[Recorded by Electronic Apparatus]
Tuesday, November 26, 1996
.0945 
[English]
The Chair: Order. This morning we're dealing with Bill C-27, an act to amend the Criminal Code with respect to child prostitution, child sex tourism, criminal harassment and female genital mutilation, as well as Bill C-235, an act to amend the Criminal Code with respect to genital mutilation of female persons. Bill 235 is a private member's bill by Christiane Gagnon.
This morning we welcome, from World Vision Canada, Linda Tripp, vice-president of international and government relations, and Matthew Scott, public policy officer of international and government regulations. As well, from the African Canadian Legal Clinic, we welcome Michelle Williams, policy researcher and analyst, and Randa Yassin, a member. From the National Action Committee on the Status of Women we welcome Linda Cornwell, member, and Nawal Abdul Mumin, also a member of NAC.
I know each of you has a brief to present. We would ask you to do that, and then we will have questions. As we get closer to questions we'll remind people that if a question is addressed to one group and other members of the panel want to respond, we want to accommodate that. We like the idea of discussion, especially if there is a variation in terms of views.
We'll start, then, with World Vision.
Ms Linda Tripp (Vice-President, International and Government Relations, World Vision Canada): Thank you very much.
Madam Chairman, honourable members of the committee, ladies and gentlemen, I want to begin, first of all, by expressing appreciation on behalf of World Vision for the clerk's offer to have our brief translated. We have been absolutely overtaken by events in Zaire and Rwanda and have not had an opportunity to translate. So I appreciate that.
It was my intention to have a written opening statement, but again, I beg your indulgence. World Vision lost two senior staff members on the Ethiopian plane that went down over the weekend. Some of us knew personally Tim Stone, so it's been a very difficult time for us. I apologize.
I will be referring to the brief we did submit, and will be relying heavily on that, with some elaboration. Again, thank you for your patience with us.
Child prostitution affects millions of children worldwide. Most estimates place the number of child prostitutes in Asia alone at one million. These children are employed or enslaved in the growing sex industries of Cambodia, India, Bangladesh, Thailand and the Philippines. These industries attract foreign visitors from every region of the globe while escaping the attention of their own local governments.
According to Ron O' Grady from the organization ECPAT - End Child Prostitution, Abduction and Trafficking - western pedophiles constitute only 10% of those who sexually exploit children in cities like Bangkok and Manila. The abhorrent sexual exploitation of children is becoming culturally entrenched in many Asian countries, and thus far more difficult to address from a legislative standpoint.
Changing such attitudes requires the long-term cooperation of civil society and the public sector. Development organizations like World Vision have been working for decades to address the cultural and moral foundations that continue the traditions and cultural practices that give no moral value to children in many societies.
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For the majority of the world's sexually exploited children, their descent into the world of prostitution is one exacerbated by physical abuse, the threat of death and the fear for economic survival. The horrible phenomenon of child prostitution is inextricably linked to poverty in the developing world. In a survey of street girls in Bangladesh, for example, World Vision found that 13 out of 52 girls had been raped or abused and then paid for sex. The majority were 12 to 18 years old, although two of them were eight and nine years old respectively.
With an estimated 100,000 girl street children in Dhaka, the figures suggest a critical problem which unfortunately is not restricted to just Bangladesh. Now Vietnam, Sri Lanka and other Asian nations are joining the growing list of countries that share this shameful trade as a significant sector of their economy in the face of crippling poverty. No continent is now untouched by the growing trade in children.
Much of the growth in child prostitution has been compounded by the spreading HIV/AIDS pandemic. Many pedophiles seek sex with younger and younger children under the mistaken belief that they are less likely to contract HIV from a younger child. Quite the opposite is true. Because of their vulnerability and weakness, children in prostitution are often forced to take more clients than an adult might accept, and are generally powerless to ask the client to use a condom. Moreover, children are physically more vulnerable to infection, not only because they are more easily damaged internally and are often treated with violence by their clients, but also because their young membranes are more porous and therefore more susceptible to infection.
The Chair: I'll ask you to slow down a little bit because there is simultaneous translation.
