Sharia Law in Canada?

[Britney Spears]

Arguing on the internet is like running in the Special Olympics.
Even if you win, you're still retarded. Wink

nuff said,out to you.

Sure, take a break, do some reading. Come back when you've got something to contribute and/or actually understand the issue and we can carry on, no hard feelings, Okay?

 

[Tornado]

A great deal of information to digest in this thread.  Forgive my only skimming some of the longer posts.

It seems to me that the courts have left a legal loophole by indicating that any decision must be "acceptable".  The real issue is belief systems.  What anyone believes tends to become hardwired, given enough time.  As was mentioned earlier, social and cultural pressure is very real, regardless of the laws which govern you.  I discussed this sort of concept with a cop in Edmonton once.  I was trying to wrap my mind around recruiting quotas for minorties.  He introduced a rather enlightening scenario of which he had been a part.

He was answering a domestic disturbance call to an area in Mill Woods.  This particular suburb in Edmonton has a large ethnic population and the section he was headed to was where many Sikhs were residing.  Being unfamiliar with the culture, he made a quick call to the local detachment who then dispatched a Sikh cop to his location.  Now, I don't know what the disturbance was about however, the the Sikh officer was able to quell the situation in a few minutes by bridging the cultural chasm.  The officer was able to explain Canadian law and standards in a way which was easily understood by the parties involved.

I can't presume to know much about "Sharia Law" in the Muslim culture however it sounds like; A) a forum for dealing with civil disputes in Canada in a culture unfamiliar with our own or, B) a quick and easy way to keep more disputes from even making to the courts in order to save a buck for the Ontario Govt.

Being a pessimist, I suspect the latter was how the idea was sold.

Just my 5 cents.  <shrug>

Take Care 

 

[TCBF]

"Normandy is called such because a bunch of Norsemen settled there, and imposed their culture on the Gaullic people's already in place."

- Too bad that wore off.

Tom

 

[Sapper Bloggins]

Sure, take a break, do some reading. Come back when you've got something to contribute and/or actually understand the issue and we can carry on, no hard feelings, Okay?

lol :

'I scorn you, scurvy companion.
What, you poor, base, rascally, cheating, lack-linen mate! Away, you moldy rogue, away!'

-William Shakespeare, Henry IV, part 2

 

[Zio]

Whiskey601, there were a great many recommendations submitted during the development of Boyd's report.  In regards to arbitration The Women's Legal Education and Action Fund (LEAF) requested eight safeguards which you might find interesting.

The eight safeguards recommended by LEAF consist of: (1) the Arbitration Act must be amended to provide that family arbitrations apply to Ontario's family law regime (other principles, such as religious precepts, may also be applied, but only to the extent that they do not conflict with Ontario family law); (2) consent to arbitration must be made contemporaneously with the decision to arbitrate; (3) independent legal advice must be sought prior to the signing of an arbitration agreement; (4) legal aid or some other public funding must be available to all parties in order to obtain independent legal advice and to retain lawyers for arbitration (funding must also be provided to fund family law arbitrators, not religious arbitrators); (5) family arbitrations must only be conducted by persons who are lawyers and have training and experience with the Ontario family law regime and there must be a complaints mechanism through which the qualifications of arbitrators may be reviewed; (6) parties must not be able to contract out of their appeal rights; (7) arbitral awards must contain a statement of the issues in dispute, a concise description of the evidence tendered and a determination by the arbitrator, with reasons must be filed anonymously in a central registry; and 8 a legislative review must be mandated on a periodic basis examining the impact of religious arbitration on women, followed by a report on the extent and nature of family law disputes being arbitrated, on compliance with Ontario family law, and on possible concerns for vulnerable women.

Generally their take on this was such that in their opinion "Ontario's family law regime is flexible enough to allow religious groups to still create imaginative family law resolutions within religious law boundaries while retaining significant judicial oversight. "

There are various other forms of "safeguards" proposed by other groups these however are in my opinion the most practical, and contrary to Boyd I believe that Legally "time consuming processes" are not to be avoided rather encouraged as a check.

 

[TCBF]

Thank you for that.  Those are good points.

Only time will tell if politics will once again triumph over democracy, human rights, and common sense.

Tom

 

[Britney Spears]

I suppose it's amusing to see all you supposed libertarians screaming for more bureacracy and goverment in the bedroom, when Boyd, an NDP member, is calling for less. 

 

[TCBF]

Ahh, you mis-interpret her vision.

She wants to provide a Liberal voting block the ability to apply the force of our institutions without recourse to our western civilization's  legal oversight and redress procedures.

