We are on to something BIG and MYSTERIOUS!

The collision of the right to contract, arbitration, substantive civil law, separation of church and state, and civil rights embodied in Canada’s (now seemingly interminable) struggle with faith-based arbitration must have created the Rorshach test of all inkblots for liberals and conservatives alike. Heads and hearts must be about to explode everywhere in Ontario.

Although we are puzzled with

(1)why this debate lingers,

(2) the cognitive dissonance it seems to have created, and

(3) why the US media has failed give it the attention it deserves,

we are convinced the conflict is something BIG and FUNDAMENTAL.

We are also convinced that the debate will fester until whatever mysteries are (ultimately) driving the fuss have been identified. We also warn the discussion will be fruitless unless all of us plumb some dark depths about our own beliefs, civil and religious.

The posts are now in the the hundreds and spread over weeks. I am including a few links and quotes from other sources merely to get you up to speed if you haven’t been following this (with no particular agreement or disagreement expressed). Also, we recently presented a paper (p.13, col. 2) that reported the Fifth Circuit’s review of an employment arbitration in which the arbitrator was required to decide based in part on a particular passage from Christian scripture.

The protests about the use of Muslim practice to do faith-based arbitration under a 1991 Canadian Law were on Ontario’s radar screen by September 4, 2005. The government fired off the nuclear option of ending all faith-based arbitrations in hopes of
killing the dispute, but succeeded only in upsetting everyone — Muslim, Jew and Christian. More tempered approaches have been
suggested and the debate just won’t go away. Victor Davis Hanson writes :

The debate over the 1991 Ontario Arbitrator Act and Sharia Law goes and on, and on, and on, and on, and on. The debate is like a slow moving train wreck that never runs seems to run out of rail. Strangely enough my position on the Arbitrator Act leaves me standing in a corner somewhat all by my blogsome. Lucky for me, I learned early in life that I can take a few shots to the head and still rise to my feet for a few more.

The 1991 Ontario Arbitrator Act was a piece of horrendously bad legislation and violated the principle of separation of Church and State and equality before the law for all. The Act essentially paid religious tribunals to rule and enforce their judgments utilizing the coercive power of the Secular State (where necessary) in matters of family or civil law providing that both parties were consenting adults and willingly gave up their secular family and civil rights. It made multiple systems of justice in the areas of family and civil law.

The initial rationale for this piece of legislation was one of those mushy-feel good multi-cultural moments and much was touted at the time as both a cost and time saving piece of legislation. It was to allegedly going to lighten the load on the overburden Ontario family and civil court system beyond our ken.

Marina Jimenz had a rather informative article in the Globe and Mail on Wednesday where she contended that rabbinical courts in Ontario are rarely used, and in fact, in the last year alone only two cases were resolved using the faith-based rabbinical court to settle a dispute.

Meredith Cartwright, a lawyer and lecturer in religion, law and sexuality at the University of Toronto, says the small number of family law cases rabbinical courts arbitrate illustrates that most couples resolve disputes over custody and child-support payments in civil court or in private arbitration that is not faith-based.Jewish groups have said they are considering a constitutional challenge to Premier Dalton McGuinty’s recently announced ban on such tribunals.

“Proponents of faith-based arbitration are misleading the public in pretending there is widespread use of this mechanism,” Ms. Cartwright said. “On this basis, they are asking for a new incarnation of faith-based arbitrations with government oversight and funding, which completely erodes the distinction between religion and state.”

Rabbi Reuven Tradburks, secretary of the Beit Din (rabbinical courts) of the Council of Orthodox Rabbis of Toronto, conceded that the number of cases involving family disputes is small, but would not comment on the exact number. He said the principle underlying the right for Jews to go to rabbinical courts to resolve civil disputes is significant, however, and that settlements should have the imprimatur of the state.

But the Rabbi is somewhat misleading. Even before the 1991 Ontario Arbitration Act there was nothing in law that prevented two or more parties of consenting adults from resolving any dispute before a mediator of a faith-based tribunal. Once the law is repealed there still will be no law restricting any consenting adults to seek a resolution to any family or civil dispute using a faith-based tribunal. What will be missing is that after this horrendously bad law is repealed is any ruling from the faith based tribunal will not have the “imprimatur” of the state’s coercive authority nor will the faith-based arbitration be overseen or funded by the state. In simple English, it will be completely an out of pocket expense borne solely by the parties involved. I ask you as a taxpayer, why should you be compelled to fund and oversee multiple religious systems of family and civil courts of justice?

For Sharia law to be accepted and have an Islamic religious tribunal funded and overseen by the state with all the coercive power of the state to enforce its judgments would require significant amendments and safeguards added to the 1991 Ontario Arbitration Act. Bad law always means well and always requires constant revision. But, of course, to the critics of McGuinty’s decision to repeal the Act against all faith-based tribunals, all Sharia, is all good, all the time. I would challenge the pro-Sharia fraction to point to one country where Sharia law is the law of the land and move there post haste.

For the record, I would rather take my chances with the bombastic Michele Lansberg and the more than tedious Margaret Atwood than stand with the likes of Dr. Muhammad Al-Hajj, noted Sharia expert on the appropriate sized rod to beat your wife with, and the exceedingly dry Dr. Mohamed Elmasry. At least with the old broads, I could get a drink when I wanted one and they wouldn’t be discussing what sized stick to beat me with when I was busy being disobedient on principle.

We will be posting more as we plumb our own depths and summon our courage to talk publicly about some very delicate issues. Let’s all get past the boilerplate and sloganeering, both liberal and conservative, that’s out there. The issues this debate exposes ARE the issues of government, disputing and religion of the early 21st century.

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