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Bakht - Arbitration, Religion and Family Law

Part Two: Human Rights Framework

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I.       Culture and multiculturalism

Cultural autonomy and gender equality are not always easily reconciled.  The clash between these areas is a pervasive issue in the law.  States with a multitude of communities within their borders are likely to face this issue in different guises and perhaps with increasing frequency.  Canada has for years grappled with the question of how to incorporate a plurality of cultures and traditions while simultaneously defining a nation in the absence of a single collective identity.  This issue has been complicated by the fact that Canada has a commitment to upholding both a policy of multiculturalism and an obligation towards women’s rights.  The Canadian Charter of Rights and Freedoms protects both the freedom of religion and the equality rights of all people from infringements by the state.  Although these values need not necessarily conflict, in the context of religious arbitration tribunals, they have created a tension that must be resolved.  

In recognition of the increasing diversity of many societies, several authors have posited a theory of liberalism that includes the accommodation of the cultural rights of certain minority groups.  Will Kymlicka for example, has argued that individuals born into minority groups may need protection from the majority society in order to enable their autonomy.  A multicultural or differentiated citizenship[1] model relies on the protection of basic individual rights for a just social order.  However, it also recognizes that justice may require the recognition of traditions and unique ways of life for members of non-dominant cultural minorities, through group-based protections.  While liberal theory posits that individuals must decide how best to achieve the good life, the protection of minority rights acknowledges that culture is often the context which enables this choice.  Kymlicka has convincingly argued that culture allows individuals to meaningfully comprehend society; it is the lens that permits one to see the array of available options “across the full range of human activities including religious, recreational, social, educational and economic…in public and private spheres.”[2] 

A.          Multiculturalism in Canada

Canada’s commitment to cultural pluralism is evidenced by its official policy of bilingualism and multiculturalism.  The multicultural framework in Canada “openly promotes the values of diversity as a necessary, beneficial, and inescapable feature of Canadian society.”[3]  This framework is thought to be a way in which minorities can retain cultural distinction without compromising their social equality.  In its early days, Canada’s policy of multiculturalism was criticized for among other things its emphasis on the mere “song and dance” aspect of cultural pluralism, its failure to improve the living conditions of many new immigrants and the promotion of fragmentation rather than a common vision of values for all Canadians.[4] 

In the late 1970s, the government’s focus with multiculturalism funding was aimed at transforming public opinion toward the increasing cultural diversity in Canada combined with combating racism.  In the context of large decreases to the multiculturalism budget generally in the 1990s, activities with a view to multicultural or multiethnic programmes were more likely to be funded than those of a monocultural or monoethnic nature.[5]  More recently however, the “federal government has progressively moved to resolve the ongoing tension between multiculturalism and citizenship in favour of the latter.”[6]  In 1997, the multiculturalism programme was modified to focus on a three pronged approach:  (1) Canadian identity (people of all backgrounds should feel a sense of belonging and attachment to Canada); (2) civic participation (everyone must be an active citizen, concerned with shaping the future of their communities and their country); and (3) social justice (everyone must be involved in building a society that ensures fair and equitable treatment and that respects the dignity of and accommodates people of all origins).[7]  Direct funding to ethnocultural organizations is now seen as problematic because it is argued that such funding upholds the perception that multiculturalism is for special interest groups rather than for all Canadians.[8]

Different to the Canadian government’s policy of multiculturalism, the government of Quebec has adopted a policy of “interculturalism” that recognizes pluralism as a feature of modern Quebec, but seeks to integrate immigrants to a common civic culture using the French language.  The promotion of French, the language of the majority, as the common public language of all Quebecers is seen as the instrument that allows the socialization of Quebecers from all origins and forces interaction between them.[9]

