Canada: Protest rises over Islamic law in Ontario

Toronto Star
When Britain's Muslim community requested the right to use Islamic law to settle family disputes, the government's refusal was unequivocal.
No, the petitioners were told: This is one nation, with one justice system for all.
Until last fall, no Western jurisdiction allowed the 1,400-year-old body of religious law called sharia to take root inside its secular legal system.

Then the province of Ontario quietly approved its use. Under the 1991 Arbitration Act, sharia-based marriage, divorce and family tribunals run by the Islamic Institute of Civil Justice are expected to begin later this year. The move has so horrified many Muslim women that they're vowing to stop the tribunals before they start.

"We've had a flood of e-mails from people, asking 'How can we help?'" says Alia Hogben, president of the Canadian Council of Muslim Women, whose 900 members come from a variety of Islamic sects.

They were outraged that Muslim women could be coerced into taking part in sharia tribunals or face family and community ostracism - or worse.

Why, they asked, should these women be treated differently from other Canadian women?

"When you come to Canada, you are a human being with full rights," says Jonathan Schrieder, a Toronto civil litigation lawyer. Allowing sharia here - even a "Canadianized" version, as its proponents claim - "will subject Muslim women to a huge injustice."

Schrieder is so alarmed at the prospect that he, like a half-dozen other Toronto lawyers, has offered his services pro bono in the fight to halt it.

Many others are appalled that Ontario is setting a precedent that other secular nations will be pressured to follow.

To writer Sally Armstrong, whose work has taken her to several Muslim countries, Ontario's move is a "human rights catastrophe."

Her 2002 book, Veiled Threat, described the oppression of women in Afghanistan under the extreme sharia rule of the Taliban, but she has also documented their harsh lot in nations such as Pakistan, Bangladesh and Jordan. Sharia interpretation varies from culture to culture, but in no instance does it regard women as equal to men.

"Sharia law doesn't work as it is supposed to work in a single country," says Armstrong. "Why does Ontario's justice system think it will work here?"

The attorney-general's office has repeatedly said the Arbitration Act contains safeguards; that participation must be voluntary by both parties; and that women may appeal to the civil courts if they feel a decision doesn't abide by Canadian law.

Mumtaz Ali, the Islamic Institute for Civil Justice president who worked for a decade to bring sharia into Ontario's legal system, says the women needn't fear they will be treated unequally. He, too, has repeatedly said the arbitrations will be subservient to Canadian law and charter provisions.

Armstrong, however, doesn't want to see sharia anywhere near Canada. "Canadian women won't let it happen without a protest," she predicts. "We spent 30 years working on family law and equality rights to ensure that women and children are safe in this country. We'll stand up to be counted on this."

They'll soon have the opportunity. On Sat., June 26 at 7: 30 p.m., the International Campaign Against Sharia Court in Canada will hold a public meeting at Orial Community Centre, 2975 Don Mills Rd. On Sept. 8, a series of international demonstrations will be held in cities across Canada, and in Britain, Sweden, Germany, France and Finland, with other countries to be confirmed, says campaign co-ordinator Homa Arjomand.

Her group and the Muslim women's council are leading the fast-growing movement against the tribunals. They're lobbying Queen's Park, raising awareness among women in the community, and are in the process of drafting legal arguments. They want to show a so-far unmoveable attorney-general's office that family law must come out of the Arbitration Act altogether and return to the civil court system.

The National Association of Women and the Law is preparing a research paper on how sharia, by definition, undermines Canada's equality rights.

That's a subject lawyer and policy analyst Marilou McPhedran knows a lot about. In 1981, she was one of the authors of Section 28, the last-minute addition to the Charter of Rights that guaranteed equal rights and freedoms to male and female persons - "not withstanding anything else in the Charter."

That means, she says, that it trumps other charter sections which prohibit discrimination to individuals ("not groups") on the basis of religion, among other things, and which call for the "preservation and enhancement" of Canadians' multicultural heritage. McPhedran remembers that former prime minister Jean Chretien, then federal attorney-general, initially resisted adding a separate section, saying that discrimination on the basis of sex was already covered elsewhere in the charter.

"We wanted it in because women in closely controlled cultural, tribal and religious communities needed it. We said to him, 'What would you do about female genital mutilation? You've got to include gender rights.'"

Chretien agreed.

That means the Muslim women's case against sharia arbitrations is strong and compelling, says McPhedran, who as co-coordinator of the International Rights Project has travelled to several Islamic countries.

Their legal argument would be that "it is wrong for any government, any attorney-general, to stand by and allow a provincial law to be used in a way that perpetuates discrimination against women," she says.

Section 28 of the charter has not yet been tested, but McPhedran thinks this could be the case to do it.

A charter challenge, however, requires a case and a litigant. It would mean the sharia tribunals would have to be set up, and a Muslim woman, who'd gone through the process, who would charge that her equal rights had been undermined.

That could take years.

It doesn't have to come to that, says McPhedran. Instead, the Muslim women's groups could make a case prospectively that "it is highly probable the act will perpetuate inequality and have a severe and disproportionate impact on women."

"That," she adds, "should wake up the attorney-general."

One of the reasons cited by Ontario in allowing sharia tribunals is that Hasidic Jews have been using the act for years in domestic arbitrations based on Jewish law. How then can Muslims be denied access?

"The assumption is that everything has been wonderful with the Orthodox arbitrations," says McPhedran. "Let's just find out how wonderful it's been. There are too many assumptions happening here." She suggests holding an impartial inquiry, with confidentiality guaranteed for Hasidic women to come forward and report their experiences.

The province is in a self-created bind by allowing religious groups to use the act in the first place, says family lawyer Todd Morganstein. "Either Ontario removes all religious groups from the act or it brings in real rules requiring them to follow fundamental principles of equality. But some cultural practices are simply not consistent with that."

Critics say that reality can't be glossed over in an attempt to respect religious diversity, say critics.

It won't happen if McPhedran has her way. Lawmakers have to remember that they have an overriding obligation to vulnerable populations, she says.

"Many Muslim immigrant women come from tribal and traditional cultures that are the most oppressed in the world. They are among the most vulnerable of all new Canadians."

When McPhedran ran into Attorney-General Michael Bryant last week, he made the commitment to meet with her on the issue of sharia arbitrations.

It's a start, she thinks.