September 11, 2005

Frying pan into fire

This should be interesting: changing a discriminatory provincial law into an unenforceable one.

There is no WAY Dalton's solution is going to work, I'm afraid. You've got to give the guy credit for trying to cut the Gordian knot on the sharia arbitration issue. But there's no way you can ban everybody, including devout Jews and Christians, from letting their religious principles be their guide in resolving a civil dispute by mutual agreement, yet allow them to do so if their principles are NOT religiously derived. Priests and rabbis (and imams) have been solving neighborhood disputes for centuries, and nothing's going to change that. Show me how you construct that legal framework in a way that could possibly be consistently applied, let alone survive a Charter challenge. Prediction: he'll be backpedalling on this in time for the Monday night news.

UPDATE, Monday morning: As predicted there is already considerable confusion, and possible early signs of backpedalling, in regard to the Premier's off-the-cuff statement on prohibiting sharia yesterday.

The Globe quotes McGuinty's statement this way: ""I've come to the conclusion that the debate has gone on long enough. There will be no sharia law in Ontario... There will be no religious arbitration in Ontario... There will be one law for all Ontarians."

But the Star quotes him adding a caveat that didn't make the initial wire stories:

"Ontarians will always have the right to seek advice from anyone in matters of family law, including religious advice. But no longer will religious arbitration be deciding matters of family law."

This is a big difference. While the use of religious codes in family law has been the subject of the most debate, arbitrators also do a lot of business in straight-out civil disputes and property arbitrations, in any jurisdiction. Almost no one minds if these issues continue to be actionable through voluntary religious arbitration. All the controversy has swirled around family law -- divorce, custody, adoption, and inheritance disputes.

Indeed, this would be the logical and most popular position to take... forbid the religiously-based determination of family law issues, particularly those involving children, but continue to allow other civil arbitration.

McGuinty's statements (from the same Canadian Press interview) are mutually contradictory on whether non-family law forms of religious arbitration will still be allowed. I'm pretty sure he meant to restrict his comments to family law arbitrations, and that any legal proposal his government makes will actually focus on restricting the range of arbitrated settlements in this area. His office will likely clarify his position along these lines soon. But his making impromptu remarks which could mean two very different things is no way to introduce a policy change. All he's done so far here is give Christian, Jewish and Muslim religious groups an easy victory when he ultimately partially retracts his own "no religious arbitration in Ontario" statement.

Posted by BruceR at 07:59 PM