Despite some changes in policy content around multiculturalism that have put a greater emphasis on loyalty to Canada, the accommodation of cultural and religious groups[10] has remained a commitment in order to combat racism, xenophobia, ethnocentrism, discrimination and religious intolerance.  Thus, Canada has made special efforts to protect minority groups from the destabilizing impact of the political, economic, social and cultural hegemony of the majority.  For example, the religious community of Sikhs has been exempted from motorcycle helmet laws in British Columbia[11] and from the official dress-code of the RCMP.[12]  Similarly, some Mennonite communities, the Doukhobours and the Hutterites have been granted certain exemptions from mandatory education in recognition of the potentially substantial interference that a broad and secular education could have on the religious development of the children from these communities.[13] 

B.      The Multiculturalism Paradox

While there is little doubt that the accommodation of minority groups is an indisputable virtue, multicultural accommodation policies have typically been concerned with the relationship among different cultures and between a given minority community and the state.  Often overlooked, but equally important, is the dilemma concerning the potentially injurious effects of inter-group accommodation upon intra-group power relations.[14]  Well-meaning accommodation policies by the state, aimed at leveling the playing field between minority communities and the majority society, may unwittingly allow systemic maltreatment of individuals within the accommodated minority group, “an impact in some cases so severe that it nullifies the individual rights of citizens.”[15]

Will Kymlicka has referred to this phenomenon as the distinction between external protections, or group differentiated policies designed to “protect a particular ethnic or national group from the destabilizing impact of the decisions of the larger society” versus internal restrictions, or cultural group claims to “restrict the liberty of members in the name of group solidarity”.[16]  While Kymlicka is in favour of external protections, he does not support the use of internal restrictions concluding that they are inconsistent with a system of minority rights that appeal to individual freedom or personal autonomy.  He notes that a differentiated citizenship model must recognize the value and primacy of the individual while also recognizing the legitimacy of group-based accommodation.  Kymlicka’s two concepts of external protections and internal protections can be viewed oppositionally as the two concepts are often two sides of the same coin.  Thus, certain religious communities would view the withdrawal of their children from mandatory education as a necessary external protection in order to prevent undermining the religious development of the child.  Kymlicka himself would argue that this group is imposing an internal restriction on its members by essentially making it difficult for their members to leave the group by severely limiting the extent to which these children would learn about the outside world.[17] 

The multiculturalism paradox is represented by the reality in which sound attempts to empower traditionally marginalized minority communities ultimately may reinforce power hierarchies within the accommodated community.  It appears then, that the task must be to find a way of accommodating cultural differences, while also protecting at-risk group members from sanctioned violations of their state-guaranteed rights.  How can one protect women and other vulnerable individuals within the ambit of religious protection?  “Indeed, one cannot comprehend (let alone redress) the plight of the individual in the multiculturalism paradox if one does not understand the complex and overlapping affiliations existing between the state, the group and the individual.”[18]

C.      The Impact of Accommodation on Minority Women

As previously noted, the arena of family law has long remained controversial as it brings to the surface the ability of a group to demarcate the boundaries of its membership while also being a key site of oppression for women.  Many minority communities operating within a larger political entity possess traditions pertaining specifically to the family that have historically served as important manifestations of distinct cultural identity, “making family law a central pillar in the cultural edifice for ensuring the group’s continuity and coherence over time.”[19] 

The importance of substantively accommodating women within cultural communities is illustrated by the situation of Native women in Canada.  In the pre-Charter case of Canada (Attorney General) v. Lavell,[20] an Aboriginal woman lost her challenge to the Indian Act which provided that unlike Native men, Native women who married a non-Native lost their status as Indians, as did their children.  Although the Indian Act was the legislation of a colonial regime, in this case, the interests of the state were in line with the patriarchal interests of Native men.  In 1981, the Human Rights Committee found that the Indian Act unreasonably deprived Sandra Lovelace of her right to belong to the Indian minority and to live on and enjoy her culture under article 27 of the International Covenant on Civil and Political Rights (ICCPR).[21]  Subsequent to this decision and the enactment of the Charter, the Indian Act was amended in 1985 and the statutory discrimination found in s. 12(1)(b) against women was eliminated.[22]  In reality, the legislation has left

