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Oct. 21, 2005
Ontario makes waves
Does religious arbitration still have a prayer?
DAVE GORDON
The recent decision by the Ontario provincial government to prohibit
private religious courts has caused an uproar among Jews and Muslims
alike, pitting a church-state issue against a freedom-of-religion
issue.
Ontario Premier Dalton McGuinty announced the ban on a Sunday afternoon
last month, in a one-on-one media interview without his cabinet
members present, instead of in an official government statement.
Religious groups say their frustration was compounded as the announcement
was made secretively, suddenly and without interfaith consultation
with the province's officials.
"Calling in one reporter was unorthodox on a very sensitive
issue," said Frank Dimant, executive vice-president of B'nai
B'rith Canada.
McGuinty made the statements in a telephone interview with the Canadian
Press, but later would not answer follow-up questions from other
media. "I've come to the conclusion that the debate has gone
on long enough," the premier said.
"There will be no religious arbitration in Ontario.... The
debate over sharia (Muslim religious) law has caused us to
ask a pretty fundamental question: Can religious arbitration be
part of a cohesive multicultural society? It's become apparent to
me that it cannot."
Dimant said he felt it would have been more appropriate for there
to have been, "Some discussion prior to this kind of thunderbolt
hitting all of us."
McGuinty met only with Ontario Attorney General Michael Bryant to
review a report on sharia, and they decided religious arbitration
violated the principle of one law for all.
"Certainly, it was no reason to disallow everyone else to function
under the law," Dimant said, referring to the 1991 Ontario
Arbitration Act, which has allowed Ontarians with family and commercial
legal matters to enter into binding arbitration, both religious
and secular, as an alternative to lengthy and costly court proceedings.
The only stipulations have been that both parties agree to it and
that the arbitrators' decisions do not violate Canadian law. The
Ontario Arbitration Act also meant those unhappy with religious
tribunal rulings always had the option of using the province's Supreme
Court to appeal.
Now, Orthodox Jews and some Christian leaders may soon join forces
with fundamentalist Muslims in seeking to promote fairness and regulation
in religious arbitration. Orthodox Jews have used religious tribunals,
or beit din, to settle disputes for centuries. But their legal binding
is no longer clear in Ontario.
Dimant said that the general Muslim community could not achieve
a consensus on permitting sharia law in Ontario, but other religious
arbitration has been working. "The fundamental principle here
is that there are never complaints against Jewish or Christian mediation,"
he said. "They have proven themselves to be able to function
under Ontario law."
Plans to introduce an Islamic system sparked protests two years
ago. In 2003, the Islamic Institute of Civil Justice was formed,
seeking state sanction for Islamic tribunals. Recently, the campaign
culminated in protest rallies in 12 cities across Canada and Europe,
in which activists said that sharia is discriminatory because, under
most interpretations, women may not initiate divorce proceedings,
custody of children is granted to fathers and sons inherit more
than daughters.
The Ontario government recently commissioned a review from former
New Democrat attorney general Marion Boyd to address the issue.
She recommended that the province allow and regulate sharia arbitrations
in much the same way it does Christian and Jewish tribunals. With
the new decision, faith-based arbitrations will continue, but they
will no longer have the government's imprimatur.
Supporters of sharia law insist it can be fair, and charge the government
with grossly misunderstanding Muslim law.
"Premier McGuinty has caved in to Islamophobic and xenophobic
arguments that have characterized the debate over the place of Islamic
faith-arbitration," said a statement from the Islamic Society
of North America, the Islamic Circle of North America, the Islamic
Social Services Association, the Muslim Association of Canada and
the Federation of Muslim Women.
If intense lobbying doesn't succeed, the Muslim groups will consider
launching a court challenge to the proposed change in legislation
under the Charter of Rights and Freedoms, Katherine Bullock of the
Islamic Society of North America said.
Mark Freiman, honorary legal council to the Ontario Canadian Jewish
Congress, said he would prefer further consultation and a fair process
that identifies problems the province has with each faith-based
arbitration process individually.
"I am disappointed at the lack of meaningful consultation.
Quite a radical change of course was undertaken," he said.
"I'd be very sad if the only way to resolve this is to rush
off to court. I think there are other solutions that people of goodwill
on all sides want to address."
The province's decision will not affect a get (Jewish divorce).
In Ontario, gets are issued by a separate tribunal, Beth Din Zedek,
overseen by Rabbi Mordechai Ochs. His court issues about 150 writs
of divorce a year in Toronto, and rarely gets involved in financial
issues. Most other beit din cases involve business disputes and
a minority involve family issues such as custody, assets and inheritance.
The government's move will have no effect on the 1990 amendments
to the federal Divorce Act, which required husbands to remove all
religious obstacles before a civil divorce can be granted.
Freiman said he thinks the challenges can be worked out in a way
that achieves a fair compromise. "People should be stepping
back a moment and focusing on what the issues are," he said,
"and what the challenges are. Look at those problems, even
at this late date, rather than offer a glib solution. I am morally
convinced the answer to the challenge is not a blanket ban on religious
arbitration."
Dave Gordon is a Toronto freelance writer. His work can
also be found in the Toronto Star, National Post and the
Forward.
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