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No more faith-based arbitration

|Written By Kirsten McMahon - Law Times

Ontario Premier Dalton McGuinty's surpriseannouncement to ban faith-based arbitration in the province, including anybased on controversial Islamic sharia law, has left some in the legal communityscratching their heads and wondering why there wasn't more consultationsurrounding the issue.

An institutionalized faith-based arbitration system would be better for women than the back-alley negotiations that will continue, says Anver Emon.
An institutionalized faith-based arbitration system would be better for women than the back-alley negotiations that will continue, says Anver Emon.
After some vocal opposition and protests across Canada and in Europe about the government's plan to possibly continue allowing sharia arbitration under 1991's Arbitration Act, McGuinty told the Canadian Press on Sept. 11 that the government would be banning all faith-based arbitration, including Jewish and Christian arbitration schemes, through amendments to legislation.

"I've come to the conclusion that the debate has gone on long enough," McGuinty said. "There will be no sharia law in Ontario. There will be no religious arbitration in Ontario. There will be one law for all Ontarians."

Last summer, Attorney General Michael Bryant named former Ontario NDP attorney general Marion Boyd to review the province's arbitration schemes, particularly sharia, and its impact on vulnerable people.

Boyd delivered her report and more than 45 recommendations in December 2004. She found there was no evidence of discrimination toward women and that the Arbitration Act should continue to allow family and inheritance law disputes to be arbitrated using religious law as long as safeguards were put in place.

Anver Emon, a lawyer and the University of Toronto law school's first Islamic scholar, says the announcement seemed to have come out of the blue. He says the women the anti-sharia groups were trying to protect will be no better off.

"In opposing sharia arbitration, what the folks have done is basically negate an opportunity to create something new and to create opportunities both for Muslims here in Canada and human rights activists around the world to do something new, to sort of see how Islamic law and Canadian law can co-exist."

Emon says he was disturbed by the level of emotional debate on the issue — which he says was quite polemical and bordered on being Islamaphobic — because it was hard to find a reasonable ground. He says the government lost a real opportunity by moving to ban faith-based arbitration.

"Boyd detailed a number of provisions that would provide safeguards and checks to ensure transparency, accountability, respectability, and justice," he says.

"I'm not saying that the system would have been perfect, but would it be better than having these back-alley mediations that are going to continue to go on today? Sure, I think it would have been better. We'll still have the back-alley mediations by patriarchal imams and bad-faith husbands and women are just as vulnerable today as they were before Boyd's report came out.

"There's no pro-active change here."

Mark Freiman, honourary legal counsel for the Canadian Jewish Congress, Ontario region, and a partner at McCarthy Tétrault LLP, agrees.

"No one can stop people from asking anyone to resolve their disputes. People will go to their mothers or grandmothers or people that they respect or people in their faith-based community to resolve their issues," he says.

"What's really unfortunate about this is it removes, I think, the opportunity to supervise and to oversee this sort of thing. I'm not sure what it is exactly that the government is responding to, what issue it's trying to solve, and how the proposed solution of not allowing faith-based arbitration in certain areas responds to those questions," Freiman says.

Pam Cross, legal director of Metropolitan Action Committee on Violence Against Women and Children and co-chair of the No Religious Arbitration Coalition, says there will always be people who will operate outside a regulated arbitration system. However, she says allowing faith-based arbitration in Ontario is not the solution.

"That is a concern and that would have happened no matter what the government did, because had the government decided to leave the Arbitration Act as it's presently written, there's little doubt in my mind that the government would have implemented the safeguards, or least some of the safeguards, proposed by Boyd in her report.

"So there would have still been people who wanted to operate outside even those safeguards. I don't think the threat of so-to-speak back-alley arbitrations should be used to say, 'Well, we should have regulated them.' Whatever system of regulation you come up with, there are always people who are capable of finding a way to get around that," Cross says.

Freiman says the CJC was surprised by the premier's announcement because there had been no consultation or open dialogue with communities that will be affected by the change in legislation.

"This caught everyone flat-footed," he says. "We had no idea that this was a contemplated decision."

"I think it's one of the starting points from the CJC's perspective that something of this magnitude, good decision-making, good public policy regardless of the issue in question usually requires extensive consultation so you understand the implications of what you're doing.

"That's what government usually does and it leads to good decision-making and good policy formation. I'm not aware of any such consultation going on, certainly not with the CJC," Freiman says.

Freiman says he finds this puzzling because the government commissioned Boyd to prepare the report, but didn't respond or comment on the findings.

"We've never heard the government's response to it, what it found useful and not useful and why it's simply ignoring it now," he says. "If Boyd's solutions aren't adequate it would be useful to know why they're not adequate, what it is the government is trying to achieve that wouldn't be achieved by Boyd's report.

"Frankly, whatever issue the government has, it would have been useful to allow wide consultation."

While it is not clear what the exact wording of the amendments will be, Greg Crone, spokesman for Bryant, says the AG is "busy drafting the legislation and it will be presented in the legislature early in the session this fall.

"We're just working out the details now, which will be presented in the draft bill."

Freiman says it's hard for the CJC to plan its next move when so little is known about what will be changed.

"It's very hard to make plans in a vacuum," he says. "We're hopeful that when the dust settles a little bit, the government will think this through and will come back and at least open a dialogue and consultation and make clear what its issue is and what it wants to solve and allow for some opportunity for people to enter into discussions with the government."

Frank Dimant, executive vice president of B'nai Brith Canada, announced last week that the Jewish organization's board would be holding a special meeting to decide whether there's any proviso for a constitutional challenge.

Cross says while the premier's announcement is a victory for the coalition, much work needs to be done to ensure women have access to justice.

"I think one of the biggest jobs that we have — and by 'we' I mean those of us working with women but also the community, the government — a really big job that we have is to ensure that women have access to legal information so that they know what the law of Ontario, and what the law of Canada provides for them.

"So that when they are making decisions about how they want to handle their separation — do they want to go the route of private mediation or do they want to hire a lawyer and possibly end up in court — we'd like women to be making that decision based on access to full information, and that's a very important job that lies ahead of us right now," she says.

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