Arbitration Using Sharia Law in Canada: A Constitutional and Human Rights Perspective

Shirish P. Chotalia

Abstract


Recently, Canadian media reports warned that the Government of Ontario was considering the implementation of Sharia law as a judicial equivalent to Ontario law.1 Such reports were not accurate. Rather, the issue was whether arbitration by Islamic tribunals using Muslim law, which is often called Sharia law by non- Muslims, ought to be allowed under the auspices of general arbitration statutes.2 A cross-section of Muslim Canadians actively mobilized to oppose such a possibility through coalition- building and letter-writing campaigns.3 In June 2004, Marion Boyd was commissioned by the province to examine the issues surrounding the use of private arbitration to resolve family and inheritance cases, and the impact of the same on vulnerable people. The Boyd Report, tabled in December 2004, recommended that religious institutions be allowed to arbitrate such disputes on the basis of religious law, provided that a list of forty-six safeguards were adhered to.4

After the Boyd Report, some religious groups argued in favour of religious adjudications.5 Much public debate ensued, leading to a vociferous statement by Premier Dalton McGuinty, who vocally rejected religious adjudication.6 Further, the Government of Ontario outlined that it “will ensure that the law of the land in Ontario is not compromised, that there will be no binding family arbitration

in Ontario that uses a set of rules or laws that discriminate against women.”7 The province amended its Arbitration Act8 and Family Law Act9 to provide that family arbitrations were conducted “in accordance with Ontario law or the law of another Canadian jurisdiction.”


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