The Honourable Michael Bryant

Attorney General of Ontario

720 Bay Street, 11th Floor
Toronto, ON
M5G 2K1

 

June 17, 2005

 

Dear Attorney General Bryant,

 

Amnesty International is aware that you are presently considering your government’s position regarding the use of religious laws, pursuant to Ontario’s Arbitration Act, 1991, to resolve family and inheritance disputes.  We are concerned that the use of religious laws in this manner raises a very real risk that fundamental human rights, particularly the rights of women, will be violated.  We urge you to ensure that any policies you adopt, or law reform you pursue, makes the protection of basic human rights a priority.  Ontario’s approach to this issue must not only ensure the protection of the rights of women in Ontario; it must serve as a model that other governments should be pressed to follow.

 

Around the world, women are frequently subjected to serious discrimination with respect to family matters such as marriage, divorce, remarriage, custody of and access to children, division of marital property, and spousal support; and also matters related to inheritance.[1]  The results can be devastating: women killed and injured in so-called honour crimes, used as a commodity to resolve disputes, unable to escape from spousal violence, denied custody of their children, or forced to live in extreme poverty after divorce or the death of a spouse. In our work to ensure the protection women’s human rights, we have encountered far too many situations where the exercise of cultural, traditional and religious beliefs contributes to discrimination and violence against women.[2]

 

Governments are obliged to take active steps to protect women from such violence and discrimination and ensure that their right to equality is fully protected in the resolution of any family law or inheritance disputes. This fundamental right of women to equality is most comprehensively enshrined in the United Nations Convention on the Elimination of all forms of Discrimination against Women. This critical international human rights treaty was ratified by Canada in 1981.

Sadly, the continuing need for the Convention is evidenced daily in the widespread and grave human rights violations experienced by women around the world.  At the heart of discrimination and other human rights abuses against women is unequal access to power and thus unequal access to the means to protect their rights. The Convention is a valuable tool, relied upon by women’s rights defenders to protect the rights of women in every country.  Importantly, the Convention ensures that governments are not able to assert that matters involving the equality, safety or well-being of women are issues of private concern, beyond the responsibility of the state.  Governments have a positive obligation to enact laws and institutions to protect women from discrimination, be it in the home, the community or the public domain.  The Convention clearly identifies a range of steps that governments must take to protect women from discrimination in all aspects of their lives, including with respect to family and inheritance matters. 

 

Amnesty International is concerned that when the Arbitration Act is used to resolve disputes that involve the internationally recognized human rights of vulnerable or disenfranchised groups, such as the equality of women[3] and the best interests of children,[4] it is imperative that the arbitration process and the system of law that is applied scrupulously upholds those rights. 

 

In Canada, the right to women’s equality and the protection of the best interests of children in family and inheritance matters have been developed by the courts and are protected through legislation such as the federal Divorce Act and provincial level laws dealing with marital property, child custody and support, spousal support, and inheritance, all of which are interpreted and applied within the context of the Canadian Charter of Rights and Freedoms. 

 

The court system, operating within this legal framework, is expected and required to ensure that Canada’s international human rights obligations, including the right of women to equality, are upheld.   Amnesty International is concerned that allowing the use of religious laws to resolve family and inheritance disputes, effectively establishes a parallel legal system for the parties involved, which operates within but is separate from the provincial and federal legal systems. Those individuals and institutions that develop or interpret religious based laws are not formally accountable in the same way as the Ontario government, which is responsible for ensuring compliance with international human rights standards. Religious based laws do not provide explicit assurances that basic rights will be upheld. However, legislation such as the Family Law Act does provide assurances that basic rights, particularly those of women, will be upheld and protected.

 

Given the ongoing vulnerability of women around the world to violence and discrimination, governments must be vigilant in ensuring that laws that protect the basic rights of women are in place and are consistently enforced, certainly including in the areas of family law and inheritance.  Amnesty International is of the view that the particular vulnerability of women to serious human rights abuses in areas that are often argued to be of “private” concern, such as within the family, requires governments to vigorously comply with their obligation to enact, apply and enforce legislation that provides women with the protection from discrimination that is their basic right.[5] 

 

When governments allow what is effectively the privatization of the legal processes that will be applied to resolve family and inheritance disputes they may directly or indirectly abdicate their responsibility to live up to this obligation. Allowing a variety of different legal systems to be used within any one country to resolve family and inheritance disputes raises the very real risk that some of those processes will provide inconsistent and even lesser levels of protection for women’s rights. 

 

Parallel and alternative legal mechanisms may in some contexts help to enhance or strengthen the protection of fundamental human rights of particular sectors of society, such as when traditional criminal justice processes are applied within Indigenous communities. Such systems need to function in concert with formal legal systems and in cooperation with government authorities to ensure full compliance of international human rights standards.  However, based on our experience and the experience of other human rights organizations, we have reason to believe that many dispute resolution processes that apply religious laws are significantly discriminatory towards women.[6] 

 

At this point in time, Amnesty International is concerned that it has not been adequately demonstrated that religious laws, including Muslim, Jewish and Christian legal codes, can be applied under Ontario’s Arbitration Act in a manner that will scrupulously ensure the non-discriminatory treatment of women.

 

As highlighted above, the use of religious and customary laws in resolving criminal and civil disputes is an issue of concern to Amnesty International globally.  We have documented alarming levels of discrimination and violence, particularly for women, in the use of these laws. Canada has played a leadership role internationally in developing international human rights standards to protect the fundamental rights of women; the very rights undermined by some religious and customary law systems.  Effective measures have not yet been put in place at national or international levels to address this very serious human rights concern. We urge the government of Ontario to carefully consider this global reality and to the message that will be conveyed globally as it considers the question of the scope and nature of the laws that can be used under the Arbitration Act.

 

Sincerely,

 

Alex Neve

Secretary General



[1] Pakistan: Violence against women in the name of honour, Amnesty International, April 2000;

Afghanistan: Women still under attack - a systematic failure to protect, Amnesty International

May 2005; Iraq: Decades of Suffering – now women deserve better, Amnesty International, May 2005; Nigeria: Unheard voices: violence against women in the family, Amnesty International, May, 2005.

[2] For example: It’s in our hands: Stop Violence against Women, Amnesty International, 2004.

[3] Convention on the Elimination of all forms of Discrimination against Women, (hereafter “Women’s Convention”), article 1.

[4] Convention on the Rights of the Child, article 3.

[5] Women’s Convention, article 2, including article 2(e) specifying that women must be protected from discrimination “by any person, organization or enterprise.”

[6] For example: see previous references in footnote #1 and Nigeria: BAOBAB for Women’s Human Rights and Amnesty International Joint Statement on the implementation of new Shari-based penal codes in northern Nigeria, March 25, 2002.