a continuing legacy of discrimination.  A Bill C-31 reinstatee cannot pass her own status on to her children: only children born with a status father will have status.  This “second-generation cut-off” enacted in Bill C-31 and now effected by s. 6(2) of the Indian Act means that cousins of the first degree will have different status under the Act depending on whether they descend in the male or the female line.  Brothers and sisters have different ability to pass on their status to their children.  A Bill C-31 woman who has a child out of wedlock must name the father, and he must be status, before her child is eligible.  Mothers who are restored to Indian status by Bill C-31 will be grandmothers of children who cannot claim status, as well as those who can, depending on the marital arrangements of their parents.  The Bill effects finer and finer differentiations among the Aboriginal community, has divided families, and will result in the extinction of some First Nations as the affects of the second generation cut-off are realized. [23]

Contrary to the views of some Band Councils who have argued “that the right to discriminate against and exclude women is part of the traditional heritage of Aboriginal peoples”,[24] the Native Women’s Association of Canada recommends that there be a national Aboriginal Bill of Rights drafted from the grassroots that would be applicable to First Nations governments.[25] 

Gender discrimination in family law has systemic effects on women’s equality, given the substantive breadth of that law, as well as its impact on women’s ability to exercise specific rights.  Family law defines property relations between spouses and determines the economic and parental consequences of divorce.  For women, these stakes are especially high with separation and divorce typically resulting in the feminization of poverty.[26]  The defence of “cultural practices” will have a much greater impact on the lives of women and girls than on the lives of men and boys, since far more of women’s time and energy goes into preserving and maintaining the private realm.   

Women’s roles inside the home as caregivers and nurturers are central not only to religious thought, but also to contemporary western political thought.  Familial ideology is also central to capitalism…The nurturing nature of the family, in contrast with the marketplace, generates the belief that the impersonal force of the state should be kept out of the familial realm.  Finally, the family and women’s reproductive role, as well as their roles as care-givers and nurturers, are central to nationalism, which views women as reproducers of the nation, transmitters of its culture, and symbols of the nation.[27]

In cases of separation or divorce, when women living within certain religious communities are told that they have limited or no legal rights to property, spousal support, or custody of their children, the accommodation of their group’s traditions means that women’s basic rights as individual citizens are violated.  A growing body of research shows that accommodation in the family law arena imposes upon women a systemic and disproportionate burden, particularly in their traditional gender roles as wives and mothers.[28] 

Some countries with multiple religious groups, particularly the ex-colonies of France and Britain, have retained religious law in family and inheritance matters (despite the struggles of women in these countries)[29] and secular law in commercial and criminal matters.  This was originally a colonial strategy to ensure civil unrest.[30]  Thus, individuals of certain religious affiliations have the internal rules of their respective religion apply to such matters as marriage, divorce, support, custody/access and inheritance while secular or civil law governs all other fields.  In such multi-confessional states this body of law is known as “personal status law.”[31]  Personal status law may regulate procedural as well as substantive rights and thus, condition women’s ability to obtain redress for violations of the latter, as illustrated by the example of evidentiary rules that assign lesser weight to women’s testimony or completely bar their testimony.[32] 

Importantly, under Canadian law there is no recognized concept of personal status law.  Canadian law makes no distinction between secular and religious law.  There is a single set of laws that apply to all people within Canada’s jurisdiction.  Unlike France and Germany which may allow a “direct” application of family law from Muslim countries for non-citizen Muslims,[33] Canada has a single set of laws that apply to all people within its jurisdiction.  In France, 

as a result of stipulations of international private law and bilateral agreements, France must apply the laws of the foreigner’s country of… [nationality in most] matters of family law, more specifically in relation to disputes over “the status and capacity of persons”.   This is true in so far as doing so does not contravene French public order or violate an international convention to which France is a party [such as the European Human Rights Convention].  These rules of international private law that incorporate…family law [from Muslim countries] at the domestic level to non-French citizens living within France are of crucial importance, as only one out of four million Muslims living in France have obtained French citizenship.[34] 

Canada by contrast, follows the law of domicile where regardless of citizenship all people are subject to the same law by virtue of their residence in Canada.

