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Were Muslim Barbarians Really Knocking On the Gates of Ontario?

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Natasha Bakht examines how the religious arbitration dispute raised moral concerns about Muslim barbarians entering Ontario.

Image courtesy of interviewee. February 8, 2024

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In 2005, Muslim lawyer SE Ali proposed creating an arbitration tribunal in Ontario for Muslims to resolve family law disputes according to Sharia law. This video video sparked significant controversy, despite the Ontario Arbitration Act allowing parties to choose any arbitrator or legal framework for dispute resolution, including religious ones. Many misconceptions arose, particularly the fear that this would lead to a parallel legal system for Muslims and undermine women's rights. Media narratives propagated stereotypes of Muslim oppression, framing the issue in terms of a moral panic regarding Islamic fundamentalism.

Critics, including feminists, expressed concern about the potential negative impacts of religious arbitration on vulnerable individuals, particularly women, noting shortcomings in the Arbitration Act that could lead to inequitable outcomes. Feminist activists pointed out that while consent is required for arbitration, the pressures and constraints on vulnerable individuals could compromise true consent.

The No Religious Arbitration Coalition formed in response, arguing against any form of religious arbitration, but this blanket prohibition overlooked the perspectives of Muslim women who may prefer faith-based solutions. In 2006, the Ontario government ultimately banned the use of Sharia arbitration, responding to fears about Islamic law undermining Canadian values. However, subsequent amendments aimed to regulate family law arbitration did not completely eliminate the potential for religious arbitration, as parties could still agree on settlement terms privately.

The amended legislation introduced safeguards including mandatory writing of agreements and independent legal advice, but feminists remained concerned about the potential for patriarchal biases in arbitration decisions. While the government sought to ensure fairness and gender equality, it also missed an opportunity to foster more regulated forms of religious arbitration that could align with Canadian values. Observers noted that genuine solutions would require keeping open the possibility of religious arbitration while ensuring compliance with Canadian laws, highlighting a need for flexibility and accountability in accommodating diverse religious practices.

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X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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In 2005, a Muslim lawyer from Toronto named

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SE Ali caused some controversy by announcing

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that he would create an arbitration tribunal that would

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allow Muslims who were separating

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to resolve their family law disputes According

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to Sharia law, this simple declaration

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probably shouldn't have caused an uproar

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because Ontario's then arbitration act

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already permitted parties to appoint an arbitrator

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to help them resolve a dispute,

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including a family law matter, using any rule of law

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of the party's choice,

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and indeed other religious communities had used.

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And were using this provision of the arbitration act

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for the same purpose.

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And just so people know, an arbitrator makes a decision like

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a judge would based on submissions by the parties

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and those submissions.

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And indeed, the whole process can be as formal

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or as informal as you like.

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So the Sharia debate, as it came to be known,

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played out many of the myths regarding Islam and Muslims.

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There was a prevalent misunderstanding that was repeated

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by both the media and opponents of religious arbitration

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that the government of Ontario had,

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surreptitiously colluded with a Muslim organization

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to create a parallel legal system for Muslims,

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thereby depriving women in particular

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of their legal rights under Ontario and Canadian law.

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And with this myth came the accompanying moral panic

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that Muslim women in Canada would be stoned to death

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and that Muslim men would simply pronounce the words the

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lock or divorce three times for a divorce to be finalized.

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In fact, both criminal law

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and divorce are federal matters,

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to which the Provincial Arbitration Act simply

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is not applicable.

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But we saw the familiar caricatures

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of the imperiled Muslim woman needing

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to be rescued from the dangerous Muslim men.

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And we saw this in the form of an onslaught

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of fear mongering, newspaper articles, op-eds

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and television commentaries that confirmed the threat

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of Islamic fundamentalism.

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So the media, the media really cautioned

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that Muslim barbarians were knocking

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on the gates of Ontario.

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Uh, representations of Islam as barbaric

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and outside of any understanding of Canada's values

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were certainly strengthened

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because many of those descriptions came

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From certain Muslims themselves.

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Uh, for many months the media pursued the notion

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that Sharia would change the legal landscape of Canada

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overlooking the fact that in fact,

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nothing had legally changed.

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Ontario's arbitration Act had since 1991, allowed parties

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to authorize a third person

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to resolve their civil disputes using the legal

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framework of their choice.