Back door fascism, democratically funded.

Tom

 

[George Wallace]

I was going to monitor and stay out of this, some of these statements got to me.

The eight safeguards recommended by LEAF consist of:

(1) the Arbitration Act must be amended to provide that family arbitrations apply to Ontarioâ ™s family law regime (other principles, such as religious precepts, may also be applied, but only to the extent that they do not conflict with Ontario family law);

Then why waste anyoness time and efforts if Ontario Family Law is the be all end all?

(2) consent to arbitration must be made contemporaneously with the decision to arbitrate;

(3) independent legal advice must be sought prior to the signing of an arbitration agreement;

Again....If Independent legal advice must be sought, why even bother with this act?

(4) legal aid or some other public funding must be available to all parties in order to obtain independent legal advice and to retain lawyers for arbitration (funding must also be provided to fund family law arbitrators, not religious arbitrators);

And again; if this is stipulated, why even waste the time with any Act?

(5) family arbitrations must only be conducted by persons who are lawyers and have training and experience with the Ontario family law regime and there must be a complaints mechanism through which the qualifications of arbitrators may be reviewed;

This sort of goes against what they want, and again we have Laws and Acts in place to cover this already, why create new ones?

(6) parties must not be able to contract out of their appeal rights;

(7) arbitral awards must contain a statement of the issues in dispute, a concise description of the evidence tendered and a determination by the arbitrator, with reasons must be filed anonymously in a central registry; and

8 a legislative review must be mandated on a periodic basis examining the impact of religious arbitration on women, followed by a report on the extent and nature of family law disputes being arbitrated, on compliance with Ontario family law, and on possible concerns for vulnerable women.

All of these are stating that existing Ontario Laws and Acts have power over this Legislation.  If so, why waste our time by passing it?  Or is the real reason, as someone stated earlier, to allow the Islamic Laws to creep into our Legal and Legislative Systems and slowly take over in time due to the Liberal Left of today not having the foresight or moral fibre to stand by our existing System.

 

[Britney Spears]

Come on now, same question I asked Sapper Bloggins: How do you figure?  Hopefully you're a little more articulate than he was.

There are various other forms of "safeguards" proposed by other groups these however are in my opinion the most practical, and contrary to Boyd I believe that Legally "time consuming processes" are not to be avoided rather encouraged as a check.

I'm more partial to a proactive approach rather than a reactive set of legal safeguards. Instead of making arbitration more complex and time consuming, which is contrary to its intended role of a FAST AND CHEAP form of resolution, how about taking that money and using it to subsidize progressive women's organizations, perhaps Muslim ones, and ensuring that Muslim women are informed about the existing legal remedies. Perhaps this could be done at the point of entry for immigrants. Make every one of them watch a video or some such. I think this would also strengthen the impetuos for Muslim communities to become more progressive from within, and eventually even export our values back to their home countries.

I mean, if we HAVE to do something about this "Muslim Menace".

 

[TCBF]

Another sentence like your last, and I may have to reconsider my vote.

Tom

 

[Zio]

Britney, from what I can tell you make much the same argument as Boyd.  Namely that arbitration is a private matter with authority of the arbitrator deriving solely from the agreement of the parties involved.  And as a such it is outside of (or at least should not be in) the jurisdiction of the government whether this is provincial regulation or even as Boyd states Charter scrutiny.  While I find myself in the awkward position of defending government intrusion into family affairs I believe certain fundamentals of government have to apply:

The state has to protect the rights of traditionally discriminated groups (in this case women/minority women), in so far as no legislation should be tabled which relieves the state of this duty.  Moving family law into a strictly private sphere does this; if this legislation would pass as is many conventional redresses, which you yourself have advocated in previous posts, would be unavailable.

I do not believe that other programs would accomplish what the Ontario government was intending.  Providing alternate forms of dispute resolution does not have to be antagonistic to our current legal system.

 

[Britney Spears]

Zio:

Sorry, I was only putting out what Boyd's arguments were (hence the similarity). I don't neccesarily agree with her. In particular, the point about the charter having no juristiction in private arbitration I'm not so hot about, so actually I kind of agree with you.

The state has to protect the rights of traditionally discriminated groups (in this case women/minority women), in so far as no legislation should be tabled which relieves the state of this duty.  Moving family law into a strictly private sphere does this; if this legislation would pass as is many conventional redresses, which you yourself have advocated in previous posts, would be unavailable.

