Does sharia apply in Canada?

No, in the sense the question is usually asked: no court, tribunal or religious council in Canada has jurisdiction to apply Islamic law, Canada has one law of general application, and a decision taken under religious law has no legal effect of its own. Yes, in a sense that matters just as much to the person asking it about their own life: Islamic law binds a Canadian Muslim as personal religious obligation, and it takes civil effect the way anybody's private arrangements do — through a validly executed will, a marriage contract, a domestic contract, a beneficiary designation. Both halves are set out below, each with the statute or the case it rests on.

What Islamic law says

Start with what is being asked about. Sharia names the whole of the divine guidance — the path. Fiqh is the human jurisprudence: what qualified jurists have understood that guidance to require, worked out by a defined method and recorded in the four Sunni schools among others. The distinction is set out properly on the foundations page of this section, and it matters here because most of what the question is aimed at is not a body of enforceable rules at all.

The classical jurists divided fiqh into two halves. The 'ibadat are the acts of worship — prayer, fasting, zakat, hajj — addressed to the individual before God, requiring no state, no court and nobody's permission. The mu'amalat are dealings between people: contracts, marriage, inheritance, what may be eaten and earned. The bulk of that half, too, is addressed to the conscience of the person doing the transacting rather than to any enforcing authority.

A defined minority of the law does presuppose a constituted authority. The fixed criminal penalties, the office of the judge, and the state's levying and distribution of zakat are treated in classical fiqh as functions of a legitimate public authority — not as things a private person or a private body may take up. That is a limit the tradition sets on itself, not one imposed on it from outside, and it is the reason a mosque or an organisation cannot, on its own account, be a court.

On the matters this site exists for, the obligation is personal and specific. The fixed shares are set out in Surah an-Nisa 4:11, 4:12 and 4:176. The discretionary bequest is capped at one third by the hadith of Sa'd ibn Abi Waqqas, who wished to leave two thirds of his property and was limited to a third, with the addition that a third is a lot (Sahih al-Bukhari, Book of Wills; Sahih Muslim, Book of Wills). Funeral costs and debts, including any unpaid mahr, come out before either. None of that requires a court to bind a Muslim. It binds because it is what the person believes is owed.

And keeping faith with the law of the place you live is inside the guidance rather than an exception carved out of it. Surah al-Ma'idah 5:1 opens with the command to fulfil your contracts, and the classical jurists treated the security a Muslim enjoys in a territory not governed by Islamic law as itself a compact that must be honoured.

Where the schools differ

On the question this page asks — whether a Muslim living under a non-Muslim legal system remains bound by Islamic obligation — the four Sunni schools answer alike. The obligations of worship and of personal dealing travel with the person, and all four treat the judicial and penal parts of the law as belonging to a constituted authority rather than to individuals or private associations. Where the schools agree, this site says so plainly; agreement is information too.

The differences that do exist are downstream of that, in particular fields, and they are dealt with on the pages that carry those fields: the conditions of a valid nikah and the grounds for a judicial dissolution on the marriage and family page, the treatment of interest-bearing finance on the money page, the fixed shares on the four madhahib page.

The Canadian legal position

Canada has one law of general application, and it is divided between two legislatures rather than between communities. Under the Constitution Act, 1867 the provinces legislate on property and civil rights — section 92(13), which is where wills, contracts, family property and estates live — while Parliament legislates on marriage and divorce under section 91(26) and on criminal law under section 91(27). There is no third head of power for religious law and there never has been. Personal law by religious community, the system several countries do operate, has no Canadian counterpart.

No statute confers judicial power on any religious body in Canada, and none ever has. A mosque council, a fatwa committee or a fiqh panel is, in law, a voluntary association: people may join it, submit to it and be guided by it, and none of that makes its determinations enforceable against anybody. The Charter itself points the same way — section 32 makes it binding on government, not on private religious bodies, which are simply not part of the machinery of the state.

The courts approach the same boundary from their own side, and the distinction is worth getting right. In Highwood Congregation of Jehovah's Witnesses v. Wall the Supreme Court held that the internal decisions of a voluntary religious association are not subject to judicial review, and that a court will take up such a matter only where a separate legal right — in contract, property or statute — is engaged; there is no free-standing right to procedural fairness before a religious body. That is a rule about when civil courts will restrain themselves, not a rule stripping religious bodies of authority over their own adherents. Its practical effect for this page is precise: a religious council's ruling carries no legal force of its own, and a court will not be drawn into refereeing a dispute about it. If an ordinary legal right happens to be engaged, the court takes up that legal question — and only that one.

Ontario says the same thing in statutory terms for one field. Since 2006, where a decision on a matter that could be dealt with in a domestic contract is made in a process "not conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction", section 2.2(1) of the Arbitration Act, 1991 and section 59.2(1) of the Family Law Act each provide that the process is not a family arbitration and the decision "has no legal effect". The chronology of how that came about has its own page in this section.

