Canada: Sharia law out of question, Quebec insists

Toronto Star
'Door is closed and will remain closed,' justice minister says. The Province remains Canada's only officially secular jurisdiction.
Ontario may feel it should or must allow Muslim Canadians to use religious sharia law to settle family disputes, but the Quebec government says it's out of the question there.
"Certainly not in Quebec," Justice Minister Yvon Marcoux said earlier this month. "The door is closed and will remain closed."

Quebec uses civil law based on France's Napoleonic Code, rather than the Britain-derived common law employed by Ontario and other provinces. Since the 1960s, it has been Canada's sole, officially secular jurisdiction, excluding any and all religious considerations from civil affairs.

There is therefore no Arbitration Act, as in Ontario, which can be used by religious groups to resolve domestic conflicts.

A furor was set off here last year with the news that parts of Ontario's sizeable, but non-homogenous Muslim community intended to use the act to set up arbitration tribunals for disputes involving marriage, divorce and custody.

Muslim and non-Muslim critics alike protested that the 1,400-year-old body of Qur'an-inspired laws considers women inferior to men and would infringe their equality rights as guaranteed by the Charter of Rights and Freedoms.

However, a six-month study by former attorney-general Marion Boyd concluded in December that, with new safeguards in place, Muslim women would still be protected by Canadian law.

Her controversial recommendations still require final approval by the premier and attorney-general.

The ruling Liberal party in Quebec thinks it would be a mistake to sign off on it.

"(We) must say loud and clear that not only do we not want sharia in Quebec, we don't want it in Ontario and we don't want it in Canada," International Relations Minister Monique Gagnon-Tremblay told a conference last week.

The former immigration minister went even further in denouncing Ontario's attempt to accommodate both gender and religious rights in its increasingly pluralistic society.

Immigrants who want to come to Quebec, she said, "and who do not respect women's rights or who do not respect whatever rights may be in our Civil Code should stay in their country and not come to Quebec, because that is unacceptable.

"On the other hand, if people want to accept our way of doing things and our rights, they will be welcome and we will help them to integrate."

The government's opposition to sharia arbitration comes as no surprise to Salam Elmenyawi, president of the Muslim Council of Montreal.

"We didn't expect they'd entertain the idea because they have a taboo on all religions," he says.

"They are trying to impose secular extremism, but we're not France. We still have a Charter of Rights in this country that gives us the right to express our religion."

Which means that Quebec Muslims "don't have to be given the right to use sharia. We already have the right. We're talking about a complementary, not parallel, system of laws for those who want to live according to their faith.

It may be illegal for him to "arbitrate" in Quebec, says Elmenyawi, but as an imam, or prayer leader, he can and already does "mediate" between feuding couples who choose to use his services.

'There are boundaries to tolerance. But there is a lot to be said for letting people work it out themselves.' Joseph Heath, a political philosopher at the University of Toronto. He notes that the Muslim rate of divorce is only 3 per cent, compared with an overall Canadian rate of 50 per cent. But when it occurs, a religious divorce is important because otherwise a Muslim will feel "guilty," he says, and be unable to marry another religious person.

Elmenyawi, who is also the Muslim chaplin at McGill University, thinks Boyd did an "excellent job" on her report and blames the media for giving its critics a high profile.

He vehemently objects to the widely raised argument that Muslim wives, many new to the country, unable to speak the language and unaware of brand-new legal rights, will be forced into accepting an imam's sharia ruling.

"It is condescending to say they will be pressured," he says. "Women are not oppressed by Islam. It equates men and women."

Islam may, but sharia laws written over a period of 200 years after the death of Mohammed and subject to a variety of interpretations do not, say Muslim critics. They point out that one of the constants in sharia is that a woman's testimony in a dispute is worth one-half of a man's.

Farida Osmami of the Federation of Quebec Women is opposed to Ontario's move. Osmami, an Algerian-born Muslim, says many Muslim immigrant women will not be able to afford a divorce lawyer and will see no recourse but to accept an imam's ruling.

"Ontario is not facing up to its responsibility to provide justice for all," she says.

"This isn't just about religion, it's about sexism, even racism."

Osmami says Quebec's concept of multiculturalism is "accommodation raisonnable," or the "reasonable accommodation" of different cultures. And with different faiths, she says, "secularism protects the state from religious conflicts."

Possibly so, but secularism is not what Canada as a liberal nation subscribes to, preferring, like Britain and the U.S., the concept of "separation of church and state."

"In our society, we allow religious groups to discriminate," says Joseph Heath, a political philosopher at the University of Toronto, "because a liberal state must remain neutral."

He cites as examples the Catholic Church's ban on female clergy and various churches' refusal to marry same-sex partners: "Why do we permit this? Because religions are voluntary organizations."

Islam is no exception.

Heath says that unless there is an issue of safety, he cites the Sikh tradition of carrying a kirpan (a small religious knife) into classrooms or an overriding public interest in interceding, the state should stay out of religion.

Each requested exemption to the law (kirpans were considered weapons), should be assessed, he says.

"I don't subscribe to rolling over and playing dead. There are boundaries to tolerance. But there is a lot to be said for letting people work it out themselves."

Ontario has no choice but to allow Muslims to use the Arbitration Act because the province's small Hasidic Jewish community already uses it.

Unless, Heath adds, it decided to ban all religious involvement in civil matters, including family law: "That would be acceptable because it is consistent."

Otherwise, the sharia issue is an intramural debate between liberal and conservative Muslims, whether in Ontario, Quebec or the rest of the country.

"Let Muslims work it out."

By Lynda Hurst and originally published on 26 March 2005 in the Toronto Star