by KRISTIAN GRAVENOR

When one thinks of sharia, images of stern imams ordering the stoning of an adulteress or the amputation of a thief's hand might spring to mind - but in fact Muslim religious law has already been practised and recognized in civil law cases on an ad hoc basis in Ontario since 1991, and leaders of Quebec's fast-growing Muslim community are requesting that the same system be implemented here as well.

"I wouldn't be surprised if that system comes here," says Pascale Fournier, an expert on issues of Muslim law at McGill's law faculty. "Although I don't think it will get the same response from the Quebec government, and the chances that Quebecers would really accept it are pretty low, I believe."

Currently in Quebec, Muslims are free to seek religious mediation in the event of a civil dispute but both sides are free to ignore any judgement, and courts do not recognize or enforce the religious ruling. Ontario allows Muslims to voluntarily opt into legally binding arbitration on civil or family issues, to be overseen by a religious official. Whatever the imam decides is then enforceable in Ontario's courts, where participants can also appeal the imam's rulings.

Article 2639 of Quebec's Civil Code would seemingly make any such arrangement impossible by outlawing arbitration in family law matters, but Fournier says that such a statute could be challenged. "Muslims could possibly make a constitutional challenge of the Civil Code on the basis that to follow sharia law is crucial to their civil justice, that it's at the core of their freedom of religion," she says.

Lawyers have their uses

Marion Boyd, the former Ontario solicitor-general who oversaw the recognition of Islamic binding arbitration in Ontario law under Bob Rae's NDP government, is set to come out with a widely anticipated report on the experience. It's a document that could prove influential for the future of Muslim law in Canada.

Fournier, for one, already has a few criticisms of the Ontario set-up. She says that only a narrow spectrum of Muslims were consulted at the outset, as authorities snubbed the input of the Canadian Council of Muslim Women in favour of the Islamic Institute of Civil Justice, which Fournier counts as "29 men and one woman."

Nor are Ontario's Muslim arbitrators necessarily well-versed in Canadian law, and participants might not always know their rights under it. "I think there should be independent legal advice as a condition for the enforceability of arbitration awards," she says.

She also wants more participation of trained lawyers in the system and believes that the decisions and rulings should be open to public scrutiny, which, in Ontario, they currently are not. "When a party goes to regular court to ask to execute an imam's decision, all we see is a record of the award," she says. "It doesn't include the details of a decision by the arbitration."

Good for women

One local imam, Salam Elmenyawi, heads of the Muslim Council of Montreal and says his group has been conducting a "quiet diplomacy" with Quebec's Justice Department to allow for and recognize binding Islamic arbitration.

He readily agrees with Fournier's suggestion that lawyers be made available to those in a binding arbitration. He cites Muslim women as the main potential benefactor of such a system.

For example, Elmenyawi is currently conducting a religious mediation between a recently married 18-year-old Muslim woman in Montreal and her husband, who has refused her a divorce. She could get a divorce in civil court but would then be unable to remarry as a Muslim. Elmenyawi says that, given the chance to act as arbitrator, "I'd grant the divorce immediately."

Mediating such conflicts without the power to make a binding ruling makes for "a much longer process that can be energy consuming," he says. "In some cases these people are even mentally disturbed."

He also hints that sharia would be less forgiving of deadbeat spouses who can currently get away with quitting their jobs and working under the table to avoid family support payments.

Elmenyawi also vaunts the system as being much cheaper than the legal system, as lawyers would be permitted, but not required. "The fee would not be anything like the thousands that's spent in court actions, a procedure that often ends up leaving both sides ruined," he says.