Describe in detail what has happened and why you think you have to go to court; give details of any steps you have already taken to resolve this case and how it has worked so far.
THE OFFENDING LEGISLATION
In 1997, the Parliament of Canada passed an amendment to the
Criminal Code of Canada expressly prohibiting all forms of female genital mutilation (FGM). Genital mutilation is recognized as a human rights violation under the provisions of treaties and conventions to which Canada is a state party. There have been no prosecutions for FGM in Canada prior to or after the introduction of this amendment.
The prohibition of FGM was added to section 268 of the Criminal Code, which deals with aggravated assault. This section now reads as follows:
268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
(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) 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.
(4) For the purposes of this section and section 265, no consent to the excision, infibulation or mutilation, in whole or in part, of the labia majora, labia minora or clitoris of a person is valid, except in the cases described in paragraphs (3)(a) and (b).
R.S., 1985, c. C-46, s. 268; 1997, c. 16, s. 5.
Section 268 now prohibits interference with genitalia for non-medical reasons, but only in the case of female genitalia. Male anatomy is not mentioned. The amendments are phrased in such a way that the new provisions of the Code apply only to females. This is clearly discrimination on the basis of sex and is expressly prohibited under the
Canadian Charter of Rights and Freedoms (Charter). Sections 15 and 28 of the Charter stipulate that laws are to apply equally to both sexes and that rights are guaranteed equally to both sexes.
Many individuals and groups have asked the minister of justice to investigate this matter and clarify the law. Even the government of Alberta agrees that "these issues would ultimately have to be resolved by the courts." So far, however, the minister has taken no action to remedy the situation. We believe that this failure is due to a form of systemic discrimination. To verify our belief, we have investigated the way circumcision is viewed by various authorities, both governmental and non-governmental.
The Ontario Human Rights Commission (OHRC) is one example of a government agency that has violated the equality provisions of the Charter when dealing with the issue of genital mutilation. Infant male circumcision clearly meets all the criteria set out by the OHRC as grounds for condemning FGM. Both FGM and MGM are motivated by the same irrational beliefs. But whereas the OHRC condemns FGM as a human rights violation, the OHRC is silent on male circumcision. It seems that surgical operations on the genitals of healthy children raise the eyebrows of human rights organizations and Canadian authorities only when the children in question are girls. The OHRC has protected females and summarily denied that same protection to males, even though protecting males from genital mutilation would not diminish in any way the protection enjoyed by females.
The OHRC recently updated the references to male circumcision in its policy on FGM to acknowledge that infant male circumcision is not medically required. Yet the OHRC refuses to acknowledge either (a) that circumcision of healthy boys raises important human rights issues, or (b) that it is discriminatory to protect the genital integrity of one sex while denying such protection to members of the opposite sex.
Systemic discrimination against males, at least with respect to the issue of genital integrity, is deeply embedded in our society. This pattern of discrimination is clearly evident in the extensive correspondence we have had with regulatory agencies, government departments, academic institutions, and organizations of medical professionals.
Section 268 of the Criminal Code is another example of systemic discrimination against males. It is a form of discrimination that the Government of Canada is unwilling to address despite the fact that rectification of this inherent injustice would in no way detract from the law's ability to protect women.