Religious Based Tribunals;

A conference at Falconer hall, University of Toronto Law School, May 3, 05.

Canada considers itself as a liberal country, but is home to many world views that are inherently illiberal. This was the message of Jasmine Zine, the panelist from the South Asian legal Clinic of Ontario (SALCO).

The other panelists were Raj Anand, who has argued charter cases before the supreme court, Annie Bunting, with a new PhD in law, and Zaira Zuberia, a community worker with Moslem women.

Contrary to popular perceptions, there have been religious or culturally based courts in Canada for almost twenty years. There are aboriginal courts with their sentencing circles of elders. There are Jewish Rabbinical courts. An organization called the Christian Legal Fellowship also operates tribunals based on Christian fundamentalism.

Arbitration is nothing new in Canada and is used for much more than family law, the main concern of religious courts. The arbitrator can be anyone the parties choose, but the arbitrators decision is legally binding, unlike in mediation. The decision must be submitted to a court. Arbitrations can be appealed on points of law. Two Rabbinical court decisions have been appealed in Canada.

The relation between arbitration and the Canadian Charter of Rights and freedoms is unsettled. Anand insists that 'the charter' is implicit in all tribunal decisions. Those arguing for 'sharia' or Islamic law, courts claim that the charter makes all religions equal. But it is counter argued that Sharia implies the inequality of women.

The matter is further complicated by the Boyd report on Arbitrations. Marion Boyd recommended the provision of independent legal advice, that the principles of the faith based arbitration be presented in writing, all decisions be in writing, and all arbitrators should have training in domestic violence. Boyd did not find any evidence of discrimination, or any complaints.

The criticisms of Madam Boyd's report, lead by Zaira Zuberia, are that it was a quick study, and no study of our 'Rabbinical courts' has ever been made. The report also a lacks a criticism of the Ontario family court system. There is no funding for legal aid for arbitration in Ontario, and this will not change despite Boyd's report.

Sharia courts are not official in Canada yet, but family counseling and mediation is going on in Mosques and many people are calling it 'arbitration.' There is much anecdotal evidence of pressure and disadvantage. Persons submitting to it may think it has the force of law, and be unaware of their rights under Canadian law.

In Sharia law, it is almost always the man who takes the woman to divorce court. He can pay alimony for three months up to a year, and then the woman depends on her family or charity. The man always gets custody of the children, unlike the "what is best for the child" practice in Canada.

Members of the audience pointed out that Imams, Moslem clergy, tend to base decisions on culture, not sharia, and there is a vast difference among Moslem cultures. Though sharia has multiple interpretations, it is hard for most people to challenge.

However, Zuberia asserted that Sharia, meaning "the way to knowledge" began with the founding of the religious schools eight hundred years after the death of Mohammed. Too many Moslems see sharia as divine law, rather than stimulation of thought. This is being challenged by new interpretations. So, the question arises of which schools of sharia law are to be used in these tribunals.

Annie Bunting spoke of her visit to northern Nigeria to study sharia law there. She found it not as harsh as in sensationalized western media stories. But this fires up anti Islamic prejudice in Canada, such as claims that sharia law is a first step to an Islamic state in Canada. On the other hand, opponents of sharia tribunals are seen as playing to 'Islamophobia.'

Yet it is also asserted that, by using the arbitration act, minorities invite the larger community into their affairs.

The advantage of tribunals is that they are much less expensive and more accessible than Canadian family courts. Governments have an interest in people resolving disputes by themselves, thus reducing the cost of the court system.

There is no way a moratorium on arbitrations will occur. There is a lively mediation and arbitration business in Ontario. It is presently used by middle class people who prefer to "judge shop", to have some control over the principles under which the dispute will be judged.

Anand asserts that sharia puts women at a disadvantage, and the government of Canada is obligated to prevent inequality under section 15 of the charter. It could be found against for failure to act. Religious rights are not absolute; equality rights come first.

Zine said in conclusion that opponents of religious tribunals are in a delicate position between Islamic conservatism and Islamophobia.