Report says Ont. Muslims have right to use religious law in family disputes
Keith Leslie
Canadian Press

Monday, December 20, 2004

TORONTO (CP) - Ontario Muslims should have the same rights as other religious groups in the province to seek arbitration based on religious laws for family disputes and inheritance cases, concludes a report by former attorney general Marion Boyd.

Some Muslim groups called Boyd's report "naive," and said she fell victim to pressure from right-wing fundamentalists who want to use the 1,400-year-old Sharia law to settle divorces and custody disputes for Muslims in Ontario. "We're being very clear, this is not Sharia law," said Boyd.

"This is Muslim religious principles within Canadian law."

Boyd said her report avoided the term "Sharia" law because as practised in Middle East countries it combines criminal and civil laws, and allows the death penalty for adultery. It also considers a woman's testimony to be worth half that of a man's.

"We're talking about arbitration based on certain religious principles . . .similar to our Charter values of equality, freedom and justice," she told reporters at a news conference.

"What exactly are these Muslim principles?" asked Tarek Fatah of the Muslim Canadian Congress.

"For her (Boyd) to come here and lecture Muslims as to what Muslim family law is, and Sharia is, is despicable and racist."

Fatah said most Muslims in Ontario want to be treated as equal citizens. Proponents of Sharia in Canada are not concerned about settling family law disputes, he added.

"They are concerned at bringing justification for introducing Sharia, and legitimizing it in Pakistan, in Iran (and) in Saudi Arabia," he said.

"She has been listening . . .to the Muslim fundamentalists . . .that this was not about Sharia."

Under Ontario's Arbitration Act, introduced by Boyd in 1991 when she was attorney general in Bob Rae's NDP government, people can agree to bypass the courts to seek arbitration "based on a shared set of religious values and rules that may be different than Ontario law."

But Boyd stressed that cultural groups should not be allowed to stop people from having access to laws and court processes available to all. And she said provincial and federal laws would have to be respected by any arbitrator, regardless of the religious principles being used to guide the dispute.

"We are talking about the use of Muslim principles with respect to family law, within the context of Ontario and Canadian law."

Boyd also called for additional safeguards to protect people from being forced into religious-based arbitration, including a recommendation for every party to have independent legal advice before agreeing not to take the case to court.

Her critics say Boyd undermined those protections by also allowing people to waive their right to legal advice before they agree to arbitration instead of going to court to settle a dispute.

"I need to sound the alarm on a recommendation that poor women should be allowed to waive their fundamental right to an independent legal opinion," said Marilou McPhedran, legal counsel to the Canadian Council of Muslim Women.

"Marion Boyd today has given legitimacy and credibility to the right-wing racists who fundamentally are against equal rights for men and women."

Boyd was appointed last June to study the issue after the Islamic Institute for Civil Justice said it would in effect establish a Sharia court in Ontario to handle family matters.

Another of her 46 recommendations would require mediators to screen each party separately about issues of power imbalance in the relationship and domestic violence before they enter into a religious-based arbitration agreement.

Boyd also called on the government to work with mediators and other professional organizations to develop a standard screening process for domestic violence in arbitration cases.

"Tomorrow in Tehran, in Jeddah, in Pakistan, in Kabul, in Sudan, every newspaper will say that Sharia has been approved by Canada," predicted Fatah.

"They will not come to this press conference to hear 'Well, we're not talking about Sharia, we're talking Muslim principles.' "

A spokesman said Attorney General Michael Bryant would not be available Monday to comment on the report, but added the government would study Boyd's findings "very closely."

 The Canadian Press 2004