                       
Susan Okin has asked, what happens when group rights are anti-feminist?[35]  She states “[o]ppressed people have often internalized their oppression so well that they have no sense of what they are justly entitled to as human beings.”[36]  That women from minority communities often feel the need to choose between their struggle against the sexism inside their communities and the racism/intolerance directed against them explains why oppression against women in minority communities often remains unchallenged by the women inside the community.  The internalization process is certainly one of the most problematic legacies of long-term oppression.  Okin ascribes to false consciousness potential disagreement arising from cultural defenses offered by women themselves.  She explains that “[c]oming to terms with very little is no recipe for social justice....committed outsiders can often be better analysts and critics of social injustice than those who live within the relevant culture.”[37]  This argument addresses the inadequacy of a gender-neutral policy of cultural accommodation yet it is unsatisfactory in explaining the situation of women who may still find value and meaning in their community’s cultural tradition and in continued group membership, particularly where the minority culture itself is subject to repressive pressures from the broader society. 

While the liberatory and creative potential of allowing marginalized perspectives to redefine women’s condition is essential, states must not take advantage of the reluctance of women to speak out and interpret it to mean that minority women are content in their oppressive circumstances.[38]  The relationship between multiculturalism and feminism ought not to amount to a zero-sum game, in which any strengthening of a minority group’s rights implies an accompanying weakening in the rights for that minority group’s female group members.[39]  The resolution to the multiculturalism paradox cannot be guided by “an either-your-rights-or-your-culture ultimatum” in which women may either enjoy the full spectrum of their state guaranteed rights or participate in their minority communities.[40]  A new multicultural paradigm must break away from the either/or opposition as this forced stand off between two vital aspects of the experiences of women is unrealistic and undesirable. 

II.       Religious freedom

A.          Freedom of Religion Under Domestic Law

In Canada, the right to religious freedom is a basic human right protected both domestically and ratified as an international obligation.  Section 2(a) of the Charter guarantees to “everyone” the “fundamental freedom” of “conscience and religion.”[41]  Like other Charter rights, s. 2(a) is subject to the s. 1 clause which may limit freedom of religion or conscience if it comes within the phrase “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”[42]  Most recently, the Supreme Court of Canada stated in Reference re Same-Sex Marriage,[43] “The protection of freedom of religion afforded by s. 2(a) of the Charter is broad and jealously guarded in our Charter jurisprudence.”[44]  In Big M Drug Mart, Justice Dickson offered the following definition of freedom of religion:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.  The right to freedom of religion enshrined in s. 2(a) encompasses the right to believe and entertain the religious beliefs of one’s choice, the right to declare one’s religious beliefs openly and the right to manifest religious belief by worship, teaching, dissemination and religious practice.[45]

Section 2(a) emphasizes the protection afforded to both religious beliefs as well as religious practices.  Peter Hogg has observed that Justice Dickson’s comments borrow from the language of article 18 of the ICCPR.[46]  At least one author has suggested that the right to freedom of religion is conceptualized in Canada as a negative liberty, that is, “it does not impose any positive obligation upon the state…to recognize positive legal effects to religious norms.”[47] 

Custom, practice and individual belief within religious communities often diverge significantly from legal doctrine.  However, each of these manifestations of religious belief are recognized and entitled to protection on an equal footing with religious law.[48]  

The extent to which a particular interpretation of religious law is considered to be authoritative or aberrant, or a particular practice is deemed to have a legitimate foundation in religious law, does not determine whether international guarantees of religious freedom are applicable.  Those guarantees recognize all such interpretations (with the exception of spurious or fraudulent claims) as manifestations of religion.[49] 