What is protected is the practice, not the jurisdiction. Section 2(a) of the Canadian Charter of Rights and Freedoms guarantees freedom of conscience and religion, and in Syndicat Northcrest v. Amselem the Supreme Court held that a claimant needs to show a sincere belief having a nexus with religion — not that the practice is an objective requirement of the faith, because, as the Court put it, the state is in no position to be, nor should it become, the arbiter of religious dogma. Canadian law therefore protects a Muslim's observance while declining to rule on what Islam requires, and those two things go together: a court that will not define your religion for you is also a court that will not enforce someone else's definition of it against you. The Ontario provisions say as much in their own text: "Nothing in this section restricts a person's right to obtain advice from another person."

Religious content does get enforced in Canadian courts — as contract, and the law on that has moved. In 1998 an Ontario court in Kaddoura v. Hammoud declined to enforce a $30,000 deferred mahr, holding the obligation essentially religious and describing the exercise as entering the religious thicket, a place the courts cannot safely and should not go. In 2007 the Supreme Court took the opposite view of the threshold question in Bruker v. Marcovitz: that a dispute has a religious aspect does not of itself put it beyond the courts, and an obligation the parties chose to put into a civil agreement may be enforced as the contractual promise it is. In 2011 the Ontario Court of Appeal in Khanis v. Noormohamed upheld a deferred mahr as a valid domestic contract under Part IV of the Family Law Act — written, signed and witnessed as section 55(1) requires — and payable in addition to equalisation rather than set off against it. British Columbia courts had reached the same result earlier, in Amlani v. Hirani.

What decides those cases is not how Islamic the obligation was. It is whether the parties reduced it to an instrument Canadian law already recognises — in writing, signed, witnessed, and expressed in terms a judge can apply without ruling on a point of theology. The court is not applying Islamic law when it does this. It is applying contract law to a promise the parties chose to make.

Wills work the same way, and more freely. Testamentary freedom in Canada is broad: a will that sets out the fixed shares as express fractions is enforced because it is a validly executed will, not because it is Islamic, and the Ontario Court of Appeal in Spence v. BMO Trust Company held that the law does not justify intervention simply because a court may regard a testator's choices as distasteful, offensive, vengeful or small-minded. British Columbia is the standing exception. Section 60 of the Wills, Estates and Succession Act lets a spouse or child apply to vary a will, and in Grewal v. Litt wills leaving four daughters $150,000 each out of an estate of roughly $9 million — about 6.6 per cent between them — were varied to 15 per cent for each daughter and 20 per cent for each son. Note what that is and is not: the court did not equalise the shares, and each son still took more than each daughter. Quebec, a civil-law jurisdiction, is different again. The provincial pages set out which rules apply where you live.

The limits are real and they are short. Criminal law is the Criminal Code, and no contract, arbitration agreement or religious determination displaces any part of it — the prohibition on polygamy in section 293 was upheld as constitutional in the 2011 British Columbia reference, save as it applied to children between 12 and 17. No private instrument binds a court on the best interests of a child. Statutory obligations of support are not something the parties can contract away. And a religious divorce pronounced abroad is not a shortcut: a foreign divorce is recognised under section 22 of the Divorce Act where a spouse was habitually resident in that country for the year before the proceedings, and the Federal Court in Amin v. Canada declined to recognise a bare talaq pronounced without any court or state involvement. Even a foreign decree that clears section 22 can be refused recognition for fraud, a want of natural justice or reasons of public policy, as Kadri v. Kadri sets out.

Where they meet

State the mechanism once and the rest follows. You never ask a Canadian court to apply Islamic law. You use an ordinary Canadian instrument to record what you want, and Canadian law enforces the instrument. That is not a workaround and it is not a concession: it is what every Canadian does who wants an outcome the default rules would not produce. Someone who wants their estate to bypass their children writes a will. A couple who want their property kept separate sign a marriage contract. Private ordering is the ordinary machinery of a common-law system, and it is open to a Muslim on exactly the terms it is open to anybody.

The work of getting there splits cleanly between two people, and most of the failures come from asking one of them to do both jobs. A scholar of your school answers what the shares are for your family as it actually stands, and what your school holds on any point where the schools part. A lawyer in your province turns that answer into clauses that will survive probate, and tells you what your province does with them — which is not the same answer in British Columbia as in Ontario. This site does neither. It reports what the schools hold and what the statutes and cases say, with the source beside each, so that you arrive at both conversations knowing what to ask.

Four instruments carry almost the whole load.

1. The will. It must state the shares as express fractions, conditional on who survives — the calculator on this site produces them for a given family. Executed to your province's formal requirements, it is enforced like any other will.
2. The marriage contract. Mahr, and any agreement about property, belong in a written contract signed and witnessed, with each side taking independent legal advice. That is the difference between the cases where a mahr is enforced and the cases where it is not.
3. Beneficiary designations and how title is held. A registered account or an insurance policy with a named beneficiary, and a home held in joint tenancy, pass outside the estate — so they pass outside the shares, however well the will is drafted.
4. Guardianship and trusts for minors, so that a child's share is held rather than handed over at majority, and so that the person raising them is the person you chose.