By redresses do you mean appeals to the Charter? If so, then I agree, and it would be the reason why I am opposed to this particular point. But on the other hand, one can make an equally compelling argument to the contrary. For example, is there any actual evidence or prescedence to support this conjecture (that private arbitration must neccesarily result in abuses)?  In LEAF's list of recommendations, I presume Number 1 is basically arguing this point? I also note that in LEAF's list, no mention is specifically made regarding Sharia Law or Islam. Are they then saying that these limitations will apply to ALL faith based arbitrations?

As I mentioned in my previous post, I would not be opposed to this (application of charter to arbitration) IN PRINCIPLE, but where do you draw the line? Would this not leave the door open for all kinds of frivolous "sexual harrasment" style appeals? Even if the current proposed legislation more specificly referred to Ontario Family Law and not the charter,, there would be a precedent set for goverment intervention in non-family law cases.

Also, do you know what whiskey meant when he said that Boyd was attempting to give arbitrations the power of law? I asked him but he hasn't been around for quite a while.....



Tom, George:

I don't think we are on the same net here.  Have you guys read Boyd's report? I quoted large sections of it in a few previous posts.


For anyone who hasn't,  it is available <a href=http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/fullreport.pdf>here</a>.  Please at least go over the introduction before commenting. FWIW, I'm not sure I agree with Boyd's analysis and verdict, and this is what I am discussing with Zio and Whiskey, but some of the posts here really belong on militaryphotos.net in terms of reading level. 

 

[Zio]

Re: Arbitration and the Law- Arbitration is essentially a private affair, as I alluded to earlier, the parties give authority to the arbitrator.  It is the parties' agreement to be bound by the arbitrator's decisions, which empowers the Arbitration act, not the other way around.  Thus no.1 of LEAF's safeguards wants an amendment allowing arbitration into Ontario family law. (Giving it the power of law, able to be applied by the government) I believe that this is what Whiskey was referring to when he spoke of proposed changes. 

In regards to whether or not private arbitration will result in abuse of minority interests, in this case women/minority women we must remember that what protects them now is the fact that they have official courts which are bound by and act in accordance to the laws of our country, to address perceived or actual wrongs.  Again removing these safeguards may lead to abuse, particularly in a society where there still remains systemic discrimination against women in the workplace let alone within the confines of a Islamic culture and (proposed) arbitration.

 

[Britney Spears]

Re: Arbitration and the Law- Arbitration is essentially a private affair, as I alluded to earlier, the parties give authority to the arbitrator.  It is the parties' agreement to be bound by the arbitrator's decisions, which empowers the Arbitration act, not the other way around.  Thus no.1 of LEAF's safeguards wants an amendment allowing arbitration into Ontario family law. (Giving it the power of law, able to be applied by the government) I believe that this is what Whiskey was referring to when he spoke of proposed changes.

Okay, the report says:

LEAF's objection is not the use of religious precepts to resolve disputes, per se, but to the fact that the current Arbitration Act effectively gives these principles-which are not reviewable under the Charter-the force of law. The state is required to protect and promote women's equality, and it has done so through the Ontario Family Law regime. Women may choose to opt out of this protection, but the state abrogates its Charter responsibility if it agrees to enforce such contracts. It is trite law that parties are not entitled to contract out of human rights legislation, and the state likewise cannot say to women, "we will protect you, but only if you want to be protected". This is directly contrary to the basic principle that the Charter is the supreme law of the land and must be upheld by the government in all instances, regardless of the desires of a specific individual or even a democratically elected legislature. LEAF submits that the Arbitration Act cannot be used as a backdoor way of giving Charter-proof principles legal effect. Only the Ontario Family Law regime can be reviewed for compliance with the Charter, so only this regime can be given effect by the state.297

Am I getting confused by the semantics?

In any case, LEAF's proposal makes sense now. I think I would be for moving divorce and inheritance arbitration to The Family Law Act.

 

[Zio]

Not really, basically without an amendment to the proposed changes any cases before this process would be arbitration as it is currently standing.  That means that if two people agree to use this new system the results are enforced by the Arbitration act and are not reviewable by the courts. Much the same as what occurs between you and your employer when going to arbitration. Because they both agreed to submit to the process and by extension the judgment in what the government deems a private matter, the Arbitration Act would then be in the position of enforcing a religious decision.  Thus effectively giving these ruling the "force of law".  LEAF is arguing for the inclusion of this into Ontario Family Law so that it would then be (like all other laws) subject to review.