Importantly, the Supreme Court of Canada has stated that it will not enquire into the contents of religious belief:

[T]he basic principles underlying freedom of religion support the view that freedom of religion consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials…Consequently, both obligatory as well as voluntary expressions of faith should be protected under the Quebec (and the Canadian) Charter. It is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection.[50]

Thus in the Canadian context, an individual’s sincere belief in a particular religious practice is given predominance over even the normative legal code of belief purported by religious authorities or the community.  The Supreme Court’s interpretation of religious freedom suggests that the imposition of an arbitrator’s binding interpretation of a religious norm may violate an individual’s subjective view of her/his religion. 

While the inclusion of custom or sincerely held beliefs in the definition of religious law may entail the additional burden of engaging with offensive patriarchal practices never meant to be part of a religious code,[51] the use of custom may also be used for progressive purposes.   Religious law is not static.  Custom and practice can assist in modifying religious traditions over time, “even within religious communities that insist on the immutability of the law as defined in religious texts held to be divinely inspired.”[52]  It has been noted that “Islam was not intended to freeze human history at the point in time at which God’s Word was revealed to the Prophet.”[53] 

B.          Religious Freedom Under International Law

Under international law, the Universal Declaration of Human Rights, the ICCPR and the Declaration on the Elimination of All Forms of Religious Intolerance and of Discrimination Based on Religion or Belief (Declaration on Religious Intolerance) all guarantee the freedom, either individually or “in community with others” and “in public or private,” to manifest religion in worship, observance, practice or teaching.[54]   Donna Sullivan has argued that the right to manifest one’s religion or belief encompasses the right to observe and apply religious law, including the right to establish and maintain religious tribunals.  “The application of religious law, by formal tribunals or religious leaders, in communal or individual life, and in public or private life, constitutes the observance and practice of religion.”[55]  In a number of belief systems including Islam, the observance of religious law is believed by some to be integral to religious practice.  These interpretations of Islam emphasize the numerous prescriptive aspects of the religion on the daily life of Muslims.  Importantly however, Islam also advocates that Muslims living in non-Muslim countries have a duty to obey the laws of that land.[56]  Thus, while the right to practice one’s religion may include the use of religious tribunals, there is no necessary implication that the decisions of religious tribunals have civil effect.  

As will be discussed in the following section, international and domestic norms guaranteeing the freedom of religion or belief are not absolute.  Under international law countries are permitted to restrict manifestations of the freedom of religion in order to protect the rights of others.[57]  In Canada, rights under the Charter can also be limited by virtue of s. 1 which states that the rights and freedoms set out in it are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”[58] 

III.   The Legal Supremacy of Women’s Rights in the Charter and in CEDAW

A.          International Legal Framework

The potential clash between culture and religion, on the one hand, and human rights or gender equality,[59] on the other, is expressly regulated in two international conventions— the CEDAW and the ICCPR, both of which have been ratified by Canada.  Article 5(a) of CEDAW reads: 

States Parties shall take all appropriate measures:

(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;

Similarly, article 2(f) of CEDAW provides that:

States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:

(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

Article 5(a) imposes a positive obligation on states parties to “modify…social and cultural” practices in the case of a conflict, and article 2(f) imposes an obligation to “modify or abolish…customs and practices” that discriminate against women.  Clearly then, CEDAW gives superior force to the right to gender equality over cultural practices or custom, including religious norms,[60] thus creating a clear hierarchy of values. 