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So feminists, including Muslim feminists were concerned

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about the impact of religious family arbitration

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on vulnerable individuals, women in particular.

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And there was legitimate cause for concern

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because the arbitration act had primarily been created

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for commercial purposes,

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but it could technically be used in family law

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where history has shown many women

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to be vulnerable irrespective of their culture or religion.

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So Canadian feminists really brought

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to the forefront many important

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and complicated shortcomings of the arbitration act

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that had somehow flown under the radar since 1991.

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One important contribution was the idea

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that while parties must agree to arbitration,

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so it can't be imposed on an an individual,

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vulnerable people are constrained in

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the choices that they make.

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Um, because so much of women's time

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and energy goes into the preservation

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and maintenance of the private realm,

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family law raises really unique concerns

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as a key site of oppression for women.

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Social inequities can be reproduced in privately ordered

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agreements and remain hidden from the public eye.

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So in the specific context of faith-based arbitration,

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feminists were concerned

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that Ontario's arbitration Act did not require arbitrators

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to have any specialized legal training,

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yet their decisions could be filed with a court of law

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and have the force of law parties to arbitration could

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contract out of their rights to appeal,

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which would remove an important mechanism

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of judicial oversight.

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And also the decision to arbitrate did not need

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to be made contemporaneously with the breakdown

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of the relationship.

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So you could have an arbitration agreement

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that's made in a marriage contract many years

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before the actual decision to arbitrate is embarked upon.

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And, and that really makes true consent illusory

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because people might change their minds.

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And perhaps most worrying was

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that the arbitration act permitted parties

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To resolve their family law disputes using

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any rule of law.

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So essentially that permitted any standard

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to be used in resolving a family law matter,

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even a very conservative or extremely right wing standard.

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And this is despite the very significant gains

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that have been made

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for women in Canadian family jurisprudence over

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the past 30 years.

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So I think feminists rightly speculated

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that the gender-based consequences of family arbitration

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with few limits, few safeguards

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would likely have a negative impact,

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and that impact would have intersecting class disability,

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cultural and religious implications.

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Where I'm of the view that feminist mobilization went astray

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was in the lobbying efforts to prohibit

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all religious arbitration.

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And I believe this all

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or nothing approach really fails to take seriously the views

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of Muslim women who may want to lead a faith-based life.

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Um, it assumes that the impact of religion,

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particularly Islam, can only be negative in a woman's life.

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But we know that fiercely secular states

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and theocratic states have been known

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to be equally oppressive to women

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and indeed religious freedom.

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So a blanket prohibition on religious arbitration

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precludes any of the progressive possibilities

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that it could entail for some women.

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Undermining the work of many feminist religious scholars

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who have argued that religion can

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and indeed does support women's rights.

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So the No Religious Arbitration Coalition was formed.

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It comprised of over 100 organizations

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and individuals, including feminists, including Muslims,

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and this organization or this coalition

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actively opposed the use

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of religious laws in family arbitration.

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And the coalition was extremely effective

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and it succeeded in convincing the government of the dangers

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of religious arbitration.

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And this was despite a report that had been commissioned

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by the Attorney General of of Ontario

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and the minister responsible for women's issues

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who actually recommended the continued use

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of religious arbitration, but with certain safeguards.

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Um, the government was persuaded

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however, that allowing Sharia to get a foothold in Canada

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would seriously jeopardize Canadian values.

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And this was no doubt fueled

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by the surrounding hysteria that had been

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Generated in the name of Islam and Islamic fundamentalism.

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Opponents of religious arbitration relied on this slogan

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that there should only be one law for all Canadians,

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but it's a little disingenuous to speak of one law for all

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in the context of family law.

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When Ontario permits parties to opt out

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of the default statutory regime, such as, for example,

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the equal division of property parties,

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in a family law context can through mediation,

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negotiation, or arbitration based on the right

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to contract freely agree to almost any resolution

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of their marital affairs.

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Uh, so it's just not accurate to speak of one family law

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for all Canadians when most family law jurisdictions in

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Canada promote dispute resolution mechanisms

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that permit parties to take personal responsibility

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for their financial wellbeing upon the dissolution

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of their relationships.

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Um, actually the current court infrastructure

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really couldn't handle the volume of family law cases

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if dispute resolution processes were not available

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and not encouraged.

