Canada: Plural Worlds, One Law, and the Door That Opens Only Outward

Most states containing plural moral worlds arrived there without deciding to. People came, brought what they had, and the law adjusted case by case without announcing a position. Canada announced one: a federal policy in 1971, a clause in the Charter in 1982, an Act of Parliament in 1988. Being first to legislate it meant being first to discover what it cost, and who paid.

The cost showed up where it always does: not in language policy or food or holidays, but in family life, where a community’s rules are strictest, where they bear hardest on women, and where a liberal state is least willing to go. The question such a state must eventually answer is not whether to respect a community, but what it owes a particular woman inside a community whose rules it has otherwise decided to leave alone.

It had written the position down. Section 27 of the Charter instructs that the Charter be read consistently with the preservation and enhancement of the multicultural heritage of Canadians, and the Canadian Multiculturalism Act of 1988 committed the government, at paragraph 3(1)(e), to ensuring that all individuals receive equal treatment and equal protection under the law while respecting and valuing their diversity. The tension this essay is about sits inside that sentence: equal protection, and diversity, joined by a while. But the Act decides nothing. It is declaratory, so the hard cases went where hard cases go, to provincial legislatures and courts, one at a time and in the open. That is why the record is legible.

This essay follows four places where Canadian law had to answer that aloud: an argument in Ontario about settling family disputes under religious law, a husband who would not give his wife a religious divorce, a woman who wished to testify against her alleged abusers with her face covered, and a constitutional reference on polygamy. Its argument runs against the flattering reading of that record. Official pluralism can leave the women inside the most restrictive communities with the least practical recourse, precisely because the state declines to intervene — and the reason is not hypocrisy. A right has a content and a price, and the state, having correctly refused to touch the community, has left the price where it was.

Ontario’s Arbitration Act of 1991 let parties agree to have a private arbitrator decide a dispute, including a family dispute, under a body of rules that was not Ontario law. Jewish rabbinical courts had used it quietly for years, and nobody thought it remarkable. In 2003 a Muslim lawyer named Syed Mumtaz Ali announced an institute that would settle family disputes according to Islamic principles under that same Act, and the country discovered the provision it had been living with. The government asked Marion Boyd, a former Attorney General of Ontario who had also been the minister responsible for women’s issues, to review the framework. Her report of December 2004, Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion, recommended that faith-based family arbitration continue subject to safeguards: independent legal advice, written agreements stating which rules applied, screening for power imbalance, court review where children were involved.

The government declined. In September 2005 the Premier announced that there would be no religious arbitration in Ontario and one law for all Ontarians. The Family Statute Law Amendment Act, 2006 received Royal Assent in February 2006. It confined family arbitration to processes conducted exclusively under Ontario or Canadian law, and provided that other third-party decision-making in family matters has no legal effect. The rabbinical tribunals lost their standing along with everyone else.

Notice what that did and did not do. It did not stop a rabbinical court or an Islamic institute from issuing a decision; nothing could, and nothing should try. What it removed was enforceability. A woman who received an unfavourable ruling could no longer have it enforced against her by a court — nor a favourable one enforced for her. The ruling still existed, still carried the weight of everyone she knew, and could now be resisted only by a woman willing to go to court against her own community. The law had moved the decision out of the courthouse. It had not moved it out of the living room.

The Ontario argument is often retold as a rescue: secular Canada protected Muslim women from a tribunal they had not asked for. That requires ignoring that the loudest voices on every side were women, many of them Muslim, who disagreed with each other in public and at length.

Homa Arjomand, an Iranian-born activist, coordinated an International Campaign Against Shari’a Court in Canada, gathered thousands of signatures and organised demonstrations in several countries. The Canadian Council of Muslim Women, led then by Alia Hogben, opposed faith-based family arbitration on the ground that the women likeliest to be steered into it would be the least able to contest its norms. Against them stood people who argued the campaign was doing something other than what it said. Natasha Bakht, a law professor who had herself argued against faith-based arbitration in 2005, later criticised the campaign that won: it gave no weight to religious women who wished to live a faith-based life, and a feminism endorsing an exclusively state-run apparatus failed to reckon with legitimate suspicion of a state that had spent the years after 2001 stigmatising people of colour. The sociologist Anna Korteweg, studying three newspapers, found two pictures of Muslim women’s agency in the coverage — agency as the capacity to resist domination, tied to secularisation, and agency exercised from inside intersecting structures of domination and subordination — and argued that the first homogenised diverse communities and contributed to their racialisation.