The U.N. Committee on CEDAW has stated that Convention articles 2 and 3 “establish a comprehensive obligation to eliminate discrimination in all its forms in addition to the specific obligations under article 5-16”.[61]  The prohibition of gender discrimination set forth in the Convention explicitly extends beyond state action to non-governmental conduct.[62] 

Article 18(3) of the ICCPR also expressly regulates any potential conflict between the right to manifest one’s religion and the fundamental rights or freedoms of others.  It states: 

Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.[63]

Article 18(3) thus provides an exception to the “freedom to manifest one’s religion”, should a confrontation materialize with the fundamental rights and freedoms of others, including the right to gender equality also protected in the ICCPR pursuant to article 3.[64]   Through this exception, a hierarchy of rights is implicitly introduced, albeit in less categorical language than in CEDAW.[65]  Indeed the article, in providing an exception for such limitations as may be “necessary” to protect fundamental rights, may be read to imply that there will be an obligation on states parties to impose them.  This appears to be the reading implicit in the Human Rights Committee’s General Comment on the Equality of Rights between Men and Women, which although not expressly referring to article 18(3), holds that the right to religion does not allow any state, group or person to violate women’s equality rights.[66] 

B.          Canada’s Rights Regime

In Canadian law, as in international law, both the right to gender equality and the right to freedom of religion and multiculturalism are protected.  The right to equality between women and men is protected under the general equality provision of s. 15 of the Charter and additionally under s. 28 of the Charter which provides that “[n]otwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”[67]  The relationship between s. 15 and s. 28 of the Charter has been described in the following manner:   

Section 28 has…to be viewed in the light of the ‘limitations’ clause in s. 1 of the Charter and the ‘non abstante’ clause in s. 33. Based upon past experience, there was fear either that the legislatures through s. 33 might, on the one hand, exempt a law discriminating against women from the ambit of the Charter, or, on the other hand, that the courts might, through the ‘limitations’ clause in s. 1, so construe a law which discriminates against women as to consider it such a reasonable limit ‘as can be demonstrably justified in a free and democratic society’.[68]

While s. 15 of the Charter is subject to the s. 33 legislative override clause, s. 28 is not.  Similarly, s. 15 is subject to the s. 1 limitations clause however, because of section 28, it will almost never be “demonstrably justifiable” to deny sexual equality as provided by section 15(1).[69]

Freedom of religion is protected by virtue of s. 2(a) of the Charter and religious minorities also have the right to be free from discrimination on the basis of s. 15’s general equality provision.  The preservation of multiculturalism is recognized in Canada by virtue of s. 27 of the Charter which states that “[t]his Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.”[70]  Moreover, in Reference re Secession of Quebec,[71] the Supreme Court of Canada emphasized respect for minorities as an underlying principle of the constitution.  The Court noted that the constitution is more than a written text and that the underlying principles of the constitution inform the overall appreciation of constitutional rights and obligations. 

Canada’s policy of multiculturalism[72] has enabled the federal government to encourage and assist in the funding of certain activities of multi-ethnic groups with a view to increasing the dialogue and integration of minority groups in Canadian society.  Multiculturalism in the courts on the other hand, has manifested itself through the concept of reasonable accommodation wherein for example, a duty is imposed on an employer to take reasonable steps short of undue hardship to accommodate the religious practices of the employee when the employee has suffered or will suffer discrimination from a working rule or condition.[73]  Though multiculturalism may not confer actual positive rights,[74] the courts must give significance to the entrenched policy of pluralistic cultural preservation and enhancement in s. 27 of the Charter: 

Therefore, my conclusion that a law infringes freedom of religion, if it makes it more difficult and more costly to practise one’s religion, is supported by the fact that such a law does not help to preserve and certainly does not serve to enhance or promote that part of one’s culture which is religiously based.  Section 27 determines that ours will be an open and pluralistic society which must accommodate the small inconveniences that might occur where different religious practices are recognized as permissible exceptions to otherwise justifiable homogeneous requirements.[75] 

It is not uncommon for rights in the Charter to conflict.  The Supreme Court of Canada has held that “[t]he ultimate protection of any particular Charter right must be measured in relation to other rights and with a view to the underlying context in which the apparent conflict arises.”[76]  Though the Court has required a balancing of competing rights claims with a view to the particular context, it has avoided explicitly finding a hierarchy of Charter rights.  In Dagenais v. Canadian Broadcasting Corporation, the Court held:

A hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict . . .Charter principles require a balance to be achieved that fully respects the importance of both sets of rights.[77]

At issue in R. v. O’Connor[78] was the right of sexual assault defendants to secure production of complainants’ therapeutic records held by third parties, as well as the process that might govern the production of such records.  A large coalition of women’s groups intervened to oppose the extension of disclosure principles and practice to therapeutic records in order to stress the importance of women’s equality in sexual assault cases.[79]  In balancing the right of an accused to a fair trial with the competing rights of a sexual assault complainant to privacy and to equality without discrimination, the Supreme Court was unanimous in holding that defendants have a right to request production of records held by third parties.  The federal government responded to the O’Connor decision with Bill C-46, correcting the Supreme Court’s narrow focus on the right to a fair trial by promoting women’s privacy and equality considerations.[80]  In 1999, the constitutionality of the new provision was at issue in R. v. Mills.[81]  Prior to this the Court’s interpretation of fair trial rights was singularly male-centric with a narrow focus on only the criminally accused.  In Mills, the Court was willing to concede that the arena of sexual assault laws required a broader lens of interpretation and included the voices of women and children who are victimized and made vulnerable by sexual offences.  Consideration of a woman’s right to privacy and equality was held to be necessary and the Court expanded the traditional understanding of the right to a fair trial.

The Supreme Court’s jurisprudence has approached the conflict between competing Charter rights with a generic balancing of rights.  It has “not grant[ed] jurisdiction in an all-or-nothing fashion to institutional representatives of cultural communities”,[82] however, neither has it explicitly mandated that women’s equality has primacy in situations of conflict with other rights.  The Court has preferred to address the issue of how much accommodation should be granted to minority groups and women on a case-by-case basis.  Nonetheless, the Court’s eventual willingness to expand the notion of the right to a fair trial to include women’s equality and privacy considerations suggests that an interpretation of freedom of religion could also be reconceptualized to incorporate women’s equality rights.  

Also of note is that the courts have refused to allow a “culture” defence to criminal defendants accused of killing their spouses.  In R. v. Ly,[83]  a Vietnamese man who strangled a woman with whom he had been living argued that his spouse’s infidelity provoked him to kill her. The issue in the case was the appropriate test for the defence of provocation which if successfully made lowers a conviction of murder to manslaughter.  Ly testified that his “wife’s infidelity had caused him to lose ‘face’ and ‘honour’, and this had a special importance to him because of his Vietnamese upbringing.”[84]  He argued that the jury should consider the characteristics peculiar to him, including his culture, when deciding what the ordinary person would have done in the circumstances.  The court refused to take this into consideration finding instead that the appropriate test was an objective one that considered the reaction of the ordinary reasonable person.[85]  This case illustrates that Canadian courts are unwilling to allow an individual to gain from his wrong based on the indiscriminate use of “culture”. 

C.          Islam and the Conflict between Women’s Rights and Religious Practice

The potential for conflict between women’s rights and the right to practice religion or belief arises in all major religious traditions.  Yet in the debate around religious arbitration in Ontario, Islam has received particular attention with respect to the fear of intolerant practices both from within and outside the Muslim community.  In her review of arbitration and family law and inheritance matters, Marion Boyd reported that the Islamic Council of Imams, “recognizing that most of the concern with respect to arbitration was directed at Islamic personal law, expressed a willingness for oversight of Muslim arbitration decisions, even if other decisions were not being similarly monitored.”[86] 

In Quebec, in the 1960s and 1970s the women’s movement fiercely opposed the domination of the Catholic Church, and its right to dictate how women would live their “private” lives.  For example, women vehemently challenged the right of the Church to forbid contraception and to force women to perform their “conjugal duty” to be continually available for their husbands’ sexual needs.  The Catholic Church mandated women’s submission to the men of their families for centuries and feminist resistance to this rule was expressed in many forms including public speeches, literature and theatre.  Feminists continue to struggle against the Vatican’s remarkably well-funded efforts to thwart women’s rights on an international scale. 

