Jun. 8, 2005. 01:00 AM

One justice system or many?

CAROL GOAR

Power, once delegated, is hard to take back.

That is the practical dilemma confronting Attorney-General Michael Bryant as he ponders what to do about the growth of religious arbitration — specifically the use of Islamic law — in settling family disputes.

Race, religion and gender are a lethal mix.

That is the political dilemma Bryant faces. No matter what course of action he takes, he is bound to hurt someone.

For almost six months, the province's top law officer has been studying a report submitted to him by former attorney-general Marion Boyd. She recommended that the province continue to let Muslim tribunals apply Islamic law — known as sharia — in marital and inheritance disputes, provided both parties go into the process voluntarily and all decisions can be appealed in the province's courts.

Bryant has yet to respond. An aide would only say that he "hopes to have a decision soon."

Any chance the minister might have had to think through the pros and cons quietly vanished last month when the Quebec legislature passed a motion unanimously rejecting the use of Islamic tribunals. That stirred up a highly polarized debate in Ontario.

Judging from the calls for action coming from the two sides, one would think that all Bryant has to do is make a simple choice: Ban the use of sharia or affirm that religious arbitration has a place in the province's legal system.

Unfortunately, neither option is as easy at it looks. To understand why, a bit of history is necessary.

Fourteen years ago, the Ontario government passed the Arbitration Act. The New Democrats, who were in power at the time, wanted to alleviate pressure on the province's overburdened court system.

The legislation allowed individuals involved in family or civil disputes to sit down with an impartial referee — a religious authority, a retired judge, a community leader — and try to reach a settlement. If the arbitrator's ruling proved acceptable to both sides and consistent with Canadian law, it would be considered binding. Although nobody called it that, it was a partial privatization of the justice system.

Jewish and Catholic groups quickly took advantage of the new rules and set up tribunals to apply their religious principles to marital and property disputes. It wasn't until Muslims formally did likewise in late 2003 that protests were raised.

Feminists, human rights activists and women who had fled harsh Islamic regimes warned that Ontario was putting in place a two-tiered legal system, placing women's rights at risk and importing the regressive features of other cultures.

Just say no, they urged.

But if Bryant were to do that, he'd have to disallow all religious arbitration. It would be unfair to permit Jews and Catholics to use the ancient tenets of their faiths — some of which are quite harsh and misogynist — to settle disputes while denying Muslims the same right.

Ending arbitration would produce a flood of court cases, requiring an expansion of the judicial system. The government would have to hire more judges and translators and provide more legal aid. It would have to cut waiting times, modernize infrastructure that has fallen into disrepair and open new courts.

Desirable as all this sounds, it would be extremely expensive. Unless Bryant knows where to get the money, promising a single secular justice system for all would be irresponsible.

The alternative — leaving the status quo in place with a few refinements — would be cheaper and easier. But it, too, would pose problems.

The first is that many women, including Liberal MPPs, believe sharia is incompatible with the guarantee of gender equality enshrined in Canada's Charter of Rights. They find it offensive that women in this country should have to submit to religious jurisprudence from other lands.

The second is that it is virtually impossible to ensure fairness when justice is meted out in private. No matter what safeguards are put in place — access to legal counsel, training for arbitrators, the right to appeal to the courts — a woman who speaks little English and fears being ostracized from her community will be vulnerable to victimization.

This issue has split Muslims, taken women aback and raised profound questions about the limits of multiculturalism.

For Bryant it comes to down a thankless choice: Stick with affordable but unreliable private justice or convince Ontarians to pay for a publicly funded, publicly accountable legal system.

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