Infant Male Circumcision
A Violation of the
Canadian Charter of Rights and Freedoms
Table of Contents
Development of equality rights
Section 15 of the Charter guarantees to every individual the right to equal treatment by the state without discrimination. It has been characterized as the Charter's most conceptually difficult provision. In the Supreme Court's first s. 15 case,
Andrews v. Law Society of British Columbia,  1 S.C.R 143, Justice McIntyre observed that equality is "an elusive concept," and that "more than any of the other rights and freedoms guaranteed in the Charter, it lacks precise definition."
The development of equality rights has been marked by differences of opinion among members of the Supreme Court. For example, there was no clear majority position in the three equality cases heard in 1995 (Miron v. Trudel, Egan v. Canada, and Thibaudeau v. Canada). Four judges led by Gonthier J. took one approach, another four judges advanced a second approach, and L'Heureux-Dubé J. took yet another path.
By contrast, the three equality cases heard in
1997 (Eaton v. Brant County Board of Education, Benner v. Canada, and Eldridge v. British Columbia) were all unanimous decisions. Gradually the members of the Court appear to have arrived at a consensus regarding the purpose of s. 15(1) and the proper approach to equality analysis.
At the heart of s. 15 is the protection of, and respect for, basic human dignity. This objective was articulated by Justice Lamer
in Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497:
In general terms, the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.
What is human dignity? In Law v. Canada, the Court defined this concept as follows:
Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment.
The most fundamental part of human dignity is inviolability. As Justice Cory noted
in R. v. Stillman,  1 S.C.R. 607,
Canadians think of their bodies as the outward manifestation of themselves. It is considered to be uniquely important and uniquely theirs. Any invasion of the body is an invasion of the particular person. Indeed, it is the ultimate invasion of personal dignity and privacy... the innate dignity of the individual... is, to a large extent, based upon the integrity and sanctity of the body.
Obviously human dignity is harmed when part of a normal sexual organ is forcibly removed from a healthy individual. In 1991 a German court awarded political asylum to a Turkish man based on his fear of forced circumcision. The court found:
There may be...no doubt that a circumcision which has taken place against the will of the person affected shows...a violation of his physical and psychological integrity which is of significance to asylum.1
A panel of experts appointed by the Secretary General of the United Nations to report on human rights violations on the territory of the former Yugoslavia referred to male circumcision in these terms:
Men are also subject to sexual assault. They are forced to rape women and to perform sex acts on guards or each other. They have also been subjected to castration, circumcision or other sexual
Another United Nations report describes forced circumcision of Bosnian Serb soldiers by Muslim and Mujahedin irregular troops as "torture of
The right to physical integrity is among the most basic of human rights. By showing concern, respect and consideration only for the physical integrity of females, sections 268(3) and 268(4) of the Criminal Code demean half the population.
In Law v. Canada, the Court set out a three-part test to be used in equality cases:
A court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries:
Since it refers to body parts found only in females, s. 268 of the Criminal Code draws a clear distinction between the sexes. Sex is one of the enumerated grounds of discrimination in s. 15(1) of the Charter. Thus the first two conditions for a violation of s. 15 are met.
A. Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?
B. Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?
C. Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?
The only question remaining is whether the sex distinctions drawn by s. 268 impose a disadvantage upon males in a way that constitutes discrimination under s. 15(1) of the Charter. This determination is made through an analysis of the full context surrounding the claim and the claimant.
The role of context in identifying discrimination was set out
in Law v. Canada:
(7) The contextual factors which determine whether legislation has the effect of demeaning a claimant's dignity must be construed and examined from the perspective of the claimant. The focus of the inquiry is both subjective and objective. The relevant point of view is that of the reasonable person, in circumstances similar to those of the claimant, who takes into account the contextual factors relevant to the claim.
Although males collectively do not constitute a historically disadvantaged or vulnerable group, the vast majority of circumcisions done in Canada are carried out on infants, who are among the most vulnerable members of society. They are incapable of making their own decisions and are totally dependent on others for their survival. Thus there is no question that the legislation at issue affects a highly vulnerable group.
