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Phantom Menace – Sharia Courts

Posted by Don McLenaghen on May 12, 2011

Sharia Law courts – why?

There has been much talk in the news a few months back about Sharia Law[1] and its imminent takeover of the American legal system[2]. Some of us may remember that there were similar fears in Ontario[3] a few years back when Sharia Courts were imminent there. This led me to ask myself what was going on…was Canada becoming Can-Arabia[4]?

Beth Din, London 1920s

First there is a difference between having Sharia as the law of the land. Countries like Saudi Arabia or Iran have legal systems based on Sharia. For the most part, these countries laws are similar to our own with some noteworthy exceptions, such as stoning[5] for ‘adultery’ or the chopping of hands for theft (SA in 2007 and Iran in 2010). Because these legal systems are based in the Abrahamic Traditions; they are incredibly patriarchal and ‘biased’ towards women just like Cannon Law or Beth Din.

Now although it is true that when some people use the term Sharia Court as a ‘code-word’ for racist sentiments they mean the abandonment of the Charter and our constitution and its replacement of it with the Quran; when we say that Sharia is coming to Canada or the USA we do NOT mean that the current criminal law system will be ‘replaced’ by Sharia. The role of Sharia is for civil arbitration cases. Arbitration is the process where two parties in a civil dispute, such as a disagreement on the terms of a contract, may select a third party who will hear both sides and make a legally binding settlement on both parties. Who gets to be the arbitrator is determined by the original contract or by mutual agreement of the parties. The method of or ‘rule of thumb’ used by the arbitrator to make their decision is likewise defined or left up to the arbitrator(s). This means that, with regards to religious courts, as long as we have arbitration, anyone can agree that the arbitrators are holy men and the ‘rule of thumb’ could be religious law. It’s also equally likely… that the disputants could use actors (Patrick Stewart and William Shatner for example) as arbitrators and use Star Fleet Command’s Prime Directive as the ‘rule of thumb’. Arbitration in our country allows the disputants almost complete freedom of choice here; the only limitation is that the arbitrator’s decision cannot contravene Canadian law. So an arbitrator cannot say one people must become the slave of another nor have a hand amputated. It should also be noted that the Charter of Rights trumps all other laws, however its role in this debate I will discuss this later on.

Biblical Family Law

Now that we have this understanding, one could make the argument that the debate over Sharia (or any other religious courts) is a false controversy. However, there is one area of civil law that does pose a problem; that is family law. Family disputes, such as divorce or child support, are considered a civil dispute and as such can be subject to arbitration. This is where religious courts come into conflict with civil society. As mentioned earlier, religious courts tend to be heavily biased towards men and rules based on religious text are often a discriminatory towards women and leave them a victim of the proceedings. For example it is the man’s right to declare a divorce (Cannon law does not even have divorce), not the women’s; thus condemning the woman to remain entangled irrespective of her wishes.

This became a huge issue in Ontario when their law on arbitration was changed to read that “under subsection 32 (1) it is provided that the parties under arbitration are free to choose the legal framework by which their disputes will be settled so long as the results are not prohibited by law.” This was first seen as an acknowledgment of the existing Jewish and cannon ‘courts’ that had existed in the province for years and provide them a ‘normal’ legal context. It was also seen as an opportunity for Muslims to gain equality by setting up their own Sharia courts under arbitration. It was acknowledged that for some time Catholic and Jewish courts had existed in the province and as such Muslims should be given equal rights. As the law was enforced to deny the Muslims…. Sharia Courts would be discriminatory; however to allow them was seen as ‘anti-western’.

Here I am of two minds. First and strongest, I do not believe ANY religious courts should be allowed; that said IF they are allowed I cannot not see how you could deny them to all… equally … whatever their beliefs.

In practice this could mean that in theory at least, in in a prenuptial agreement, if a couple agreed to arbitrate any marital disputes through a religious court with religious law as the guiding precedent; then it would be impossible for the woman to get a divorce…or receive alimony or custody of her children. This would almost guarantee that the women would not receive a fair ruling.

It came up in our show that women did not have to worry about these religious courts because they would not supplant the Charter rights. Some argue that any ‘unfair or discriminatory’ ruling by the religious court (or any arbitration board) could be appealed/set-aside because of our Charter rights. However, I don’t think that would ultimately help. My initial defence (actual an appeal to authority so I acknowledge it may be valid it is not great skepticism), is that if the answer to this issue was so obvious and simple then why was there such legitimate criticisms from family advocates and woman’s rights groups?