This essay takes no side and records the quarrel for a reason. An argument in which the women concerned are on both sides cannot be settled by deciding what women need, only by asking what each arrangement costs a particular woman who wants out of something.

In Jewish religious law a divorce is effected by a document, the get, which the husband delivers and the wife receives. A woman civilly divorced but without one remains, to her religious community, married. The asymmetry is total — he can withhold, she can only wait — and the word for her condition translates as chained. Canada legislated in 1990, and the design is instructive. Section 21.1 of the Divorce Act orders nobody to grant a religious divorce, which a secular state cannot properly do. It permits a court to strike out the pleadings of a spouse who will not remove barriers to the other’s religious remarriage, so that he loses the right to be heard on support, property and the children. The state does not enter the religion. It withdraws a civil advantage.

The case that reached the Supreme Court took another route. Stephanie Bruker and Jason Marcovitz divorced civilly in Quebec in 1980, when she was thirty-one, having agreed in their settlement to appear before the rabbinical authorities immediately for the get. He gave it in 1995, when she was forty-six. The trial court awarded her 47,500 dollars: 2,500 for each of the fifteen years, and 10,000 for the children she had not been able to have. The Court of Appeal set it aside as a religious matter beyond a civil court. In 2007 the Supreme Court of Canada restored it, seven judges to two, per Abella J.: the undertaking sat inside a valid civil contract, its religious subject matter did not put it beyond the law, and the harm to his religious freedom in paying damages was outweighed by the harm his refusal had done. Deschamps J., with Charron J., dissented — the object was purely religious and a civil court had no standing to price it.

Read as a victory it is a good one: the court decided nothing about what Jewish law required and ordered no religious act. It priced a broken promise. Read against this essay’s question it says something bleaker. The remedy existed the whole time. Getting it took fifteen years, a trial, an appeal and a hearing before the highest court in the country, and it arrived when she was forty-six. The right had a price, and she paid it in the one currency that is never refunded.

The second case compresses the whole mechanism into an afternoon. A woman known in the reports as N.S. alleged that she had been sexually assaulted repeatedly as a child by her uncle and her cousin. At the preliminary inquiry in 2008 she asked to testify wearing her niqab, which she said her faith required in the presence of men outside her family. The accused asked that she be made to remove it so her face could be seen under cross-examination. The judge so ordered.

In December 2012 the Supreme Court declined to lay down a rule either way. Writing for the court, McLachlin C.J. set out a four-part inquiry: sincerity of belief, serious risk to trial fairness, reasonable alternatives, and whether the benefits of requiring removal outweigh the harms. LeBel and Rothstein JJ. would have adopted a clear rule against testifying with the face covered. Abella J. dissented the other way and made the point this essay is built on: requiring removal would not produce better evidence from these women, it would produce no evidence from some of them, because a complainant made to choose between her practice and the courtroom will in some number of cases not come. The burden falls on precisely the women the criminal law exists to serve.

In April 2013, on remand, the preliminary inquiry judge applied the framework and concluded that he was obliged to require her to remove the niqab in order to testify. Whatever one thinks of the balance struck, the shape is unmistakable. The law was open to her. To walk through the door she had to do, in front of the two men she was accusing, the thing her practice forbade — and the community whose rule she would have been breaking was, in part, the one that contained them. That is not an argument that she should have been allowed to keep it on, or that she should not. It is an observation about price. Nobody was denying her a remedy; the remedy cost her something the law could not see.

The third case is where the state did intervene, as hard as a state can. Section 293 of the Criminal Code has prohibited polygamy since the nineteenth century and had been effectively unused. After prosecutions of two leaders of the Bountiful community in British Columbia collapsed, the province referred the section’s constitutionality to its own Supreme Court, and in November 2011 Bauman C.J. answered. The prohibition does limit freedom of religion, he held, but is justified in a free and democratic society, because the case is about harm: Parliament’s reasoned apprehension of harm to women, to children and to society. He read it down only so far as it would expose to prosecution the children married into such unions.

The evidence is what matters here. Women who had left polygamous communities described what they had left. Women who had not left testified too, anonymously, by video, faces hidden — all from one faction of a community split in two. Plural marriage, they said, had been a good and vital part of their faith, and nobody was forced. One, in her forties and the mother of nine, said she had no regrets about becoming a plural wife at sixteen and called her husband a lifelong friend who had supported her education. Another, twenty-four and one of four wives, described learning thirty minutes before her wedding, at seventeen, who her husband would be. Both are in the same record. Field research published in 2009 by the legal scholar Angela Campbell, conducted with women in Bountiful, reported the same refusal of the available scripts.