Ms Tripp: I apologize.
The Chair: That's okay. We all do it.
Ms Tripp: I wanted to share with you a personal experience I had in Bangkok. World Vision for many years has been supporting a centre for distressed women and girls. One of the things we do is provide social workers to be at the train station in Bangkok. I personally witnessed our social workers in a foot race with pimps at the train station to get to the young girls coming off the train.
These are young women coming down from the rural areas either because they think they'll get a wonderful job and money or they've been sold by their parents to someone who promised an education and a job. Sometimes they get into physical fights over these young girls. World Vision, along with other local groups, provides this home for women either to get them back to their community before they get sucked into the sex trade...but most of the young women there are women who have come out of it.
I met one young woman - she wasn't a woman; she was a child. She was 13 years old. She was sold into prostitution at 11. There were some nights when she had to service up to 30 men. She finally escaped one day and the police found her on a garbage dump. This is where the young girl had gone because that's all she thought of herself...was a piece of garbage. They brought her to the distressed women's centre, and all we could do for that young girl was to care for and love her until she died because she was so full of infection. She was 13 years old when she died.
We're not talking about statistics, ladies and gentlemen. We're talking about children.
As the current pending Canadian legislation, Bill C-27, stipulates in its preamble, the sexual exploitation of children constitutes a grave violation of fundamental human rights established under the United Nations Declaration on the Elimination of Violence against Women, the UN Convention on the Rights of the Child, and against the social mores of Canadians nationwide.
World Vision Canada expresses its moral repulsion to sexual exploitation of any kind, particularly the variety that devastates children. We also are firmly determined to further our efforts in bringing this global affliction to an end. World Vision Canada urges this committee to strengthen the pending legislation to send a clear message to governments that continue to turn a blind eye to child sexual exploitation that such injustice will not be tolerated, and particularly not by Canadians.
World Vision Canada anticipates that the pending Bill C-27 will form part of a long-term, holistic national plan of action to combat child sexual exploitation domestically and internationally. Canada must take a firm stand on the sexual exploitation of children as a signatory to the UN Convention on the Rights of the Child and as a leader in international humanitarian affairs.
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Therefore, World Vision proposes the following recommendations to the committee.
The first recommendation regards the condition of payment. I'm referring to proposed subsection 212(4). We are recommending that the phrase ``for consideration'' be deleted.
World Vision Canada recognizes that the intent of the legislation is to curtail or eliminate child prostitution, especially as Canadians engage in it overseas. As a result, practices of child sexual slavery are not directly addressed by this bill, nor were they intended to.
However, the inclusion of the phrase ``for consideration'' in this proposed subsection, with the marginal note ``Offence in relation to prostitution of a person under the age of eighteen years'', runs the risk of allowing the vast majority of pedophiles and sex tourists in Asia to continue to remain unpunished. The phrase ``for consideration'' is frequently interpreted in Canadian jurisprudence to mean ``in exchange for cash or goods''.
Unfortunately, the brutal reality of child prostitution, particularly in Asia, does not allow such a neat line to be drawn between child sexual slavery and child prostitution. Regrettably, World Vision's experience in helping child victims of sexual exploitation is that child sexual exploitation is very often perpetrated without any goods or money being offered to the child, and such abuses will continue to go unchecked unless the legislation is altered.
Our second recommendation concerns extraterritoriality: enforcement and causal concerns. The Achilles heel of most well-intentioned child prostitution legislation is enforcement. In order to be effective, legislation must not only deal with the offence itself, but with any possible causes that lead to that offence.
In a report prepared by World Vision on the commercial sexual exploitation of children, Filipino child activist Ronnie Vellasco describes tough legislation in the Philippines designed to combat child prostitution, as well as its causes. I'm quoting from that report:
- This law sets down guidelines to protect the child from what we often refer to as ``double
exploitation,'' in that children are exploited sexually by the paedophiles and monetarily by their
families. Although this law has good intentions, it is still difficult to prosecute those individuals
arrested for child abuse.
- Gives monetary consideration, goods, or other benefits to a child with the intent to engage such
child into prostitution.
