Abstract
A number of key divergences between Islamic and Canadian legal regimes are generating a growing stream of refugees into Canada. There is every sign that this trend will grow as political forces on both sides map out their ideological position in law with greater precision. Recent years have seen the introduction into the normative legal system of many Islamic states' "Islamization" laws. In Canada, the refugee determination process has seen a correlating, but opposite, movement to recognize persecution in its more systemic guises. This paper will focus on those refugee claims from Islamic states which have been accepted on a ground that is related to either Islamic law or Islamic culture. The resulting set of cases illustrates a number of key distinctions between some Islamic regimes and Canadian law which are only litigated in the context of refugee claims. A picture thus emerges of the conflict between the refugee determination procedure in Canada, which embodies Western human rights discourse, and Islamic law, as expounded by Islamic resurgence movements in a number of states. Taking a broad view, it is clear that the differences between Islamic and Western legal cultures are not amenable to ready conciliation. It is also clear that the debates engendered by the issues highlighted in the refugee cases that follow continue to be live ones on both ends of the refugee track. The following study displays some of the shortcomings of a typically western mode of analyzing Islam according to its flaws, a habit which distorts the larger picture of Islam. This study should thus not be taken as a general illustration how Islamic governments function, but instead as an illustration of the most significant consequences of the policies of a number of Islamic governments in terms of Canadian refugee law. The discussion below groups cases where Islamic immigrants to Canada have been successful in obtaining refugee status around seven key issues: gender discrimination, differences between groups within Islam, Islamic justice, religious freedom, homosexuality, polygamy, and female genital mutilation.
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Recommended Citation
Olivier Fuldauer, "Granting Refuge from Islam: The Canadian Refugee Determination Process and the Casualties of Islamic Policies" (1996) 5 Dal J Leg Stud 271.