Court Challenges Program
Application for Funding
IMPORTANCE OF THIS CASE
Explain why this case is important to members of disadvantaged groups or official language minority groups; explain why it is a case which the Program should fund.
OUR CASE is important for a number of reasons:
- It seeks to uphold two of the most basic human rightsnamely, the right to security of the person and the right to equal benefit under the law.
- Circumcision is usually performed on the most vulnerable members of society: infants and children. They deserve the full protection of the Charter.
- The results of circumcision can be devastating. At least two Canadian boys who were perfectly normal at birth were "reassigned" as girls after their penises were completely destroyed in botched circumcisions. Other infants have died from serious complications.
- Newborn circumcision is viewed as an important issue by some of the organizations and public officials with whom we have corresponded. The B.C. Ministry of Health described it as an "important matter" (letter of August 14, 1998). The Manitoba Minister of Health characterized it as "sensitive, yet important" (July 6, 2000). The Children's Advocate for Alberta said the material we sent him was "most interesting and disturbing" (April 16, 1998). The Northern Alberta Coordinator for the Provincial Health Ethics Network wrote that the issue of newborn circumcision was "an important one and deserving of attention" (September 12, 2000). After reviewing a video showing several infant circumcisions being performed by a Toronto physician, the Ontario Regional Office of the Canadian Human Rights Commission concluded that circumcision was "quite disturbing" (April 19, 1999). The Commission even suggested that the video be submitted to the police for review.
- Some agencies have explicitly stated that the issue of newborn circumcision can only be resolved by the courts. The Executive Director of Family & Children's Services of Guelph and Wellington County wrote that "a lot of clarification, and some test cases" are required (July 4, 2000). The College of Physicians and Surgeons of B.C. believes that "legal questions as to the rights of children are matters for the courts to decide, as are interpretations of the Charter of Rights and Freedoms and its application to newborn infants" (August 23, 1999). The College of Physicians and Surgeons of Alberta wrote that "any challenge to the legality of our position would be for the Courts to decide" (January 17, 2000). The government of Alberta agrees. In a letter dated July 26, 2000, the Alberta Minister of Health and Wellness stated that "...these issues would ultimately have to be resolved by the courts."
- The importance of protecting children's rights to privacy and dignity is clearly reflected in section 163.1 of the Criminal Code, which prohibits making, distributing or possessing child pornography. Since circumcision is a serious incursion not only on a child's privacy and dignity, but also on his bodily integrity, the acceptability of this practice when there are no compensating benefits should be weighed at least as carefully as the acceptability of child pornography.
- Circumcision is a divisive issue. As the Children's Advocate for Saskatchewan noted in a letter dated March 8, 2000, "the 'right' of parents to permit or withhold medical procedures for their children is not without considerable controversy." In a letter dated August 8, 1997, the Director of Ethics for the Canadian Medical Association referred to "les énormes différences de point de vue qui ont cours en ce qui a trait aux aspects médicaux, sociaux et religieux de la circoncision des enfants de sexe masculin" (the enormous differences of opinion that currently exist in regard to the medical, social and religious aspects of infant male circumcision). The Alberta Medical Association acknowledges that "there is disagreement over this procedure being offered" (letter of March 3, 1998). The regulatory bodies that we have approachedand these have included all the colleges of physicians and surgeons and all the human rights commissionshave avoided answering direct questions. In general, responses have been evasive. Thus clarification of the law is essential.
- Policies with regard to circumcision are inconsistent. For example, the Saskatchewan College of Physicians and Surgeons is drafting a guideline on infant male circumcision while other colleges claim such a guideline is unnecessary. The Manitoba College of Physicians and Surgeons used to have a policy on neonatal circumcision, but withdrew it earlier this year. The registrar of the Manitoba college declined to explain why the policy was withdrawn. The Ontario Human Rights Commission has a policy on female genital mutilation, but not on male genital mutilation. The Canadian Paediatric Society has officially described infant male circumcision as a "mutilative operation of questionable benefit," but the College of Physicians and Surgeons of B.C. says it does not consider male circumcision to be a form of mutilation.
- Statements made by colleges of physicians and surgeons to the effect that neonatal circumcision is a legal procedure are in conflict with statements made by leading medical ethicists. A substantial body of evidence suggests that infant male circumcision contravenes current provisions of the Criminal Code.
- In some cases an organization has issued a policy on circumcision that is in conflict with other policies issued by the same organization. The Canadian Paediatric Society (CPS), for example, says in its guideline entitled
"Treatment Decisions for Infants and Children" that the interests of caregivers must never take precedence over the interests of the child, but in
its guideline on neonatal circumcision the CPS says in effect that a child's best interests may be overridden if necessary to satisfy parental preferences.