As reported in paragraph 107 of the recently released Machel study on the impact of war on children, sexual offences against children are often perpetrated by troops stationed on peacekeeping missions under UN command and usually remain unpunished.
We saw this for ourselves in Cambodia. When the troops came into Cambodia, especially around Phnom Penh, in preparation for the free elections, child prostitution escalated. We still are working with street children. Many of the perpetrators were troops.
We feel that Canada cannot on one hand be a signatory to the United Nations Convention on the Rights of the Child and the other hand allow our troops to engage in such heinous activities, especially under the flag of the United Nations.
Finally, we would like to make a comment on female genital mutilation. World Vision Canada applauds the inclusion of stronger legislation on the widespread practice of FGM. Although this practice has been banned in most African countries, there is virtually no enforcement of the law, and cultural values supporting it remain largely unchanged.
World Vision is engaged in education programs for women by women at the community level in many African countries to transform community values, value women and their reproductive health and to end this barbaric tradition.
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We will continue to pursue program and policy avenues within our reach to end female genital mutilation. While grateful for the inclusion of FGM as a wounding or maiming offence in the Criminal Code under Bill C-27, we would support a separate bill addressing female genital mutilation if that would strengthen the document.
Finally, ladies and gentlemen, we submit the proposals above concerning the textual weakness of the bill in the hope that an improved, strengthened piece of legislation can participate in Canada's larger humanitarian agenda in the developing world.
World Vision Canada recognizes that child sexual exploitation occurs at grave levels in Canada, but for the purposes of this brief, based on our extensive experience, we have focused our comments internationally.
World Vision's consistent commitment to children throughout our history offers a wealth of experience, information and hindsight, for which we are particularly grateful to be able to share in this forum.
Child exploitation in any form is heinous. I quote our Minister of Foreign Affairs, the Hon. Lloyd Axworthy, from his speech at the Stockholm conference:
- The act of forcing a child into prostitution is no less heinous than the sniper in war who fixes the
sights of his rifle on a child playing in the street and coldly squeezes the trigger.
I thank you for the opportunity to briefly be a voice for the voiceless today.
The Chair: Thank you.
Now we have the African Canadian Legal Clinic.
Ms Michelle Williams (Policy Researcher and Analyst, African Canadian Legal Clinic): Madam Chair, members of the standing committee, and ladies and gentlemen, the African Canadian Legal Clinic greatly appreciates the opportunity to appear before you today to make submissions regarding Bill C-27.
My name is Michelle Williams. I am the policy researcher and analyst at the African Canadian Legal Clinic. Appearing with me today, particularly on the issue of FGM, is Randa Yassin, who is also a member of the FGM Legal Community Committee.
I first would like to request that the written briefs that have been submitted be read and then attached as part of the minutes. One deals with the issue of female genital mutilation, and the other deals with the issue of mandatory minimum sentences. This morning, I would like to divide it up into three different areas and be as brief as possible. First of all, I'll tell you a bit about the African Canadian Legal Clinic, since it's our first appearance before the committee. Second, I'll make a few comments regarding the FGM issue included in the bill. Finally, I'll make a few comments regarding mandatory minimum sentences included in the bill.
As indicated in the preface to our brief, the African Canadian Legal Clinic, also called the ACLC, is a not-for-profit legal clinic incorporated under the laws of the Province of Ontario. Our mandate is to address systemic and institutional discrimination in the justice system, education, employment, housing, health and other spheres of Canadian society. We also work as an agency to address government policies and legislation in order to prevent any discrimination from creeping into those areas.
To date, our work has sort of covered quite a wide range of areas. We've been granted standing before the commission of inquiry into the deployment of Canadian Forces to Somalia. We've made written submissions on systemic racism in Ontario. We have appeared before the Metro Toronto council on issues of budget. We are also involved in a number of test cases involving immigration issues. We have applied for an intervention before the Supreme Court in a case involving race and judicial bias.
I'll now turn to the first issue of concern to the ACLC, which involves female genital mutilation. I would refer you to the brief we've submitted on the issue. I'll just highlight the important points now.