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So given that ordinary Canadians can opt out of

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democratically formulated family law measures,

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it seems a little strange

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that religious Canadians would be prevented from similarly

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taking ownership over their decisions.

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Dispute resolution processes

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offer people a voluntary alternative

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to the increasingly lengthy

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and expensive cost

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of litigation Under the traditional court system.

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Generally, people's decisions

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to settle their family law affairs are left unreviewed

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by courts unless a person

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to the contract moves to set it aside.

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Uh, and the one area of exception here is matters involving

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children's care, including child support,

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where the courts will invoke their

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parents' patronage jurisdiction to approve agreements

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that are in the best interests of children.

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So the then premier of Ontario, Dalton McGinty announced on

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September 11th, 2005 that he

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and I quote would not let his province become the first

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Western government to allow the use of Islamic law

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to settle family disputes.

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And that Sharia arbitration

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and family law of matters would be banned from the province.

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So the date of the announcement combined

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with this excessive emphasis on Islam

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and Muslims, was really not lost on most Muslims.

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Uh, Ontario's Family Statute Law Amendment Act

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took into account feminist criticism

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that the arbitration act had a gendered impact

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that threatened women's equality.

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So the new provisions require the regulation

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of family law arbitrators.

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They require

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that family law arbitration agreements be in writing,

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and that each party receive independent legal advice.

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They prohibit advance agreements

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to arbitrate family law matters,

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and they also prohibit,

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one's ability to, opt out of the right

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to appeal to a court of law.

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Um, perhaps the most far reaching amendment is

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that family law arbitration agreements

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no longer permit a choice of law provision.

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So under the New Amendments, any family law arbitrations

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would be conducted exclusively in accordance with the law

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of Ontario or of another Canadian jurisdiction.

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So despite the legislation, this package

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of legislative amendments being publicized as prohibiting

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religious arbitration, in my view,

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it doesn't forbid religious arbitration.

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And the reason for that is first, people can always consent

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to settle their differences on any basis that they please.

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So long as both parties consent, the new amendments mean

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that only arbitral decisions using the family law

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of a Canadian jurisdiction will have the power

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of the state behind them.

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So Muslim women can still utilize religious arbitration

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that's not gonna be binding in law.

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And the feminist concern regarding women's vulnerability

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to the conscious or unconscious patriarchal practices

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or biases of arbitrators remains.

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Some commentators noted that, we lost an opportunity

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to prevent, back alley arbitrations

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through government regulation

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that really could have ensured a certain degree

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of transparency, accountability,

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and competence in adjudication.

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A second way in which the amendments do not actually

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ban religious arbitration is

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that religious arbitrators can simply conform

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to the regulations regarding training and record keeping,

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and then perform arbitrations that are consistent

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with Canadian family law and such an outcome.

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Really, I think it meets the concerns for gender equality

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that have been raised in this debate as well

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as the interests of religious people.

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So religious laws and principles are of course not static.

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They are mutable that is capable of modification

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with time, context and interpretation.

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The challenge for religious groups is to ensure

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that their practices are consistent

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with Canadian family law statutes and jurisprudence.

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But given the flexibility of Ontario's family law regime

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and the opinion of many religious scholars that Islam,

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for example, is perfectly compatible

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with human rights norms, this is not a challenge

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that I think should be difficult to meet.

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So legislators may have unwittingly found a viable

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solution to this divisive issue,

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but the sigh of relief that might have been emitted

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by many Ontarians is perhaps the result of a false labeling

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of what the amendments actually do.

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I hope that we can learn from this debate

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that the Association of religion

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with unavoidably sinister means does nothing

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to really further the cause of women's equality.

