Sharia Courts in Ontario

Despite the rhetoric I'm sure we will be hearing over the next while, McGuinty's decision to outlaw religious arbitration is actually a victory for freedom of religion in this province. Or at least it will be if done properly.

The Arbitration Act itself currently does not allow or disallow religious arbitration. It only defines a set of rules that arbitrations have to work under. One of those is that their decisions must be compatible with Canadian and Ontario law.

Unfortunately in family law there are fundamental differences between Ontario's and Sharia's precepts. This is seen, for example, in the treatment of children in a divorce. Ontario family law is clear that the best interests of the children must be considered. Under Sharia the children go with one parent or the other depending on their age and sex. And both our Charter of Rights and Freedoms and our Human Rights Code specify non-discrimination based on sex. Yet Sharia has many examples of gender-based treatment.

If religious tribunals are allowed, then one's freedom of religion, as expressed in the decision to use religious arbitration, would conflict with Ontario law. The courts would then have to decide whether Ontario or religious law triumphs. Either the religious arbitrations would be overruled or our Charter of Rights and Freedoms and our Human Rights Code would be declared invalid. However the Charter and Code are the basis for freedom of religion, so even in winning, freedom of religion loses!

The price to pay for religious tribunals is simply too high.

All of this of course depends on McGuinty getting it right. Banning religious arbitrations directly would in fact discriminate against those who have religious beliefs, while allowing non-religious people free access to their secular arbitrations. The correct route, the one McGuinty must follow, is to remove family law from the Arbitration Act. This bans religious arbitration, as he announced he will do, without discriminating against anyone's religious beliefs.

Gary Dale