For some time now, Canada has experienced immigrant and refugee movements from countries in which FGM is commonly practised. In Toronto, community groups have estimated that there are 70,000 immigrants and refugees from Somalia and 10,000 from Nigeria, countries in which FGM is commonly practised.[22] As already noted, because of the nature of FGM, reliable statistics on the incidence of its practice are not available. However, based on discussions with members of the communities that are at risk, there is some evidence to indicate that FGM is practised in Ontario and across Canada. There is also evidence that suggests that in some cases, families from those communities send their daughters out of Canada to have the operation performed.[23]
There is a growing recognition of FGM as a violation of human rights. Immigrant and refugee movements, governments and advocacy organizations in Canada have acknowledged the need to deal with FGM as an internationally recognized health and human rights concern.
4.1 Domestic implications of international human rights law
Canada is a signatory to over 20 major international conventions and treaties. A significant number of these are based on fundamental human rights principles. Canada's commitment to the development and maintenance of fundamental human rights in the international community and in Canada is therefore a matter of law. Domestic or national courts are required to interpret implementing legislation in conformity with international convention insofar as the domestic legislation permits.[24] In Canada, like other common law countries, the presumption that the State does not intend to breach its international obligations also applies to conventional law. States should implement international laws where there is no obvious inconsistency between the domestic law and the international law.
Canada's treaty obligations under international instruments can bind the domestic courts if:
(1) international law is specifically incorporated in domestic legislation or is incorporated by necessary implication, and (2) where such legislation is itself enacted by the legislature with jurisdiction over the subject matter of the treaty.[25]
In 1976, Canada and the provinces acceded to the International Covenant on Civil and Political Rights. It has been argued that this and other instruments to which Canada is a party are incorporated into Canadian law by implication through the Canadian Charter of Rights and Freedoms (the Charter).[26] The Charter is described as implementing legislation that is supremely authoritative and binding on all Canadian tribunals and institutions, with governing phrases that are derived from the principles and instruments of the international legal system.[27]
In 1983, Chief Justice Dickson, in his dissenting opinion in Reference Re Public Service Employee Relations Act, [1987] 1 S.C.R. 313 at pages 348 – 50, positioned the role of international law in Charter litigation in the following way.
... Canada is a party to a number of international human rights Conventions which contain provisions similar or identical to those in the Charter. Canada has thus obliged itself internationally to ensure within its borders the protection of certain fundamental rights and freedoms which are also contained in the Charter. The general principles of constitutional interpretation require that these international obligations be a relevant and persuasive factor in Charter interpretations.
Chief Justice Dickson reaffirmed this position in a majority decision in Slaight Communications Inc. v. Davidson [1989] 1 S.C.R. at page 1041, in which he reiterated the importance of Canada upholding its obligations under international treaties to protect rights enshrined therein. He noted that where legislation is interpreted with the same status as an international instrument, either under customary international law or under a treaty to which Canada is a State Party, the objective of the legislation should generally be indicative of a high degree of importance attached to the right at international law.
Because FGM is gender-specific discrimination, internationally condemned and proscribed in international instruments to which Canada is a party, the Province of Ontario would be in compliance with its obligations by taking steps to eradicate this practice. Any such initiatives taken by the Government of Ontario would be reflected in reports to international bodies in compliance with international conventions to which Canada is a signatory.
4.2 Criminal law
The Criminal Code of Canada continues to be used as a means to address the issue of FGM. For example, it can be used to control the transportation of female children outside the country for the purposes of obtaining FGM.[28] Canada has recognized fear of gender persecution as a ground for claiming refugee status since the early 1990s. In May 1994, the Immigration and Refugee Board granted refugee status to a woman whose 10-year-old daughter would have been subjected to FGM if she had been forced to return to her country of origin.[29]
As a result of the growing recognition of FGM as a violation of human rights, in October 1994, the then Ministry of the Solicitor General and Correctional Services[30] issued a memorandum to all Chiefs of Police and the Commissioner of the Ontario Provincial Police, explaining that FGM is a criminal offence, and informing them of the investigative and charging procedures for offences related to FGM. The Ministry of the Attorney General also sent a memorandum to all Crown Attorneys on the prosecution of charges related to FGM.
In May 1997, the federal government amended the Criminal Code and included the performance of FGM as aggravated assault under section 268(3).[31] Under the Criminal Code, any person who commits an aggravated assault is guilty of an indictable offence and is liable to imprisonment for a term not exceeding 14 years.[32] A parent who performs FGM on their child may be charged with aggravated assault. Where the parent does not commit the act but agrees to have it performed by another party, the parent can be convicted as a party to the offence under section 21(1) of the Criminal Code.[33]
4.3 The Quebec Charter of Human Rights and Freedoms[34]
In December 1994, the Quebec Commission released a paper in which it states that it considers FGM to be a practice that jeopardizes "the right of women to personal inviolability, equality and non-discrimination."[35] The Quebec Charter sets out that the obligation of each person is to respect the rights of others and “any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom."[36]
The report goes on to note that:
This type of (genital) mutilation is performed exclusively on women, and is unquestionably a discriminatory interference with their physical and mental inviolability. The Commission des droits de la personne would therefore have competence to investigate complaints of sexual mutilation and, with the consent of the victim, to take legal action for discriminatory violation of personal inviolability with a view to obtaining civil redress and having the person found guilty condemned to exemplary damages. [37] [Emphasis added]
The Quebec Commission took the position that it has the jurisdiction to investigate a complaint filed by a woman who has been subjected to FGM, and to institute both civil and criminal proceedings where investigation findings support the allegation that a woman's right has been violated as a result of FGM. The report concludes by indicating that preventative measures, via education and awareness-raising, must be given priority.
