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Centre Article 065: Fears About Sharia Law Arbitration in Canada

Written by Iain Benson

March 10, 2005

Various writers in the popular press are concerned that a report in Ontario has suggested that the Arbitration Act should allow arbitrations to proceed under certain principles of Islamic Sharia law in Ontario. These writers have expressed a variety of concerns. Some suggest that recognizing Islamic religious categories will work against the rights of women since they believe Islam is necessarily sexist.

Others believe that due to the growth of extremist Islam worldwide, a country such as Canada should not be perceived as supporting Islam in any way. It is argued that any incorporation in domestic laws (even passively) gives a propaganda tool to extremists.

Some have suggested that any support of Islamic law is somehow inconsistent with the Canadian Charter of Rights and Freedoms. These arguments need to be examined in order.

Islam is inconsistent with women's rights:

There is always a tension between the beliefs of some citizens and those of others. We do not, in free and democratic societies, subscribe to a "one size or one belief fits all" philosophy. This is true, like it or not, for such things as "the role of women" in a sub-culture. If certain women in society believe, for example, that not having employment outside the home is a negative thing they are free to argue this—they are not free, however, to impose it.

The flip side is that if a woman wants to work at home rather than in the paid labour force, for example, it would be a very illiberal State (not a properly liberal one) that would use the force of general State law to preclude this. So too, it is with religious beliefs. If a person wishes to accept beliefs that others find obnoxious, that person is free (with only very general restrictions) to do so.

If a woman wants to do something that women of another belief system think is impious (whether the particular piety is religious or non-religious) that woman (again within wide parameters) should be free to do so.

For example, let us think about arranged marriages. In some traditions it is acceptable for young people to have marriages arranged by their parents. Some within these traditions accept this practice, and some do not. Some outside the traditions cannot comprehend such a restriction to freedom and reject it totally. Should arranged marriages, therefore, be made illegal? Should they, once contracted under one set of rules, be ignored under others?

That is not the end of the matter however. What if someone does not want to have an arranged marriage and his or her family insists upon one? Could such a family who wants only arranged marriages go to the civil courts to get this recognition? No, because there is a limit to the extent of religious rules in the society just as there is a limit to the non-religious rules in society.

It is the latter kind of dominance—that of non-religious rules, that we need to examine as there is a tension here of great importance and one that is all too often overlooked by those who fear religious recognition.

The tension, of course, is between a grinding secularistic dominance that wishes religion (and all religions save, perhaps, aboriginal manifestations which are justifiable as respect for the first nations coupled with "liberal guilt" for past treatment of those whose "land we stole") private and invisible and the inclusion of religious forms in the culture that are not consistent with appropriate conceptions of human freedom.

Islam and its Sharia law raise the spectre of the latter.

The question then is how can we get public recognition of religions but exclude those dimensions that threaten our basic civil liberties?

Isn't it just the flip side of how can we have basic civil liberties if they threaten the appropriate recognition of religious liberty?

I think it is and that, therefore, a reconcilable set of principles can and should be developed.

Let's try an analogy here: the Roman Catholic conception of marriage does not command public consensus or definition. Nonetheless, on matters Catholic, we allow the Catholic Church to practice its beliefs and to make those beliefs effective within its area of jurisdiction.

This means that no Catholic can go to civil courts demanding a Catholic wedding. This is how it should be. The flip side is that no citizen can go to civil courts to demand a Catholic wedding and no Catholic can go to civil courts demanding a Catholic wedding.

Why do we not extend the same recognition of community religious diversity and limited religious jurisdiction to Muslims? Their Sharia law would not have any power over basic matters of the State but on matters short of that it would for those who enlisted. Should people wish "exit" from that religious set of rules they could get it by leaving the jurisdiction of the religion.

Does Recognition of a Limited Role for Sharia Principles Mean Canadians Support Islamic law Generally?

Society is made up of all sorts of communities of belief—some of which, to be sure, do not even realize that they are "communities of belief." Atheists and agnostics have their communities as well and command tremendous power in society since, for one thing, they pretty much control the law, medicine and public education (not to mention higher education).