00:00 - In 2005, a Muslim lawyer from Toronto named SE Ali caused some controversy by announcing that he would create an arbitration tribunal that would allow Muslims who were separating to resolve their family law disputes According to Sharia law, this simple declaration

00:24 - probably shouldn't have caused an uproar because Ontario's then arbitration act already permitted parties to appoint an arbitrator to help them resolve a dispute, including a family law matter, using any rule of law of the party's choice, and indeed other religious communities had used. And were using this provision of the arbitration act for the same purpose. And just so people know, an arbitrator makes a decision like

00:55 - a judge would based on submissions by the parties and those submissions. And indeed, the whole process can be as formal or as informal as you like. So the Sharia debate, as it came to be known, played out many of the myths regarding Islam and Muslims. There was a prevalent misunderstanding that was repeated by both the media and opponents of religious arbitration that the government of Ontario had, surreptitiously colluded with a Muslim organization

01:30 - to create a parallel legal system for Muslims, thereby depriving women in particular of their legal rights under Ontario and Canadian law. And with this myth came the accompanying moral panic that Muslim women in Canada would be stoned to death and that Muslim men would simply pronounce the words the lock or divorce three times for a divorce to be finalized. In fact, both criminal law and divorce are federal matters, to which the Provincial Arbitration Act simply

02:10 - is not applicable. But we saw the familiar caricatures of the imperiled Muslim woman needing to be rescued from the dangerous Muslim men. And we saw this in the form of an onslaught of fear mongering, newspaper articles, op-eds and television commentaries that confirmed the threat of Islamic fundamentalism. So the media, the media really cautioned that Muslim barbarians were knocking

02:43 - on the gates of Ontario. representations of Islam as barbaric and outside of any understanding of Canada's values were certainly strengthened because many of those descriptions came From certain Muslims themselves. for many months the media pursued the notion that Sharia would change the legal landscape of Canada overlooking the fact that in fact, nothing had legally changed.

03:15 - Ontario's arbitration Act had since 1991, allowed parties to authorize a third person to resolve their civil disputes using the legal framework of their choice. So feminists, including Muslim feminists were concerned about the impact of religious family arbitration on vulnerable individuals, women in particular. And there was legitimate cause for concern because the arbitration act had primarily been created for commercial purposes,

03:49 - but it could technically be used in family law where history has shown many women to be vulnerable irrespective of their culture or religion. So Canadian feminists really brought to the forefront many important and complicated shortcomings of the arbitration act that had somehow flown under the radar since 1991. One important contribution was the idea that while parties must agree to arbitration, so it can't be imposed on an an individual,

04:24 - vulnerable people are constrained in the choices that they make. because so much of women's time and energy goes into the preservation and maintenance of the private realm, family law raises really unique concerns as a key site of oppression for women. Social inequities can be reproduced in privately ordered agreements and remain hidden from the public eye. So in the specific context of faith-based arbitration,

05:00 - feminists were concerned that Ontario's arbitration Act did not require arbitrators to have any specialized legal training, yet their decisions could be filed with a court of law and have the force of law parties to arbitration could contract out of their rights to appeal, which would remove an important mechanism of judicial oversight. And also the decision to arbitrate did not need to be made contemporaneously with the breakdown

05:33 - of the relationship. So you could have an arbitration agreement that's made in a marriage contract many years before the actual decision to arbitrate is embarked upon. And, and that really makes true consent illusory because people might change their minds. And perhaps most worrying was that the arbitration act permitted parties To resolve their family law disputes using any rule of law.

06:02 - So essentially that permitted any standard to be used in resolving a family law matter, even a very conservative or extremely right wing standard. And this is despite the very significant gains that have been made for women in Canadian family jurisprudence over the past 30 years. So I think feminists rightly speculated that the gender-based consequences of family arbitration with few limits, few safeguards

06:35 - would likely have a negative impact, and that impact would have intersecting class disability, cultural and religious implications. Where I'm of the view that feminist mobilization went astray was in the lobbying efforts to prohibit all religious arbitration. And I believe this all or nothing approach really fails to take seriously the views of Muslim women who may want to lead a faith-based life. it assumes that the impact of religion,

07:13 - particularly Islam, can only be negative in a woman's life. But we know that fiercely secular states and theocratic states have been known to be equally oppressive to women and indeed religious freedom. So a blanket prohibition on religious arbitration precludes any of the progressive possibilities that it could entail for some women. Undermining the work of many feminist religious scholars who have argued that religion can

07:47 - and indeed does support women's rights. So the No Religious Arbitration Coalition was formed. It comprised of over 100 organizations and individuals, including feminists, including Muslims, and this organization or this coalition actively opposed the use of religious laws in family arbitration. And the coalition was extremely effective and it succeeded in convincing the government of the dangers of religious arbitration.