(8) There is a variety of factors which may be referred to by a s. 15(1) claimant in order to demonstrate that legislation demeans his or her dignity. The list of factors is not closed. Guidance as to these factors may be found in the jurisprudence of this Court, and by analogy to recognized factors.
(9) Some important contextual factors influencing the determination of whether s. 15(1) has been infringed are, among others:
(A) Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue.
The effects of a law as they relate to the important purpose of s. 15(1) in protecting individuals or groups who are vulnerable, disadvantaged, or members of "discrete and insular minorities" should always be a central consideration. Although the claimant's association with a historically more advantaged or disadvantaged group or groups is not per se determinative of an infringement, the existence of these pre-existing factors will favour a finding that s. 15(1) has been infringed.
(B) The correspondence, or lack thereof, between the ground or grounds on which the claim is based and the actual need, capacity, or circumstances of the claimant or others.
Although the mere fact that the impugned legislation takes into account the claimant's traits or circumstances will not necessarily be sufficient to defeat a s. 15(1) claim, it will generally be more difficult to establish discrimination to the extent that the law takes into account the claimant's actual situation in a manner that respects his or her value as a human being or member of Canadian society, and less difficult to do so where the law fails to take into account the claimant's actual situation.
(C) The ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society.
An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation. This factor is more relevant where the s. 15(1) claim is brought by a more advantaged member of society.
(D) The nature and scope of the interest affected by the impugned law.
The more severe and localized the consequences of the legislation for the affected group, the more likely that the differential treatment responsible for these consequences is discriminatory within the meaning of s. 15(1).
Another contextual factor to be considered is that sections 268(3) and 268(4) of the Criminal Code fail to take into account the "actual need, capacity, or circumstances" of either males or females. It is estimated that in Canada some 30,000 male infants are circumcised without medical justification every year, while there have been no reported cases in this country of genital mutilation being performed on a female. Yet the legislation at issue is concerned exclusively with the genital integrity of females. If the underlying functional value of the legislation is to protect vulnerable individuals from unwarranted interference with their genitals, then sex is not a relevant marker of individuals who require such protection.
In Brooks v. Canada Safeway Ltd.,  1 S.C.R. 1219, the Court recognized that exclusion of pregnancy from coverage under an employer health plan was discriminatory. The Court pointed out that while nature endowed only one of the sexes with the ability to bear children, a facile reliance on this fact would result in placing an unfair burden on women.
On the other hand, in R. v. Hess,  2 S.C.R. 906 and Weatherall v. Canada (Attorney General),  2 S.C.R. 872, the Supreme Court found that in some circumstances differential treatment of the sexes does not constitute discrimination.
The lesson to be learned from these cases is that discrimination analysis must be conducted with a view to the larger context. Only then is it possible to separate biological differences which are normatively relevant and hence benign, from those which are irrelevant and thus discriminatory.
Structural differences between male and female sex organs are irrelevant in the context of safeguarding physical integrity. The male and female reproductive organs are complex anatomical structures that arise from the same embryonic tissue. There is no scientific basis for viewing any portion of the external genitals of either sex as redundant.
In summary, s. 268 of the Criminal Code constitutes discrimination under s. 15 of the Charter. It makes distinctions on the enumerated ground of sex. It burdens males as it does not burden females. It offers protection to females which it does not offer to males. It is discriminatory.
Moreover, our case is concerned with issues of physical integrity as well as of equality. Since our case deals with very fundamental rights, it is important that it be heard.
Judgement of 5 Nov. 1991, BVerwG, Bundesverwaltungsgericht Federal Administrative Court, 107 DVBI 828-830 (1992).
United Nations Document No. S/1994/674, Section IV(F): Rape and other forms of sexual assault.
Reports on War Crimes in the Former Yugoslavia Pursuant to UN Security Council Resolution 771. Fourth Report, Part II: Torture of Prisoners.