 

[Britney Spears]

yeah, that's what I thought. It was this that was throwing me off:

What the government and Boyd are attempting to do is give Sharia the force of law in Canada, and that is a very dangerous precedent which could result in courts attempting interpret Sharia law, and perhaps eventually applying certain aspects of Sharia into other areas of family law by stealth or inadvertence.

 

[TCBF]

I had read an interview with Humera Abrahim, and it left me with the impression that if Muslim women in Canada - the canaries in the mineshaft of this initiative - found cause for concern, then it was probably understated.  

In Canada, people act and react in their daily lives not so much in accordance in the knowledge of the law, but in their belief (or disbelief) in the law.  Ignorance abounds (our national belief in our inability to use lethal force in an act of self defence, for example), and greater ignorance will result in poor, immigrant women living in a tribe geographically removed but culturally constant with their homelands.  Often with little or no English, their lives in our urban 'Bantustans" will not be protected by the goodwill and noble gestures of Marian Boyd or her successors, if their community guides their actions by IT's opinion of the law.

Other than an envisioned end state of Sharia law, I have neither heard nor read any benefit to accrue to Canadian Muslims with this initiative.

Is our democracy that flawed?  If so, will Presbyterians like myself be allowed to use this new shiny tool for family justice?

Could American immigrants ask that the US Constitution be used under the arbitration act related to family law?

How would this impinge on commercial partnerships - say, a company owned by Muslims and seculars - when an issue under this initiative results in a new disposition of that property?

I am a progressive in the sense that I will steal anyone else's good ideas.  I am also in agreement with much of the family traditions regarding responsibility to one's kin that are prevalent in Islam. My right flank neighbours are Islamic, and we have had interesting discusions (though not yet on this).

Who knows?  Tomorrow, he may convince me otherwise, but for today, I vote No.

Britney, thanks for the handy link.  You give us no excuse to be completely intellectually lazy.  Pr_ck.   ;D

Tom

 

[Zio]

I enjoyed this conversation; I believe we are all in agreement that forming an opinion of these proposals is far more complex than at first glance.  I will leave you with a quote from Abul A'la Mawdudi speaking about the Shari`ah:

"The fundamental principle of the Law is that man has the right, and in some cases the bounden duty, to fulfill all his genuine needs and desires and make every conceivable effort to promote his interests and achieve success and happiness- but (and its an important but) he should do all this in such a way that not only are the interests of other people not jeopardized and no harm is caused to their strivings towards the fulfillment of their rights and duties, but there should be all possible social cohesion, mutual assistance and co operation among human beings in the achievement of their objectives"

Not always the bogeyman people make it out to be!

Good Night

 

[Britney Spears]

Tom:

Let's be clear on the chain of cause and effect here.

1) In 1991 The Arbitration Act is passed.

2) In 2003, Syed Mumtaz Ali and IICJ announces their intention to form a tribunal to regulate and oversee Muslim Arbitrators.

3) The day after that, lots of people whine.

4) The Ontario Gov't commisions the Boyd review, to quote the report again:

In June of 2004 the Ministers gave me a mandate to explore the use of private arbitration to resolve family and inheritance cases, and the impact that using arbitrations may have on vulnerable people. My mandate included extensive consultation with interested parties. In particular, my Review was to include an examination of the prevalence of the use of arbitration in family and inheritance disputes, the extent to which parties have resorted to the courts to enforce arbitration awards, and what differential impact, if any, arbitration may have on women, elderly persons, persons with disabilities, or other vulnerable groups. Finally, based on my consultations, I was asked to make recommendations for addressing some of the central concerns about arbitration of family law and inheritance matters in this province

5) Dec. 2004, the report which you've just read is out.

You will note that the LEAF proposals, which we have discussed at length in the last few posts, are included in the report, as I have quoted. However, Boyd's final recommendations start with:

1. Arbitration should continue to be an alternative dispute resolution option that is available in family and inheritance law cases, subject to the further recommendations of this Review.
2. The Arbitration Act should continue to allow disputes to be arbitrated using religious law, if the safeguards currently prescribed and recommended by this Review are observed.

So ACTUALLY, it is LEAF and the naysayers who are proposing "changes" and "new legislation". Boyd is saying that we should maintain the status quo from 1991. Mumtaz Ali and the IICJ, if they are truly committed to the enlightened and progressive interpretation of Shari'a, would not care either way.

And therein lies the issue.

You give us no excuse to be completely intellectually lazy.  Pr_ck.  Grin

Yeah, you see, I'd rather be right than popular. So I had to risk losing your vote to get to the bottom of this mess. Where do I stand now?