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.
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
"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
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
Frank Dimant, executive vice president of B'nai
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
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,"