“The National Association of Women and the Law, the Canadian Council of Muslim Women, and the National Organization of Immigrant and Visible Minority Women of Canada argued that under Shariah law, men and women are not treated equally. They argued that women fare far worse in divorce, child custody and inheritance matters under Sharia. For instance, a woman can only inherit half as much as a man can. If a divorced woman remarries, custody of the children from her previous marriage may revert to the children’s father.”[6]

Now, it would appear at that they would be aware of constitutional remedies to these “inequalities” and yet they were actively opposed to the religious courts. However to be a good skeptic, I have other reasons I think a reliance of the charter may fail. A warning, what follows is my own thoughts and research – I am not a constitutional lawyer and thus this may have inaccuracies that render my position moot.

First, who would be challenged with Charter rights violation? When a divorce is issued, like the marriage, it is a kind of contract between to individuals; this is why it’s done in civil court and not criminal court; that the arbitrator is technically only mediating an agreement and not actually party to it. You may accuse the arbitrator as being ‘unequal’ but they are not actually violating ones rights, it’s the parties to arbitration (husband/wife) and thus the woman would be in a weird situation of suing themselves. This is why when the Supreme Court rules on arbitration, it does comment on the arbitrator or arbitration but on whether the item at hand being arbitrated (such as extra billing or the handling of private information) is subject to arbitration in the first place. Thus, much of family disputes are radially seen as arbitrate-able and thus not subject to Charter challenges.

Second, due to the innate voluntary nature of the proceedings, it is difficult (in a legal sense) to challenge an arbitrator’s decision because one felt it was ‘unfair’…the whole point of arbitration it to accept the ruling regardless of the outcome. There would seem to a be a flood of litigation is the ‘benchmark’ for making a constitutional challenge is simple one felt ‘slighted’ by an arbitrator’s decision…a decision one voluntarily and legally agreed to abide by prior to the arbitrator’s decision. Any challenge made could be summarily dismissed as an individual dissatisfied over the arbitrator’s decision not for reasons of discrimination but because they were simply unhappy with the decision of the board. I do acknowledge on this point, that what qualifies as ‘voluntary’ is very debatable however even her, it would seem not a charter challenge but a criminal charge of coercion if one party was forced into religious court.

Thirdly, the ‘religious courts’ are not actual courts. Legally speaking each is essentially an ad hoc arbitration board that HAPPENS to be religious in nature…the term Sharia court, Cannon or Beth Din are legally fictional titles for a board of arbitration. As such, each decision is unique so to apply a charter remedy would be difficult; that even if we accepted that rights were violated you could not make a systematic difference only a ‘case-by-case’ setting-aside of an arbitrator’s decision. This would seem to both violate the premise of arbitration as well as be unfeasible.

Of course, all of this could be side-step is arbitration boards were forced to use principles of Canadian jurisprudence which accepts the equality of all parties regardless of gender and other things we take for granted. After much discussion and lobbying by feminist and family groups the root of the problem was uncovered; that being “religious law” would be the ‘rule of thumb’ for any legal processing…at least with regards to family law. Therefore Ontario amended the law to add that Family arbitration as being arbitration that is “conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction”. This put Ontario into line with the other provinces which always had Family Law as a special class of arbitration free from religious contamination. Of course, none of this changed anything for other civil disputes which is why there are ‘religious courts’ in Canada but this falls under the standard arbitration rule that two parties may select whomever they wish to rule of disputes by whatever mechanism they choose.

Sharia Courts are a phantom menace because they never existed. For those wishing equality always had it. The composition of arbitration boards could always have been Qadi (Islamic justices) or Rabbi…and the rule-of-thumb could have been ‘holy text’…and still can be (with the exception of Family law). Thus there was nothing to grant them. On the other hand, there is nothing to fear because arbitration boards have always had ‘complete’ freedom and thus Sharia courts are no more ‘corrosive’ than any other arbitration boards. This seems to me to be a controversy fuelled on one side by a group who wished to assert a cultural independence (perhaps just to ensure control over a community?) and on the other side by a xenophobic types worried that any ‘foreign’ sounding thing regardless of its actual impact (or lack thereof). Religious courts are simply linguistic fancy on a legal fiction.

On a related them, but beyond the scope of this post is the other end of culturally sensitive law – Aboriginal Sentencing circles. Sentencing Circles are an attempt to provide culturally sensitive sentences to Canada’s aboriginal population who have suffered from institutional discrimination in our legal system. A quick look at the level of native incarceration shows how systemic this inequity is. This is quite different from these religious courts and IF there is interest we can do a segment on this issue in a future episode.

[1] Technically Sharia law is a redundant statement; Sharia means (roughly) religious law of Islam.

[4] I use this term to mock those who would report on the impending creation of “eur-arbia”. In no way do I fear, predict or expect the islam-ification of Canada or Europe.


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