On a similar front, women are mobilizing against the rise of religious fundamentalism globally.  The international solidarity network Women Living Under Muslim Law (WLUML) has suggested that the rise of fundamentalisms in the world today is part and parcel of the rise of extreme right movements and of the expansion of liberal pro-capitalist politics.[87]   In combating Muslim fundamentalism in particular, the specific context of their lived reality, WLUML have fought against “the imposition of dress codes and forced veiling and the attacks on freedom of movement and on the rights to education and work under Taliban-like regimes.”[88] 

As Catholic feminists have done in their religion, many Muslim feminists are arguing for a progressive interpretation of Islam.[89]  Leila Sayeh and Adriaen Morse for example, have argued that “Islam mandates a status for women which is equal in dignity with that of men, and that all Muslims are compelled to complete God’s plan for such as revealed in his words and lessons.”[90]  In their view, most commentators have focused erroneously on Islam itself as the source of Muslim women’s persecution rather than the misinterpretation of sharia law perpetuated by patriarchal societies and leaders.  The unfortunate focus on Islam itself as the source of the persecution of women is misplaced and detracts from a true understanding of the nature of the plight of women in Muslim societies.[91] 

Azizah al-Hibri has noted that for the majority of Muslim women who are attached to their religion, the only way to resolve conflicts is to build a solid Muslim feminist jurisprudential basis which clearly shows that Islam does not deprive them of their rights, but demands these rights for them.  Al Hibri states that “they will not be liberated through the use of a secular approach imposed from the outside by international bodies or from above by…governments.”[92]  By contrast, WLUML have warned that the demand for separate laws based on religion for resolving family matters within the Muslim community will operate as deeply discriminatory and will be anti-women.[93]

D.          Conclusion: Universality and indivisibility of human rights

The universality and indivisibility of human rights is a well-recognized and fundamental principle.  The claim that human rights are universal is to assert that such rights as equal protection, physical security and freedom of religion are and must be the same everywhere.  Every person is entitled to enjoy her or his human rights simply by virtue of being human.  It is this universality of human rights that distinguishes them from other types of rights such as citizenship rights or contractual rights.  Human rights are also indivisible.  Enjoyment of one right is indivisibly inter-related to the enjoyment of other rights.  For instance, enjoyment of the highest attainable standard of health requires enjoyment of the rights to information and education as well as the right to an adequate standard of living.  Human beings have social, cultural and economic needs and aspirations that cannot be fragmented or compartmentalized, but are mutually dependent.  State policies and programmes should not therefore be aimed at implementing one particular right alone, but in combination with all other rights.[94] 

The ultimate goal of both international and Canadian human rights laws is to transform society so that it is more inclusive of women and others who experience disadvantage and marginalization.  An institutional framework that cannot respond to overlapping forms of discrimination and multiple grounds of discrimination does a disservice to the transformative potential of human rights and equality.  The evolution in human rights understanding over the past twenty-five years has led to a recognition that different forms of inequality do not exist in separate compartments.[95]  In fact, the Supreme Court of Canada recognizes that people experience discrimination in complex and multi-faceted ways.[96] 

A modernized institutional framework is required to respond to the range of discriminatory practices that are enmeshed with family law matters.  While cultural traditions affect the way in which a society organizes relationships within itself, they do not detract from the universalism of rights which are primarily concerned with the relationship of citizens with the state and the inherent dignity of persons and groups.  “Not only has relativism fallen on hard times, it has become the subject of angry criticism, much of it from the Third World, which tends to conceive conservative attitudes toward change as promoting the subservience of the underdeveloped nations.”[97]  Any resolution of the issue of arbitration tribunals using religious principles must not ignore these fundamental values of the human rights framework that are very much part of the progress we have made as a global community.