4.4 Ontario
4.4.1 FGM Prevention Task Force
In the early 1990s, an increasing number of women who had been subjected to FGM began seeking medical assistance.[38] The Canadian Centre for Victims of Torture, working with women from at-risk communities, family physicians and the Department of Health established the first mutual support outreach group for women who had been subjected to FGM. Since then, a number of other initiatives have been developed.
As there were no co-ordinated efforts between various professionals and institutions, and no consistent policy in Canada regarding FGM, members of affected communities requested that the Minister Responsible for Women's Issues establish an Ontario FGM Prevention Task Force. The Task Force, an inter-ministerial/agency/community initiative, was mandated to develop and recommend strategies and policies designed to provide support for girls and women who have been subjected to FGM, to prevent the practice, and to support community work by, and for women affected by genital mutilation.[39]
4.4.2 FGM and the duty to report
In Ontario, a duty to report FGM exists under the policy of the College of Physicians and Surgeons of Ontario (CPSO) and under the Child and Family Services Act.
Under the CPSO policy, the performance of female circumcision, excision, infibulation and/or reinfibulation by a physician licensed in Ontario, unless medically indicated, would be regarded as professional misconduct.[40] The CPSO also requires that:
Any physician who becomes aware of a procedure of this nature being performed by another physician should, in accordance with the Code of Ethics, bring this information to the attention of the College at the earliest opportunity. Since the performance of circumcision, excision and/or infibulation on any female child by any person may constitute child abuse, the Children's Aid Society and appropriate police agencies must be notified.[41]
Under Ontario’s Child and Family Services Act,[42] there is a duty to report information with respect to a child who is in need of protection. This duty exists despite the provisions of any other Act. If a person has reasonable grounds to suspect that a child is or may be in need of protection, (e.g., from physical harm such as FGM), the person is obliged to report the suspicion to appropriate authorities. The duty to report under this Act applies to all members of the public and those who perform professional or official duties with respect to children.[43]
[22] Omayma Gutbi, Preliminary Report on Female Genital Mutilation (FGM) (Ontario Violence Against Women Prevention Section of the Ontario Women's Directorate, 10 April 1995) [unpublished].
[23] Ibid. at 8.
[24] Op. cit. note 1, General Approaches to Domestic Application of International Law, Cook, ed., at 364.
[25] Maxwell Cohen and Ann F. Bayefsky, "The Canadian Charter of Rights and Freedoms and Public International Law" (1983) 61 Canadian Bar Review 265 at 288.
[26] Ibid. at 267. Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c.11 [1985, Appendix II, No. 44].
[27] Ibid.
[28]Section 273, Criminal Code, R.S.C. 1985, c. C-46, as am. S.C. 1993, c. 45, s. 3, as am. S.C. 1997, c. 18, s. 13.
[29] Minister of Employment and Immigration v. Farah (I.R.B. Toronto, Doc. 93-2198, May 10, 1994).
[30] In June 1999, the Ministry of the Solicitor General and Correctional Services was divided to form two ministries: the Ministry of the Solicitor General and the Ministry of Correctional Services.
[31] Criminal Code, R.S.C.1985, c. C-46, s.268, as am. S.C. 1997, c.16, s. 5:
“(3) For greater certainty, in this section, "wounds" or "maims" includes to excise, infibulate or mutilate, in whole or in part, the labia majora, labia minora or clitoris of a person, except where (a) surgical procedure is performed, by a person duly qualified by provincial law to practise medicine, for the benefit of the physical health of the person or for the purpose of that person having normal reproductive functions or normal sexual appearance or function; or (b) the person is at least eighteen years of age and there is no resulting bodily harm.
[32] Ibid. s.268 (2).
[33] Ibid. s.21.
[34] R.S.Q., c. C-12. In Quebec, no social area is required to file a complaint. The Quebec Charter protects fundamental rights, political rights and judicial rights. FGM would be framed as a complaint under "the right to integrity" under fundamental rights. Note that under section 136 of the Quebec Charter, civil and criminal proceedings may be instituted by the Commission against any person who contravenes the Quebec Charter. To date, no complaints based on FGM have been filed.
[35] Maurice Drapeau and Hailou Wolde-Giorghis, Sexual Mutilation: Unlawful Interference with Personal Inviolability (The Quebec Commission des droits de la personne, December 21, 1994). Adopted in resolution COM-388-6.1.5. The Quebec Charter of Human Rights and Freedoms, section 1, "Every human being has a right to life, and to personal security, inviolability and freedom."
[36] Ibid.
[37] Supra, note 34 at 6.
[38] Female Genital Mutilation Prevention/Eradication Strategies, Draft Paper (Ontario FGM Prevention Task Force for Ontario Women's Directorate, Violence Against Women Prevention Unit, June 1995) at 4.
[39] Ibid.
[40] The Regulated Health Professions Act, 1991, S.O. 1991, c.18. s. 85, as am. S.O.1993, c. 37, s. 23.
[41] The College of Physicians and Surgeons of Ontario, College Notice No.25 published in March 1992.
[42] The Child and Family Services Act, R.S.O. 1990, c. C.11. s. 72, as am. S.O. 1999, c. 2, ss. 22 (1), 38.
[43] The Ontario Association of Children's Aid Societies has a policy that supports the duty to report and the protection of the rights of children. In March 1992, the Ontario Association of Children's Aid Societies issued the following statement on FGM: ”The performance of female circumcision, excision or infibulation on a child meets the definition of child abuse in the Child and Family Services Act of 1984.”