Media & Representation ANNA C. KORTEWEG The Sharia Debate in Ontario In late 2003, Syed Mumtaz Ali, a retired lawyer and scholar of Islamic jurispru- dence, announced in the Canadian media that the Islamic Institute of Civil Justice (IICJ) would start offering arbi- tration in family disputes in accordance with both Islamic legal principles and Ontario’s Arbitration Act, 1991. This act allowed a variety of private matters to be settled through legally binding ar- bitration, including arbitration based on religious principles. A vociferous debate ensued on the introduction of sharia law in Ontario in which the pre- sumed incompatibility of sharia-based family law and women’s individ- ual rights took centre stage. This debate reached its conclusion in Sep- tember 2005 when Ontario Premier Dalton McGuinty announced that he would end all religious arbitration. In February 2006, the Ontario legislature passed amendments to the 1991 Act that allowed family arbitration only if it was based on Ontario or Canadian law, excluding any form of religious arbitration, whether based on Christian, Jewish, Muslim, or other religious principles. The account that follows is based on my reading of the Canadian newspapers, the government commissioned report on the desirability of allowing sharia-based arbitration tribunals, and the websites of vari- ous organizations arguing for and against the establishment of sharia- based arbitration tribunals. The development of the sharia debate Established in part to diminish a backlog in the courts, the Ontario Arbitration Act of 1991 allowed for religious, as well as non-religious, arbitration in private matters, including family and business matters. Under the 1991 Act, two parties can appoint an arbitrator to make a legally binding decision. Un- like in mediation where two parties collabora- tively reach a resolution aided by a mediator, an arbitrator acts much like a judge. Under the 1991 Act, both parties have to agree to engage in ar- bitration and if one of the parties feels that the decision reached is in conflict with existing Ca- nadian law, they can appeal the arbitrator’s deci- sion in court. However, the 1991 Act contained no institutional oversight mechanism to ensure that decisions were in compliance with Canadian law. Feminist scholars and legal practitioners have warned that arbitration, like mediation, runs the risk of reproducing gendered power inequalities in intimate relationships, leaving women to agree to decisions that might not be in their best inter- est. 1 Nonetheless, arbitration under the 1991 Ar- bitration Act has continued to increase in popu- larity in Ontario, quite likely because it offers a faster and cheaper route to resolving issues surrounding family dissolution and inheritance than the court system. After 1991, Jewish and Christian groups, as well as Ismaili Muslims, set up arbitration boards that arbitrated in accordance with their religious principles. These arbitrations never received public scrutiny and little is known about them. The IICJ’s proposal, then, built on over ten years of, seemingly unproblematic, religious arbitration in Ontario. Nonethe- less, the ensuing public debate often misconstrued the Muslim Arbitra- tion Board as a proposal to extend the law to include arbitration based on Islamic religious principles. As a matter of fact, under the Arbitra- tion Act, such arbitration was already possible. As with all other arbitration, decisions would be legally binding as long as they did not violate existing Canadian law, though, again, there were at this point in time no oversight provisions to ensure that this was the case in each individual decision made. Furthermore, even though the debate centred on the proposal of the IICJ to start a sharia-based tribunal, there was no reason to assume that Ontario would only have one Muslim arbitra- tion board. Under the 1991 Arbitra- tion Act, multiple sharia-based tribunals could have been established, something that might well have happened given the tremendous di- versity in Muslim communities in Ontario. The debate on the idea of sharia-based arbitration clustered around a number of events. First, there was the announcement, made in De- cember 2003, by the IICJ. That announcement resulted in some news reporting and editorials on the application of Islamic principles in fam- ily arbitration. A second period of more intensive debate occurred in June 2004 when Ontario Premier Dalton McGuinty asked his Attorney General, Michael Bryant, and Minister Responsible for Women’s Issues, Sandra Pupatello, to look at the issue of religious arbitration based on sharia more deeply. By the end of the month, Bryant and Pupatello asked former Attorney General Marion Boyd to conduct a study. Marion Boyd was a minister in the left-wing National Democratic Party govern- ment in Ontario that passed the 1991 Arbitration Act. She had strong credentials as a feminist and was thought to be knowledgeable about both issues related to arbitration and to gender equality, particularly those pertaining to the family. The third wave of the debate occurred when Boyd issued her report in late December 2004. She argued that religious arbitration based on what she called “Islamic legal principles” was allowed under the exist- ing Arbitration Act. Furthermore, Boyd proposed that religious arbitra- tion should continue arguing, “secular state laws do not treat everyone equally because people’s individual backgrounds lead to differences in the impact of these laws.” 2 At the same time, she was very concerned that individual rights, including women’s rights, be safeguarded. To en- sure this, she proposed a number of amendments to the Act, including institutionalized oversight measures and education measures on the principles of both religious arbitration and Canadian legal principles. The debate peaked in September 2005. On September 8, a number of women’s groups staged international protests against the adoption of sharia law in Ontario. On September 11, 2005, Premier McGuinty announced that he would put forth an amendment to the Arbitration Act to ensure that there would be “one law for all Ontarians” effectively ending faith-based arbitration. This was followed by a stream of op-eds, news analyses and opinion pieces, arguing, on the one hand, that this was a victory for women’s rights and on the other, that McGuinty was leaving religious Muslim women who would now turn (or be turned) to informal sharia based-arbitration without any protection by the state. Since the adoption of the amendments to the Arbitration Act on February 14, 2006, 3 there has been little public discussion of the issue, though some groups, both Jewish and Muslim, have vowed to struggle for the reinstatement of religious arbitration. Multiculturalism, group rights, and women’s rights The sharia debate was at its core a debate on group rights. In his work on multiculturalism, the Canadian political theorist Will Kymlicka argues that ethnic groups deserve protections of their culture insofar From 2003 through 2006 a debate developed on the introduction of “sharia law” or sharia arbitration in Ontario, Canada. The author shows how an issue that was in its core about legal principles and practices turned into a debate about women’s inequality, and by extension Canadian national identity and culture. The ensuing public lambasting of Islam reinforced the notion that Islam and gender inequality are inherently incompatible. Important questions regarding faith-based arbitration were thus ignored, and with it the possibility to improve gender equality. As a matter of fact, under the Arbitration Act, [sharia-based] arbitration was already possible. 50 ISIM REVIEW 18 / AUTUMN 2006