-profit, private-sector judges-for-hire using a law that did not exist for Ontario’s Family Law Courts:
- Professor Omid Safi, who teaches Islamic studies at Colgate University in New York state, said, “The use of religious law as a substitute for laws created by Parliament, and the establishment of a multitier legal system – one for average Canadians and one for Muslim Canadians – is not only unjust, but also detrimental to the well-being of all Canadian citizens.”
- One of Islam’s leading scholars in Europe, Professor Tariq Ramadan of the University of Fribourg in Switzerland, told a magazine there was no need for Canadian Muslims to set up their own shari‘a courts, saying they are “not necessary.” He said demanding such courts “is another example of lack of creativity” among Muslims.
- In May of this year, none other than Iranian human rights activist and Nobel Peace Prize winner Shirin Ebadi took a firm stand against the introduction of Islamic tribunals in Canada, warning that they open the door to potential human rights abuses.
- York University’s Professor Taj Hashmi wrote, “The Government alone cannot stop the formation of the Sharia Board; civil society in general and liberal Muslims in particular should come forward to stop this vice, which is neither Islamic nor Canadian in character and spirit.”
- Niaz Salimi, President of the Muslim Canadian Congress, wrote in the Toronto Star, “We believe that mosques, churches, temples and synagogues have an important role to play in the community, but their role should be restricted to mediation and reconciliation, not interfering with the Canadian justice system and running a parallel private-sector judiciary with self-styled religious judges for hire.”
- CBC Radio producer Natasha Fatah wrote in her regular cbc.ca column, “There is no formal system through which you can challenge religious clerics, the masters of the Shariah universe. And if you do challenge them, get ready to be called a blasphemer.”
Did Marion Boyd pay any heed to these Muslims? Did she regard these Muslims as Muslims? Apparently not, or she would not have used the language she did. Boyd’s position that her report was a balanced approach that addressed the competing rights expressed by proponents and opponents alike and that it supports Ontario’s policy position on equity in family law and multiculturalism does not withstand scrutiny. Proposing the continuing privatization of the judicial system does neither of the above. Equity in family law cannot be served by allowing self-appointed arbiters to market their services at $200 an hour to vulnerable citizens. Multiculturalism does not get served by pushing an entire community into the hands of its priests, who would be answerable and accountable to no one.
If the Ontario government had implemented the Boyd Report, I believe the move would have further ghettoized the already marginalized Muslim community and would have played into the hands of racists who would like nothing better than to exclude Muslims from the mainstream.
Boyd refused to address the international geopolitical implications of her endorsement of shari‘a. Had Premier McGuinty accepted the Boyd Report, it would have had a profound long-term impact not only on our society, but also across the Muslim world, where progressive and liberal men and women are fighting to keep shari‘a out of the political system. In the words of Professor Safi,
We are alarmed at the prospects of repressive Muslim governments around the world pointing to Canada, and the implementation of shari‘a within Canada, as a justification for their oppressive legal systems. This is not a comment on Islamic jurisprudence as a whole, but rather on the repressive interpretations of shari‘a found in those countries. It is unrealistic to think that the ayatollahs of Iran or the proponents of Wahhabism in Saudi Arabia will not use this to promote the viability of their oppressive visions.
My position is not against religion. On the contrary, I stand for the constitutional guarantee of freedom of religion. However, freedom of religion does not mean that we dilute laws and strengthen the power of imams, priests and rabbis over their communities – and especially the most vulnerable within them.
In the end, Marion Boyd succumbed to the pressure of imams, priests and rabbis; Premier Dalton McGuinty didn’t. For once a politician spoke with courage for all Ontarians and said that while he respects the desire of religious communities to use their faith-based laws to mediate and resolve problems, it is not the business of the state to validate or endorse any set of religious laws.
Tarek Fatah is Communications Director of the Muslim Canadian Congress and host of the weekly Muslim Chronicle on CTS television. He lives in Toronto.