Then the ending. In July 2017 Winston Blackmore and James Oler were convicted of polygamy, the first such convictions in Canada in more than a century; Blackmore was found to have been married to twenty-five women. In June 2018 he was sentenced to six months of house arrest, Oler to three. House arrest is served at home, and home here was Bountiful. A constitutional question had been settled at enormous public expense on the express ground of harm to women, and what it delivered to the women of Bountiful was a man required to remain in the community for six months. That is not a criticism of the sentencing judge, applying ordinary principles to first convictions. The law was vindicated; the distance between that vindication and anything a woman there could use remained what it had been.

A right is not one thing. It has a content and a price, and the two are independent. The content is what it entitles you to. The price is everything you must spend to reach it: time, money, a lawyer, a language, and — the item that never appears in any assessment of access to justice — the people you will lose by using it. For a woman whose whole world sits inside one community, that last item is not a line in the budget. It is the budget: her housing, her childcare, her employment references, her mother, the people who would come to her funeral. The state offers her a remedy whose price, correctly calculated, is everyone she has. Recourse that requires leaving your community in order to use it is not recourse. It is an exit with a legal formality attached.

Official pluralism sharpens this rather than softening it, and this is the part that is hard to say without being misheard. The state’s restraint is principled and mostly correct: a liberal state that begins adjudicating the internal norms of religious communities will do more harm than good, and to the communities with the least political protection first. But the more scrupulously it declines to touch a community’s internal life, the more completely the only remedy on offer removes you from it. A woman who wants her husband to behave differently is handed a mechanism for ceasing to have a husband. Pluralism, honestly practised, produces remedies of exactly one shape.

Two things this is not. It is not an argument that minority communities are the problem: the mechanism has nothing to do with minority status, migration, or the content of anyone’s beliefs. It runs wherever the cost of using the law is exile, which includes majority communities constantly — the woman in the single-employer town whose complaint would end her husband’s work as well as her own, the woman in the family firm. The variable is not doctrine but whether a person can use the law and still have a life the following week.

Nor is it an argument for the state to go in. Quebec adopted in 2019 a law on the laicity of the State forbidding some public employees, including schoolteachers, to wear religious symbols at work; shielded by the notwithstanding clause, it was upheld by the Quebec Court of Appeal in February 2024 and is before the Supreme Court of Canada. A central argument against it, advanced in the litigation and not settled here, is that its practical weight falls on Muslim women — the very same women. The Bouchard-Taylor commission had reported in 2008 that collective life in Quebec was not in a critical situation over accommodation. The law came anyway. A state that leaves these women alone and a state that regulates them can send the same bill to the same address. What is left, once both exits are refused, is narrower and truer: the work is on the price, not the principle. Legal aid, interpretation, advice paid for by somebody who is not your husband, a shelter that will not contact your family, a job obtainable without a reference from your community — each is worth more to the woman in question than another decade of argument about whether pluralism is good.

Japan is often described as having little of this question: one legal system, one broadly shared set of customs, no religious minority with a distinct family law seeking recognition. This chamber treats that as a claim to test, and the test does not take long.

At the end of 2024 there were 3,768,977 foreign residents in Japan, up 10.5 per cent in a single year and a third consecutive record; a little under half, about 1.86 million, were women. For a woman holding the residence status of spouse of a Japanese national, the Immigration Control and Refugee Recognition Act permits that status to be revoked where she has, without justifiable reason, spent six months or more not carrying on activities as a spouse. The Immigration Services Agency’s guidance treats pending divorce proceedings and domestic violence as justifiable reasons, a real protection. Look at the structure anyway. Her right to remain is attached to the household she may need to leave, and using the protection requires satisfying an official that her reason was good enough. No religion, no minority community, the same mechanism.

The majority case matters more and is stranger. Roughly 87.5 per cent of divorces in Japan in 2023 were settled by agreement and registered at a municipal counter: no court, no lawyer, no review of what was agreed. Ontario spent three years and a statute deciding that family matters must not be resolved in a private forum applying rules the state does not supervise; Japan resolves close to seven in eight of them in a forum with no rules at all, on the terms of whoever holds more leverage in the household. The 2021 survey of single-parent households found 46.7 per cent of mothers had any agreement about child support and 28.1 per cent were receiving it. Family court mediation exists, and for most family matters must be attempted before litigation. The right is there. The price is the thing.

