Canada - Female Genital Mutilation around The World:

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Laws in North America

8.1.1 The Canadian Legal System

In 1983 Chief Justice Dickson rendered his dissenting opinion on the law on labor relations in the public service. The Employee Relations Act (1987) freed the impact of international law on the interpretation of the Charter as follows:

‘Canada is a party to several international conventions on human rights similar or identical to those of the Charter. Canada has thus obliged itself internationally to ensure within its borders the protection of certain rights and fundamental free- doms which are also contained in the Charter.’ Johnsdotter (2013) also reports several cases, which did not necessarily make their way to the court but were widely reported in the media as matters brought to the attention of, and dealt with by, the officials.

8.1.2 Principles

General constitutional interpretation requires that these international obligations be considered a relevant and persuasive factor when it comes to interpreting the Charter. C. J. Dickson reiterated its position in the majority judgment in Slaight Communications v. Davidson (1989), in which he argues for the importance of the commitment made by Canada in international treaties to protect the rights guaranteed by them. He noted that the fact that a law is interpreted as having the same value as an international instrument, or under the international customary law or a treaty to which Canada is party, should generally be indicative that a high degree of importance is attached to the rights guaranteed under international law.

FGM represents discrimination based on sex, is condemned internationally and proscribed in the international instruments to which Canada is a party; the province Ontario should perform its obligations by taking measures to eliminate the practice.

Any initiative in this regard taken by the government of Ontario would be reflected in reports to international bodies in accordance with the international conventions to which Canada is a signatory.

8.1.3 The Criminal Law

The Criminal Code of Canada remains the instrument used for business-related FGM. For example, we may use it to prevent females travelling (i.e. girls and women) outside the country for the practice of FGM. Since the early 1990s, Canada has officially recognized the fear of persecution based on gender as grounds for claiming refugee status. In May 1994, the Commission Immigration and Refugee

Board granted refugee status to a woman whose daughter, aged 10, was subjected to FGM, if they had both been forced to return to their country of origin. As a result of the growing recognition of FGM as a violation of human rights in October 1994, the Minister of the Solicitor General and Services Correctional issued a notice to all police chiefs and the Commissioner of Police in the province of Ontario, explaining that FGM is a criminal offence and indicating what procedures had been imple- mented to investigate and bring charges in respect to offences related to FGM. The Attorney General also sent a note to all prosecutors on actions to bring the following accusations of FGM. In May 1997, the federal government amended the criminal code and included the practice of FGM among aggravated assault under subsection 268 (3). Under the criminal code, anyone who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term of up to 14 years. A parent who practices FGM on his or her child can be charged with seri- ous assault. If the parent does not commit the act but agrees to it being undertaken by another party, the parent can be convicted as a party to the offence under Subsection 21 (1) of the Criminal Code.

8.1.4 Civil Liability and the Duty to Report FGM

In Ontario, there is a duty to report FGM under the Order Policy of Physicians and Surgeons of Ontario (CPSO) and under the Services Act Children and Family. Under the policy of the CPSO, circumcision, excision and infibulation or reinfibulation of a female child or woman by a doctor holding a license in Ontario would be considered unlawful, unless medically indicated as a profes- sional fault. The Order also requires that, in accordance with the Code of Conduct, any doctor who learns that another doctor has performed an operation of this kind should report it to the college as soon as possible. Circumcision, excision or infibulation a female child would in all likelihood be a form of mal- treatment of a child; therefore, the Children’s Aid Society and competent police would have to be informed.

Under the child welfare and family act, there is a duty to report any information about a child in need of protection. This duty prevails over the provisions of any other law. If a person has reasonable grounds to suspect that a child needs or may need protection (i.e. against physical abuse such as FGM), that person must convey his or her suspicions to the appropriate authorities. The legal duty to report applies to all members of the public and anyone who reports about children in the exercise of his or her profession or official duties. The act to amend the criminal code (child prostitution, child sex tourism, criminal harassment and female genital mutilation) came into force on 25 April 1997 (Section 5).

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