They shouldn't control everything.

Let us look at the Catholic Church. It is allowed jurisdiction over certain matters particular to its faith. Well and good. But should a Catholic be subjected to civil penalties for failing to live up to the rules of his or her religious faith? No. The flip side is also true however. The civil authorities must not use their position of dominance over most things (and far too many) to restrict the proper exercise of religious principles within its own jurisdiction.

What is that jurisdiction exactly? Ah, here is the key question and one that will occupy the courts in future. Some things are clearly religious and based upon freely chosen religious duties. Other things will be an extension beyond a proper religious role. The question is how far is too far?

That can only be decided on a case-by-case basis but we have already some experience in this with court decisions involving other religious groups or institutions:

  1. Jehovah's witnesses can refuse life-saving blood transfusions for themselves as adults but not deny them to their children: the principle here is "the best interests of the child" with the state acting as the parent in terms of preserving life; see B.(R.) v. Children's Aid Society of Metropolitan Toronto (1995), 122 D.L.R. (4th) 1 (S.C.C.);

  2. In relation to ensuring that children are not damaged by the religious teachings of a parent, very cogent evidence of risk of harm to the child would have to be adduced where, for example, in a custody dispute, it is sought to limit the access of one parent to the children for religious reasons (again, Jehovah's Witness faith) : see Young v. Young [1994] 4 S.C.R. 3 (religious restraints removed by Court) and P. v. S. (1993), 108 D.L.R. (4th) 287 (religious restraints kept in place because there was some evidence that the father's religious discussions were disturbing his daughter) ;

  3. Orthodox Jews can have their religious beliefs to erect prayer tents respected even though the erection of such tents on balconies contravenes strata-title rules at the apartment building; (Syndicat Northcrest v. Amselem 2004 SCC 47). The State has a duty to respect the religious beliefs of citizens where the practice (here the establishment of eruvs—a small wire or filament demarcating a public space as enclosed for the purpose of Jewish religious practices) can be accommodated. see: Rosenberg v. Outremont. (Rosenberg v. Outremont [City] Quebec Superior Court File No. 500-05-060659-008 )

  4. Roman Catholics can deny religious rites (such as communion) to those who live outside the teaching of the faith and, on occasion, can terminate the employment of those who deny Catholic teachings where such teaching is part of the religious framework (such as a Catholic school, Caldwell v. Stuart);

  5. Evangelical Protestants can have a Code of Conduct in an educational setting that prohibits and attach consequences to breaches of such codes even though the conduct (adultery, alcohol consumption or homosexual sexual conduct) is allowed outside the religious institution—even where the religious institution gets some benefits from the State (Trinity Western University, LexView 46.0).

No one should be the prisoner of a religion and all must be allowed to leave. This will have consequences and no one is free from the consequences of the beliefs held nor can everyone expect the general law of the State to preserve him or her from all such consequences.

The State on the other hand has no proper jurisdiction to interfere with the religious beliefs of citizens or to interfere with matters that are properly religious. The use of arbitration procedures to sort our religious difficulties makes sense as long as we recall the margins of where the religious beliefs encounter the beliefs outside themselves so that the proper jurisdiction of each is preserved.

Thus, in a free and democratic society, a limited arbitration model for matters properly within Islamic faith is perfectly acceptable and ought not to give any good propaganda value to extremist Islam.

The Canadian Charter of Rights and Freedoms

This document assures a variety of rights for beliefs of all sorts. Every category of the "fundamental freedoms" in Section 2 involve the beliefs of citizens—beliefs that can be either religious or non-religious in origin.

Freedom of conscience and religion is stipulated in Section 2(a) and the freedom of "thought, belief, opinion and expression. . ." in Section 2 (b) and "the freedom of peaceful assembly" in Section 2(c) while Section 2 (d) guarantees the "freedom of association."

Obviously, recognition of and protection for conscience, religion, thought, belief, opinion, expression, peaceful assembly, and association that have a religious basis are guaranteed by the Charter.

Those who argue otherwise are simply ignorant of the Charter and the nature of the free and democratic society it claims to affirm.