The Reconciliation of Religious Freedom and Gender Equality in Ontario’s Family Courts

The goal of this paper is to shed light on the history of Sharia Law in Canada and to provide an analysis of how Sharia law has been integrated into Ontario Family Law, specifically looking at the clash between gender equality and religious freedom. Canadian citizens in Ontario who are devoted to the Islamic faith claim the right to use Sharia law to resolve family disputes. However, many women’s rights advocates claim Sharia family law does not reflect principles of gender equality. The global migration of religious traditions and communities, specifically the integration of the Islamic church and Sharia law in Canada has been a result of globalization in the form of increased ease of transportation and permanent migration. This issue is important because freedom of religion and gender equality are fundamental human rights identified by the Canadian Charter of Rights and Freedoms.

This paper will achieve its goals by approaching the issue from the perspective of three key stakeholders: the state, the public and the Islamic church. Section one will view the issue from the perspective of the state, namely the province of Ontario and the federal government of Canada including the provincial and federal courts. Section two will approach the problem from the perspective of the public in Ontario. The “public” in this context consists of the general population of Ontario including religious groups not affiliated with the Islamic church, citizen not affiliated with the federal or provincial government, non-religious citizens and the media. Section three will approach the problem from the perspective of Islamic men and women and will look at the historical context of Sharia law globally, and the issues around the legal integration of Sharia law into Ontario’s family courts specifically related to equality rights.

Section One: from the perspective of the state

The Canadian Constitution is the highest form of law we have in Canada. Part one of the Constitution Act (1982), called the Canadian Charter of Rights and Freedoms, protects the human rights of Canadian citizens. Section 15 of the Charter protects equality rights, stating that “every individual is equal… and has the right to equal protection and equal benefit of the law without discrimination... in particular, without discrimination based on… religion (or) sex”. However, Section one of the charter clearly states that these rights and freedoms are not absolute, and can be limited, if the limits are shown to be “reasonable in a free and democratic society”. Canadian family law was originally based on Christian religious principles and the bible. Family law are made to reflect evolving values and behaviors; however, they often lag behind contemporary norms. For example, the concept of divorce was not recognized until 1856, and many laws recognizing the rights of married women were not made until the late 20th century.

Matters related to child protection, adoption, custody, access, spousal and child support fall under the jurisdiction of the Ontario Court of Justice, while divorce and post marital property disputes are heard in the Ontario Superior Court. The state encourages settlements, rather than judicial decisions are encouraged as much as possible in family law to reduce unnecessary financial and emotional strain. To encourage settlements between two parties the government subsides processes like mediation and arbitration. Ontario’s Arbitration Act allows citizens to assign an arbitrator to resolve civil disputes outside the traditional court system. The Islamic Institute of Civil Justice proposed that this act granted their right to use Sharia law arbitration tribunals to resolve Islamic family matters. After Muslim Canadians advocated for this right the Ontario Government commissioned the Boyd Report (2004), which recommended that Sharia law tribunals be allowed if they adhered to forty-six safeguards. A two-year public debate and protests ensued, culminating with the Ontario Premier at the time, Dalton McGuinty stating his government “will ensure that… there will be no binding family arbitration in Ontario that uses a set of rules or laws that discriminates against women” (Chotalia, 2011). The Arbitration Act and the Family Law Act were then amended by the province to reflect this statement, and the Sharia tribunals have since been largely discontinued.

Section Two: from the perspective of the public

As discussed in Section One, the Ontario public played a significant role in getting the Arbitration Act and Family Law Act amended to provide greater protection for women’s rights, at the expense of the Sharia Tribunals. The “public” in this context consists of the general population of Ontario including religious groups not affiliated with the Islamic church, citizen not affiliated with the federal or provincial government, non-religious citizens and the media.

The majority opinion held by the public was represented in Premier McGuinty’s statement. Protesters like Homa Arjomand, who lead the International Campaign Against Sharia Courts in Canada claimed that allowing the tribunals would push Canadian law back 1,400 years. Arjomand also stated that “[my] lawyers are studying the decisions of several arbitration cases and will bring them to court and expose how women are victimised by male-dominated legal decisions based on 6th- century religion and traditions”. Another protestor, Nasrin Ramazanli stated that “If the Shariah is used in Canada, I also feel threatened here”. However, the resulting amendments resulted in other faith-based tribunals, like the Jewish family courts, being banned. This was upsetting to certain members of those churches who felt they had unfairly been punished as a “side effect” of the protested Sharia tribunals, while other claim those tribunals were similarly unfair to women (Strauss, 2005).

Section Three: from the perspective of Islamic men and women

Sharia, or Islamic Law are derived from principles of the Islamic faith, specifically the Quran. Muslims consider the Quran to be the actual word of Allah (god) and therefore sacred. Sharia is thought to date back to sometime between the 6th and 10th century. Many countries currently follow Sharia Law including Saudi Arabia, Iran, Afghanistan, Sudan and Yemen. Sharia law is complicated, and difficult to understand without extensive study. That being said, Sharia Law has many basic and identifiable differences from the Canadian common law system.

Sharia Law has been criticized for favoring punishment over rehabilitation, and it’s shocking treatment of women. For example, drinking or even handling alcohol in places like Saudi Arabia can earn a minimum seven-year prison sentence, and crimes like petty theft are punished by chopping off the thief’s hand. In relation to family law and women’s rights there are some shocking differences. A female inherits half of what a male heir inherits, a man can call for a unilateral divorce while a woman needs the husbands consent, a man can beat his wife based on “insubordination” (Quran 4:34), a man can have up to four wives, including infants and can consummate the marriage when the girl turns nine years old. Additionally, a female requires four male witnesses to prove rape (Quran 24:13), and if she does not produce four male witnesses, she is guilty of adultery. A woman found guilty of adultery can by punished by death.

Based on these laws, the reason for the heavy protesting against Sharia Tribunals in Ontario becomes clear. The perspective of certain members of the Islamic church in favor of Sharia tribunals can be represented by two quotes. The first is from Irfan Syed, a chairman of the Muslim Lawyers Association in Toronto. He stated that 'In truly multicultural countries, this (Sharia Tribunals) are quite common. It's a legitimate way to give religious communities some autonomy within the scope of our law. The two can exist because the Canadian courts have an ultimate supervisory capacity'. The second quote is from Richard Fidler, who argues that the 'anti-sharia' protests 'unfolded against a backdrop of anti-Muslim propaganda related to the Iraq war, the growing threats to Iran, and Israel's ongoing repression of the Palestinians as well as Canada's increasing military involvement in Afghanistan' (Sturckle 2011).