First of all, we're very pleased that the federal government has proposed legislation on this issue and that it has been recognized as an issue of violence against women and children.
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We also commend organizations like Women's Health in Women's Hands and the FGM Legal Community Committee for the work they've done in this area, including really spearheading changes.
We have four main concerns with regard to the bill itself and the proposed amendments. This commences on page 6 of the brief, if you'd like to follow it. The first item is the definition of FGM. The second is the possible medicalization of FGM. The third is the issue of consent for women aged 18 and over. The fourth is the issue of sentencing.
Beginning with the definition of FGM, one thing that would improve the proposed amendment is that FGM should be clearly defined as the mutilation of a healthy organ. Right now, it sort of lists the parts of the female genitalia, but to define it as mutilation of a healthy organ really brings home the idea that it is an issue of violence against women and children.
Also, it does not include the issue of reinfibulation, which is usually performed on women following childbirth. It is also performed on some widowed or divorced women who want to remarry. The primary reason for having reinfibulation done is to maintain or enhance male sexual pleasure.
So we are recommending that the definition be altered to include the issue of the mutilation of a healthy organ. Also, reinfibulation should be included in the amendment.
Second, we have concerns regarding the possible medicalization of FGM that may arise as a result of the current amendment. In particular, the amendment includes what we're calling a therapeutic defence. There is a part that says if the operation is performed to enhance normal sexual function or normal sexual appearance, then that is potentially an area in which practitioners can claim a defence for having performed the operation.
We think this sort of defence is not necessary for explicit inclusion in the amendment, and it may encourage the medicalization of the procedure.
It's not necessary, because section 45 of the Criminal Code already provides a defence for doctors if they perform a surgical operation with reasonable care and skill and it was reasonable to have performed the operation. So it's already open to practitioners to claim this defence, which already exists in the code under section 45.
We also have concerns that if it's explicitly included in proposed section 268, then it may be confusing to doctors. For example, in Ontario, there's already a directive that says doctors are not to practise FGM. So to include in the amendment what may be interpreted as a medical excuse for practising it confuses the issue further.
The third area we'd like to talk about is the issue of consent. This arises in proposed subsection 268(4). The discussion in the brief begins on page 11.
First of all, there's extreme social, cultural and related economic pressure on women to undergo the procedure. Therefore, it's difficult to be sure of the degree to which any woman freely consents to FGM, even if she is 18 or over.
The law maintains that the personal interest or preference of an individual who consents to an infliction of physical harm must yield to the more compelling societal or public interest in protecting physical integrity and human dignity. That is found in a number of cases, and it's reflected in common law that you can not consent to the infliction of serious bodily harm.
So with the introduction of Bill C-27, Parliament has accepted that FGM is an aggravated assault causing bodily harm. Given the social, religious, and cultural pressures to undergo FGM, there's even less of a reason to depart from the common law principle in this case.
We recognize that Parliament included that particular non-consent provision in order to explicitly protect children, but we're suggesting that it should be extended to say that nobody can consent to FGM, which is consistent with the law as it currently exists.
Finally, there's the issue of sentencing. In many instances, families who agree to have FGM performed on their children sincerely believe that they're acting in the best interests of those children and are not aware of the extreme health risks involved. Indeed, some families believe that not having FGM performed on their children would constitute child neglect.
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Therefore it's extremely important, first of all, for communities to be educated about the issue, but also it leads into our suggestion that there should be perhaps a more severe sentence for health care practitioners than for the families involved.
Here are some of the reasons for this, just to flesh out the issue a little bit. First of all, practitioners or physicians know better than to perform FGM. For example, again in Ontario, there's a directive saying that they are not to be performing FGM. So arguably, their degree of responsibility is heightened in this regard if they disregard their directive and the law to perform FGM.
Second, it is important to give time for educational programs to work. It has been demonstrated by the work that's been done so far that if you do take the time to educate families and people in the community about the health risks involved, then they have a better understanding about what is at risk for their children and then are less likely to have any of these procedures performed.
