Religious Legal Systems in Canada

Little known, often misunderstood

Religious Legal Systems in Canada

Most people have heard of religious-based legal systems, but few understand them.

Sharia, or “Islamic law,” is derived from commands in the basic texts of Islam, the Quran and Hadith. The name derives from an archaic Arabic word denoting “pathway to be followed.”

“Halakhah,” or “Jewish law,” similarly means “the path that one walks” or “path to the water hole.” The etymology is from the path to water that permeates life in a desert.

Canon law is the internal body of laws and regulations of the Roman Catholic, Orthodox and Anglican churches. The manner in which it is legislated, interpreted and adjudicated varies widely amongst each. In all three, a “canon” is adopted by church council, the word coming from the Greek “kanon” and Hebrew “kaneh” – rule, standard or measure.

Canon law differs from sharia and halakhah as it is a codification akin to civil law, while sharia and halakhah derive most of their laws from juristic precedent and reasoning by analogy, akin to common law. Unlike secular laws that govern public interactions, all are a personal code of living that adherents adopt as part of their faith. Further, these religious bodies all have courts or arbitration systems that adjudicate disputes using those laws. This differs from other religions or branches
of religions that may have rules or laws, but no adjudication system.

All function largely in private, although family law issues sometimes make news.

Halakhah provides that only the husband may issue a bill of divorce (a “get”), with consequences that have made high profile cases.1

Similarly, use of sharia mediation and arbitration panels applying sharia in the family law disputes has been controversial, being banned in Ontario and Quebec. Sharia and its mediation/arbitration system has a significant role in commercial law. Sharia compliant banking prohibits acceptance of interest or fees (known as “riba,” or usury) for loans. Instead, methods of profit-sharing are used. As of 2014, sharia compliant financial institutions represented approximately 1% of total world assets. Their often complex and costly disputes are handled, reportedly with great success, by arbitration using sharia law.

Meanwhile Ecclesiastical courts applying canon law continue quietly, as they have done for centuries. The North American Catholic Church handles roughly 30,000 cases a year involving marriage annulments, divorce, ex-communication and priestly misconduct. The latter is one area where the jurisdiction of ecclesiastical courts periodically intersects with that of the civil system, when priests seek redress for wrongful dismissal.

Cases in several provinces have considered the legal relationship of priest and church and whether the priest can turn to the civil courts. In one notable Ontario case, the Archdiocese’s position was that its relationship with the priest was ecclesiastical and governed by canon law, so that the priest was required to seek redress through the internal review process provided by canon law rather than the courts. The Ontario Court of Appeal agreed, saying, “Canon law creates the office, provides for the office’s duties and responsibilities, and describes the circumstances under which the office can be brought to an end.” The priest and church entered a contract to be bound by that law. The court said, “The Roman Catholic Church is a self-governing organization. Its canon law provides an internal review process for ecclesiastical disputes.”2 Consequently, if an ecclesiastical court or internal arbitration process is in place to deal with these disputes, the civil courts are generally without jurisdiction.

  1. Bruker v. Marcovitz, [2007] 3 S.C.R. 607, 2007 SCC 54 upheld a right of the wife to claim damages in civil court when the husband refused her a Jewish divorce despite agreement. 
  2. Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston, in Canada, 2011 ONCA 728 

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