Canada: Using Shariah law in Ontario a threat to all women

Leaders in majority Muslim countries could say, "Look, Canada is doing it," Ms. Mir-Hosseini cautioned.

Far from being of concern only for Muslim women, the use of faith-based arbitration in family law has implications for all Canadian women, Ms. Mir-Hosseini pointed out, since in her opinion all conservative religious groups -- Muslim, Christian and Jewish -- have an interest in controlling women.

An expert in gender in Muslim family law and a visiting fellow at the Wissenschaftskolleg in Berlin, the Iranian-born Ms. Mir-Hosseini is in Canada on behalf of Women Living Under Muslim Laws, an international feminist network.

Faith-based arbitration is already being used under Ontario's Arbitration Act of 1991, Brendan Crawley, spokesman for the Ontario Ministry of the Attorney General, confirmed. "We are aware of Jewish groups, Christian groups, and Ismaili Muslims that have used it successfully," said Mr. Crawley.

The ministry is reviewing recommendations on family law in the arbitration act in a report submitted by Marion Boyd in December. "It is a priority for the government. They are working on it diligently," said Mr. Crawley.

Proponents of using Muslim religious law in Canada say it would be a way of affirming Muslim identity.

Gamal Solaiman, imam of the Ottawa Mosque, said "Canada is multicultural, multifaith," and pointed out that since other groups are allowed to use their religious law, Muslims should have that right, too. Mr. Solaiman said there is no reason to fear women's rights may be violated, because arbitration is voluntary, and women can set out their terms before entering into any agreement.

Ms. Mir-Hosseini agrees with Canadian Muslim women's groups, such as The Canadian Council of Muslim Women in Canada, who say Muslim women must have access to Canadian law, not Muslim religious law, which is open to interpretation.

The Koran is for the most part ethical and egalitarian, said Ms. Mir-Hosseini, who describes herself as a "believing Muslim." But as she explained, the Muslim community is as diverse as the majority community, and includes liberal and conservative elements.

The danger is that under an arbitration act that allows anyone to act as arbitrator, traditionalist imams reading the sacred text from a patriarchal perspective could make decisions depriving women of their rights.

Like Alia Hogben, the executive director of the Canadian Council of Muslim Women in Canada, Ms. Mir-Hosseini dismissed fears that the use of Shariah law in family matters could lead to punishment by stoning of women who commit adultery, because that would fall under penal law, not personal law.

However, she said Shariah-based arbitration could potentially allow polygamy, which the Koran endorses under certain conditions.

She also worries that Muslim women could lose the rights Canadian family law gives them, such as those governing alimony and child custody.

There is also the possibility that women could be pressured into arbitration, a form of "private justice" that often involves signing away the right to appeal, said Andree Cote, a spokeswoman for the National Association of Women and the Law.

Ms. Cote believes the solution is not to allow arbitration in family law at all -- as is the case in Quebec, she pointed out, where Monique Gagnon-Tremblay, the provincial minister of international relations, has made her opposition to Shariah clear.

But Grant Gold, chairman of the family law section of the Ontario Bar Association, disagrees. Without arbitration -- often used in family law cases in Ontario -- the overloaded court system would "grind to a halt," he said. "It takes a lot of cases out of the courts," he said.

Mr. Gold agrees with Ms. Boyd's report, which recommends putting safeguards into place to ensure that arbitration is fair and not coercive. If a decision made by an arbitrator is not acceptable, there is, in theory, recourse to the courts.

by Maria Kubacki, published on Friday, April 15, 2005
© The Ottawa Citizen 2005