08:21 - And this was despite a report that had been commissioned by the Attorney General of of Ontario and the minister responsible for women's issues who actually recommended the continued use of religious arbitration, but with certain safeguards. the government was persuaded however, that allowing Sharia to get a foothold in Canada would seriously jeopardize Canadian values. And this was no doubt fueled by the surrounding hysteria that had been

08:54 - Generated in the name of Islam and Islamic fundamentalism. Opponents of religious arbitration relied on this slogan that there should only be one law for all Canadians, but it's a little disingenuous to speak of one law for all in the context of family law. When Ontario permits parties to opt out of the default statutory regime, such as, for example, the equal division of property parties, in a family law context can through mediation, negotiation, or arbitration based on the right

09:36 - to contract freely agree to almost any resolution of their marital affairs. so it's just not accurate to speak of one family law for all Canadians when most family law jurisdictions in Canada promote dispute resolution mechanisms that permit parties to take personal responsibility for their financial wellbeing upon the dissolution of their relationships. actually the current court infrastructure really couldn't handle the volume of family law cases

10:13 - if dispute resolution processes were not available and not encouraged. So given that ordinary Canadians can opt out of democratically formulated family law measures, it seems a little strange that religious Canadians would be prevented from similarly taking ownership over their decisions. Dispute resolution processes offer people a voluntary alternative to the increasingly lengthy

10:44 - and expensive cost of litigation Under the traditional court system. Generally, people's decisions to settle their family law affairs are left unreviewed by courts unless a person to the contract moves to set it aside. and the one area of exception here is matters involving children's care, including child support, where the courts will invoke their parents' patronage jurisdiction to approve agreements

11:14 - that are in the best interests of children. So the then premier of Ontario, Dalton McGinty announced on September 11th, 2005 that he and I quote would not let his province become the first Western government to allow the use of Islamic law to settle family disputes. And that Sharia arbitration and family law of matters would be banned from the province. So the date of the announcement combined with this excessive emphasis on Islam

11:45 - and Muslims, was really not lost on most Muslims. Ontario's Family Statute Law Amendment Act took into account feminist criticism that the arbitration act had a gendered impact that threatened women's equality. So the new provisions require the regulation of family law arbitrators. They require that family law arbitration agreements be in writing, and that each party receive independent legal advice.

12:19 - They prohibit advance agreements to arbitrate family law matters, and they also prohibit, one's ability to, opt out of the right to appeal to a court of law. perhaps the most far reaching amendment is that family law arbitration agreements no longer permit a choice of law provision. So under the New Amendments, any family law arbitrations would be conducted exclusively in accordance with the law

12:54 - of Ontario or of another Canadian jurisdiction. So despite the legislation, this package of legislative amendments being publicized as prohibiting religious arbitration, in my view, it doesn't forbid religious arbitration. And the reason for that is first, people can always consent to settle their differences on any basis that they please. So long as both parties consent, the new amendments mean that only arbitral decisions using the family law of a Canadian jurisdiction will have the power

13:34 - of the state behind them. So Muslim women can still utilize religious arbitration that's not gonna be binding in law. And the feminist concern regarding women's vulnerability to the conscious or unconscious patriarchal practices or biases of arbitrators remains. Some commentators noted that, we lost an opportunity to prevent, back alley arbitrations through government regulation that really could have ensured a certain degree

14:08 - of transparency, accountability, and competence in adjudication. A second way in which the amendments do not actually ban religious arbitration is that religious arbitrators can simply conform to the regulations regarding training and record keeping, and then perform arbitrations that are consistent with Canadian family law and such an outcome. Really, I think it meets the concerns for gender equality that have been raised in this debate as well

14:42 - as the interests of religious people. So religious laws and principles are of course not static. They are mutable that is capable of modification with time, context and interpretation. The challenge for religious groups is to ensure that their practices are consistent with Canadian family law statutes and jurisprudence. But given the flexibility of Ontario's family law regime and the opinion of many religious scholars that Islam, for example, is perfectly compatible

15:22 - with human rights norms, this is not a challenge that I think should be difficult to meet. So legislators may have unwittingly found a viable solution to this divisive issue, but the sigh of relief that might have been emitted by many Ontarians is perhaps the result of a false labeling of what the amendments actually do. I hope that we can learn from this debate that the Association of religion with unavoidably sinister means does nothing

15:57 - to really further the cause of women's equality.

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