Ontario Report Affirms Right to Use Islamic Principles in Arbitration

By Faisal Kutty

“The Arbitration Act should continue to allow disputes to be arbitrated using religious law…” concludes Ontario’s former Attorney General Marion Boyd in her 150-page report (<http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/>).

Boyd was asked by the Ontario government to review the 1991 Arbitration Act and assess whether a plan by some of the province’s 400,000 Muslims to use Islamic principles in settling marital and inheritance disputes should be halted, following vociferous opposition (see May 2004 Washington Report, p. 70).

Many commentators and news outlets that did not understand the issue amplified the hysterical reaction of opponents. “Canadian judges soon will be enforcing Islamic law…such as stoning women caught in adultery,” screamed one headline. Worried another, “Canada Allowing Sharia Barbaric Laws?”

Sharia is not coming to Canada, and there will be no sharia courts. Some Canadian Muslims simply wish to use Islamic principles to resolve their disputes within the context of Canada’s legal system.

Boyd’s considered verdict, released in December 2004, was reached after meeting with more than 200 people and receiving almost 40 submissions. Among her 46 well thought-out recommendations are:

amendments to the Family Law Act and the Arbitration Act to ensure that the mediation and arbitration agreements are legally treated in the same manner as marriage contracts and separation agreements;
a call for regulations to ensure proper record keeping, mandating written decisions, and training of arbitrators;
imposing a duty on arbitrators to ensure that parties understand their rights and are participating voluntarily;
providing for greater oversight and accountability, including empowering courts to set aside arbitration awards for various reasons, including unconscionability, inadequate financial disclosure, or if a party did not understand the nature or consequences of the arbitration agreement;
public education and community development;
expanded appeal possibilities; and
further policy analysis to determine whether additional safeguards are required.

Sharia is not coming to Canada, and there will be no sharia courts.

Critics have called the report a “betrayal” of women and “racist.” But Boyd, who has impeccable feminist credentials, has balanced the rights of Muslims who wish to voluntarily resolve their private disputes using religious principles with the basic rights of vulnerable segments within the community. In other words, her recommendations ensure that there is substance to religious rights, while simultaneously protecting a vulnerable minority group member’s basic rights as set out in the Charter of Rights and Freedoms.

Many Muslims wish to use arbitration or tahkim, also part of Muslim tradition. Indeed, the Qur’an specifically refers to arbitration in the context of matrimonial disputes:

If you fear a breach between them (man and wife), then appoint an arbitrator from his people and an arbitrator from her people. If they desire reconciliation, God will make them of one mind. God is all knowing, all aware. (Qur’an, C4, V35).

Boyd’s report merely affirms Canadian Muslims’ constitutional right to religious freedom, equal treatment under the law, and multiculturalism, and ensures that Ontario is in compliance with Canada’s international obligations. Indeed, Article 27 of the International Covenant on Civil and Political Rights, to which Canada acceded on May 19, 1976, imposes a positive duty on a state to assist its minorities to preserve their values by allowing them to enjoy their own culture and to profess and practice their own religion.

With her 46 recommendations, Boyd addressed the legitimate concerns raised while ignoring the alarmist rants of some opponents who sought to exclude Muslims from using existing Ontario law. The Arbitration Act allows parties to settle their disputes using any principles they wish, whether they be Christian, Jewish, Muslim or other. Indeed, other communities have successfully implemented Alternative Dispute Resolution initiatives with much less hue and cry. Rabbinical courts, for example, or Beth Dins(rabbinical courts) dealing with business and matrimonial issues have been functioning for some time in Ontario. Christians and others also have made use of the Act.

Waiving Independent Legal Advice

Some have criticized Boyd’s position that independent legal advice (ILA) can be waived by a party if he or she wishes. As it stands now, no one can be forced to obtain an ILA for any legal matter—though this may be moot, as it leaves courts open to set aside any agreements or arbitral decisions. Forcing ILA would be great for the legal profession but—as pointed out by the Law Society and Bar Associations—would seriously restrict people’s ability to bargain freely or settle issues without a lawyer and would clearly represent unnecessary intrusion by governments into the private domain.

While many critics sincerely are concerned about the exploitation of Muslim women, the discourse now borders on being racist. For instance, some contend it is impossible to ascertain true consent, as Muslim women will be forced to cave in to social pressure and accept unfair decisions. The concern is valid, but it is not restricted to Muslims, and can be partly addressed by imposing duties on arbitrators. Moreover, the same may be true in the legal setting, where the vast majority of cases are settled out of court and parties often compromise for less than their legal entitlements, in many cases without legal advice. Indeed, a growing number of Canadians are now resolving disputes, including family matters, themselves, or through paralegals who in many cases act for both parties without any consideration as to whether the parties appreciate what rights they are giving up.

The Canadian system of justice is based on the premise that individuals with legal capacity can make their own decisions and agreements, even if these may not be the majority’s idea of the “correct” choice. Should we not allow Muslim women to sign marriage contracts, separation agreements or settle any disputes without independent legal advice (ILA) while everyone else can exercise this choice?

A paternalistic attitude toward the Muslim community will not solve the issue of social pressure and may in fact alienate many. Moreover, as Boyd quite accurately points out, precluding arbitration would not only limit Canadians’ options for resolving their disputes, it may also “push the practice of religious arbitration outside the legal system altogether, thus limiting the court’s ability to intervene to correct problems.”

Alternative dispute resolution already is being practiced within the Canadian Muslim community and people are abiding by decisions. Even when these decisions are unjust and crude, they are treated as if they were the word of God, and therefore binding. Formalizing the process will allow for greater transparency and accountability. As long as there are proper procedures and rules of conduct in place, nothing prevents the community from instituting a dynamic and less disruptive alternative to the adversarial court system.

Boyd has kept intact the integrity of the alternative dispute resolution system while protecting the vulnerable and ensuring that “back alley arbitrations and mediations” are minimized as much as possible.

In this writer’s opinion, the Ontario government should accept Boyd’s report and move on.

Faisal Kutty is a lawyer with the firm of Baksh & Kutty (<www.bakshkutty.com>) and general counsel for the Canadian-Muslim Civil Liberties Association. He is currently an LL.M. candidate in civil litigation and alternative dispute resolution at Osgoode Hall Law School of York University. He can be reached at <faisalkutty@yahoo.com>.