Religion is not absent either. After 2022 the adult children of members of the former Unification Church described, in their own words, households ordered around donations and rules about marriage and money the law outside the front door had no obvious purchase on. A statute on improper solicitation of donations followed in December 2022, and in March 2025 the Tokyo District Court ordered the religious corporation dissolved, the first such order grounded in civil rather than criminal wrongdoing. The state moved after decades, and after an assassination.

Then the ordinary case, which is the reason this essay exists. A woman marries into a family with strong expectations: who provides care and when, which observances she attends, whose parents are visited at New Year, how a wife speaks in front of her husband’s mother. Nothing in it is religious; there is no arbitration clause, no tribunal, no doctrine. There is a set of rules she lives under and a different set she can reach, and the distance is measured in what she would lose by crossing it — her husband’s family, possibly her husband, possibly the version of herself everyone she knows has agreed to see. The Canadian record shows her nothing exotic; it shows the same structure with the labels removed. This chamber found, in its essay on passports, boundaries and who actually gets to be free of them, that a boundary dissolves for the person passing through and stays where it was for the person who lives there; the Canadian cases say the same of rights. And in asking what religion was actually doing and what replaced it, it found that a receding religious order’s functions are reassigned, usually to the family. Canada is where a state tried to name those functions aloud and decide which it would take back. The recurring finding of this chamber, which Canada states more clearly than any other country in it, is the distance between a right and the cost of using it.

This house sells evenings whose terms are fixed before anything begins. What is wanted and what is not is written down, a word is agreed that ends the evening without explanation, and the person providing it is bound and has no standing to reinterpret it. In this essay’s vocabulary, the house sells a right with the price removed: a woman can end the evening with one sentence, and ending it costs her nothing, because nothing she has was put inside the room.

The uncomfortable half goes first: the house profits from the scarcity of that arrangement everywhere else. A woman who has learned that a plain sentence is expensive is a woman for whom a room where it is free has an obvious value, and the value comes from the shortage. If the ordinary rooms of a woman’s life were cheap to leave, this product would be worth considerably less. That is not a reason to stop selling it, only a reason not to dress it up as a service to anybody’s liberation.

What follows is a list of things the house may not claim. A purchased exit in one room is not recourse in a marriage, a family, a congregation or a company. Nothing here teaches a woman how to lower the price of a right in a household with no interest in lowering it. Nothing here is a position on multiculturalism, secularism or religious freedom in any country, and nothing here is a view about any named community, its members, or the people who have left it. What one evening can honestly offer is a single experience of a right that costs nothing to use — of finding, once, that the sentence was free the whole time.

It does not claim to have counted anything. The account of Ontario is an account of a public argument and a statute, not of how many people used religious forums before the change or after it. Nobody knows that figure, because decisions carrying no legal effect leave no register — itself part of the problem described here. Nor does it claim that Ontario decided rightly or wrongly: Boyd’s safeguards might have worked, and might have been unenforceable in exactly the households that needed them. The claim is narrower. Ending enforceability moved the cost of a religious ruling rather than removing it, onto the woman who wanted to resist one.

It does not claim that the four cases describe Canadian Muslims, Canadian Jews, or the people of Bountiful. They describe four disputes decided on their own facts. No individual stands for a community, and no community is fairly represented by its hardest case. The anonymous testimony in the polygamy reference is reported as given, cannot be tested here, and came from one side of a divided community, so it stands for the existence of such accounts, not their frequency.

It does not claim that the mechanism is a feature of minority or immigrant communities. It claims the opposite, explicitly and more than once: the mechanism is about the cost of using the law, it operates in majority communities constantly, and a reader who finishes with a sharpened suspicion of religious minorities has read it backwards. Nor does it claim that Japan and Canada are equivalent. The Japanese arrangements described here are not religious and not the product of any pluralism policy. What is claimed is structural similarity: in both places there are people for whom the rules they live under and the law they can reach are different things.

It does not claim that any scholar, activist, judge or witness named here endorses this reading; their positions are described as stated publicly, and the argument built on them belongs to this Library. It claims no insider standing in either society. And it does not claim that naming a price is the same as lowering one, which is the honest limit of an essay.