Dec. 28, 2004. 01:00 AM
Courts must have final say on arbitration
By THOMAS WALKOM
The Toronto Star
Former Attorney General Marion Boyd's report on the use of Islamic law in
Ontario has drawn considerable flak. Much of the reaction is ill-considered;
some verges on hysteria. To some, the very idea of Islamic arbitrators
solving civil disputes produces images of faithless wives being stoned.
In fact, a few Islamic "courts" already exist in Ontario and no one has been
stoned yet. As well, other groups particularly Orthodox and Conservative
Jews take advantage of Ontario's broadly written arbitration act to use
their own religious rulings in civil disputes and to ensure that these
rulings are legally enforced.
In effect, Boyd is asking: What's wrong with all Muslims doing the same
Phrased that way, few can disagree. But the real issue has nothing to do
with Muslims. Rather it has to do with a more fundamental question: Should
different kinds of people living in the same province be governed by
different kinds of laws?
The philosophy behind arbitration is laudable. Many private issues can be
solved outside the courts. Ontario's 1991 Arbitration Act (passed when Boyd
was minister responsible for women's issues in Bob Rae's New Democratic
Party government) is built on this notion.
Its essence is this: In certain civil and family law disputes, disputants
are permitted to settle matters under any set of laws they wish. If they
want to use Roman Catholic canon law, that's fine. If they want to use
Togo's commercial law, that's fine too.
There are two main restrictions. First, both sides must agree to the set of
rules they choose to be bound by. Second, the arbitrator's remedy cannot be
illegal in terms of Ontario secular law.
Hence, no stoning.
The key to the 1991 act, however, is that once delivered, a ruling is
legally binding. Even if it is based on laws that have no status in Ontario,
it is enforceable in Ontario courts.
For commercial disputes, this poses little problem. Family disputes,
however, particularly those involving divorce, child custody and support
payments, are trickier.
When passed in 1991, the act attracted little attention. Religious groups
have long made use of religious law. But most disputes, such as annulments
or religious divorces, are handled outside the act and are thus legally
A Catholic denied an annulment under canon law may still receive a secular
Jewish rabbinical courts make greater use of the act, Boyd writes. But even
here, the numbers are small. In only about 30 cases a year do rabbinical
courts issue edicts (usually on matters of property division and custody)
that require secular court enforcement.
Islam's Ismaili sect has long had an organized arbitration system. And a
Toronto Sunni mosque has operated tribunals based on Islamic law since 1982.
Given all of this, what's the problem?
Quite a bit, say some Muslims. Indeed, it has been the complaints of the
faithful that have fired this controversy, not the prejudices of the
ignorant. Both the Canadian Council of Muslim Women and the Muslim Canadian
Congress have come out strongly against giving state sanction to Islamic
rulings in family matters. As practised, they say, these rulings tend to be
fundamentally unfair to women.
These critics argue that Muslim women will be under tremendous pressure to
accept Islamic court rulings even though, technically, they need not do so.
Boyd's response is that informal Islamic courts already make judgments, some
of which are contrary to Canadian law (she cites cases of underage girls
being forced to marry). Better to regularize matters by bringing these
courts under the general umbrella of the Arbitration Act, she says.
To this end, she recommends keeping the principle of religious courts but
strengthening the Arbitration Act to ensure that all are treated fairly. For
those who insist that religious rules must carry secular legal weight, this
makes sense. For the rest of us though, it does not.
Boyd's report envisions a world in which people carry their own laws (she
calls them personal laws) wherever they go. In her view, an immigrant to
Canada is subject to both Canadian law and if he wishes to certain laws
of his native land.
At a fuzzy, theoretical level, this may seem fair. Practically, however, it
is a recipe for discrimination.
The Ontario government cannot ban Muslims from using the Arbitration Act.
That in itself would be discriminatory. But it can follow Quebec's lead by
amending the act to ensure that, in family matters at least, all religious
tribunals confine themselves to mediation and give secular courts the final
No one disputes that different people have different traditions. But laws
are not the same as traditions. Laws are the expression of the broadest
Salvation may come from God. In democracies, laws come from the people.
They should be made by duly elected legislatures. In the final instance,
they should be interpreted and judged by the courts those legislatures set