Dec. 21, 2004. 06:49 AMReport called 'betrayal' of women
QUEEN'S PARK BUREAU CHIEF
A proposal to allow the use of Islamic principles in settling family disputes in Ontario has been met with outrage by opponents of the plan.
Former NDP attorney-general Marion Boyd made the recommendation yesterday in a 150-page report in which she also called for new safeguards to protect the rights of women.
But she ultimately concluded that "Muslim principles" should be considered an acceptable method of religious arbitration as long as they do not violate Canadian law.
Boyd was asked by the provincial government to review the 1991 Arbitration Act and assess whether a plan by the Islamic Institute for Civil Justice to use the guiding principles of their faith in settling marital and inheritance disputes should be halted.
Catholics and Jews already have made use of the act, which is intended as a way of avoiding costly court fights when both parties to a dispute agree to do so. A divorcing couple could use the act to decide on a division of property, for example.
Opponents were quick to condemn Boyd's report, calling it "naive" and a betrayal of women.
Marilou McPhedran, counsel for the Canadian Council of Muslim Women, labelled Boyd's report "naive" in its assumptions that Muslim women would have the same choices as other women.
McPhedran said many women who could be affected are recent immigrants who might not speak English and are not given a true choice in how a divorce might be settled.
"This is a dangerous direction. It is the thin edge of the wedge. This has to be stopped now," she said.
Tarek Fatah of the Muslim Canadian Congress said Boyd has lent credibility to a system of law that has disadvantaged women in Muslim countries for centuries.
"Marion Boyd today has given legitimacy and credibility to the right-wing racists who fundamentally are against equal rights for men and women," Fatah said of the endorsement of some form of sharia law.
"The proponents of sharia in Canada are not concerned about family law, they are concerned about bringing justification for introducing sharia and legitimizing it."
But Boyd repeatedly stressed that the term "sharia" is not what is being proposed by the Islamic Institute for Civil Justice, adding the 1,400-year-old set of rules and laws covers criminal and civil matters and is often incompatible with Canadian law.
"We're being very clear, this is not sharia law," Boyd told a news conference. "This is Muslim religious principles within Canadian law."
But, she conceded, in all cases of arbitration, whether religious or not, it is up to the people involved to stand up for their own rights. "It's a bit of consumer beware that I think is very real in this area."
Boyd also said in an interview later, "I'm not naïve enough to think this is the end of it."
Although some critics are firmly opposed to the use of the Arbitration Act by any religious group, she said she couldn't "in good conscience" tell the government to end it because "it would set back family law by 30 years."
But anyone who interprets the report as giving priority to multiculturalism over female equality is "misreading" it: "It's a recognition that (sharia arbitrations) are already happening — the first one here was in 1982. But there is no way to scrutinize them.
"If they stay underground, Muslim women will be more vulnerable."
Boyd also told the news conference she believes strengthening the existing system of arbitration, including mandating domestic violence awareness training for arbitrators, will help reduce the number of informal, religious-based family dispute resolutions that happen without any oversight.
Critics of any use of sharia law in Canada point to examples of what some Muslim societies consider to be acceptable levels of spousal support when a marriage ends — anywhere from three months to a year's worth of support — compared to a Canadian norm of much more long-term support for a former spouse and children.
"I think Boyd made up her mind before she even started because she hasn't taken into consideration anything we said. It's like she didn't hear us," said Alia Hogben, executive director of the 900-member Canadian Council of Muslim Women.
Boyd's report recommends a greater right of appeal for arbitrations, but puts the onus on Muslim women to take that step, said Hogben, "but how would many women have the wherewithal to do that?"
"We just hope that the attorney-general freezes the report until a proper investigation is done," said Homa Arjomand, head of the International Campaign to Stop Sharia Courts in Canada.
The campaign argued that while, technically, Muslim women will have access to Canadian laws and court, and the legal system will undoubtedly reject oppressive decisions, "the reality is that most women (will) be coerced socially, economically or psychologically" into participating in sharia tribunals.
Boyd's report calls on arbitrators to affirm that they have interviewed the couple in dispute separately to determine that both parties are participating of their own free will and to rule out any possible domestic violence issues.
All of the groups opposed to any use of sharia said they will aggressively press the Liberal government and Attorney-General Michael Bryant to reject Boyd's findings and put an end to arbitrations that rely on Muslim laws.
But Syed Mumtaz Ali, a lawyer for the Islamic Institute for Civil Justice, said he was "delighted" with Boyd's findings and added that many of the 46 recommendations for strengthening the Arbitration Act came from him.
"It's a model for the whole world to see how sharia law can be used in a Western society," Mumtaz Ali said in an interview. He added that while sharia is a misnomer in terms of the type of family disputes at issue, he said it is the term most people recognize and associate with Muslim beliefs being applied through the law.
Mumtaz Ali said Muslim principles require Muslims to believe in one God and to commit to obeying the law in the country where they live. He said the advantage of sharia-type arbitration is that participants are compelled by their religious beliefs to uphold the law, an extra onus that will make for fair treatment of all parties in the dispute.
"Canadian laws prevail, sharia law takes a backseat," he said of the plan he envisions for arbitration.
He said many people in the community are anxious to proceed with sharia-based arbitration and plans have been in limbo awaiting Boyd's report.
Len Rudner of the Canadian Jewish Congress said the group felt Boyd struck a fair balance between the needs of the individuals and those of the community. "She appears to have done a good job of that," he said.
with files from Lynda Hurst