Third, there's the issue of the best interests of the child. Children obviously need the love, care and security provided by the adults in their lives. Incarcerating parents will obviously lead to family breakdowns, and in some cases, severe immigration consequences. Not only would a child then have to live with the effects of the procedure, but they'd also be subject to separation from their family and be without the benefit of the other important aspects of their culture and tradition when being raised.
Finally, the final reason for suggesting a higher penalty for practitioners is the existence of racism and discrimination within the criminal justice system. Intentional and unintentional discrimination results in the overpolicing of certain communities. It influences prosecuting decisions, and it can affect some sentencing decisions.
Consequently, members of the affected communities are concerned that disparate enforcement may result in overpolicing and overcharging families, and a lower enforcement of the actual practitioners who are performing the procedure and who should know better.
To that end, we are suggesting that a specific offence of female genital mutilation should be included in the Criminal Code to address those concerns. That would allow for a two-tiered sentencing structure.
There is a precedent for that in terms of the abortion provisions, which are now no longer in effect. There was a two-tiered sentencing provision in that part of the Criminal Code.
At this point, I would just like to move over to the issue of mandatory minimum sentences, which is entirely unrelated, but I thought that in the interest of time and convenience to the committee, I would address those today.
The issue of mandatory minimum sentences arises under proposed section 212 of Bill C-27, which is amending the Criminal Code.
I'd first like to say that the ACLC is vociferously opposed to child prostitution and all forms of exploitation of children. We are pleased that child prostitution is being addressed in this bill, and we fully support the legislation to eradicate child prostitution.
The comments I'd like to make today are more on the technical issue of the use of mandatory minimum sentences generally in the Criminal Code.
We have concerns that, first of all, mandatory minimums are not effective. Second, they may have a disparate impact on certain groups in Canadian society.
The concerns regarding the use of mandatory minimum sentences fall into four main areas.
First, they're inconsistent with a principled approach to sentencing. That is, they undermine the comprehensive sentencing scheme that was introduced even this September by Parliament, and they provide an unwise restriction on a judge's ability to weigh the circumstances of each case, especially in light of the guidelines that we have implemented now for sentencing.
Second, the use of mandatory minimums in other jurisdictions has been unsuccessful. Part of the reason for the lack of success is that police, prosecutors, lawyers, judges and the accused themselves, take steps to avoid the application of the law when they think it's going to be too harsh in any given case.
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As a result, a lot of what happens is discrepancies in charging. Some people aren't charged, or they're charged with other offences in order to avoid the effects of the mandatory minimum sentence. As a result, the overall probability that the accused will be incarcerated remains about the same after the enactment of the mandatory minimum sentence.
Also, the use of mandatory minimum sentences is likely to have a discriminatory impact on people who are of minorities. For example, the U.S. Sentencing Commission found that minorities were hit especially hard by mandatory sentences, partly due to more discretion being exercised at the early end of the justice system. Studies have shown that where there's increased discretion in that way, there's more room for discrimination in those sorts of decisions to creep in.
Second, there is discrimination - this is again from the U.S. Sentencing Commission - as a result of some offences being subject to mandatory minimums. For example, in the U.S., those crimes that are most subject to mandatory sentences are those in which black involvement in the crime is disproportionate. The U.S. Sentencing Commission found that of the 60 mandatory sentencing laws Congress had placed on the books, only four or five of the drug and weapons offences were used regulatory, and 37 of the mandatory minimums were not used at all from 1984-90.
Lest we think that discrimination does not exist in Canada, we now have voluminous reports documenting it, from the Donald Marshall report through to the recent report from the commission on systemic racism in Ontario. So we must ask the question of why mandatory minimums are being considered for a particular case if they are under consideration.
With regard to that, I'd just like to draw your attention to page 9 of the brief. I just briefly went through the Criminal Code and picked out offences that involved, for example, sexual assault on children under the age of 14. You'll notice that for sexual interference with a person under the age of 14, invitation to sexual touching under the age of 14 or enticing someone under the age of 14 to engage in bestiality, none of these provide for mandatory minimum sentences. In fact, some of them involve being prosecuted under a summary conviction procedure.
So again, I'm just making the point that we should ask ourselves why we're choosing certain areas to be subject to mandatory sentences and whether we should have some consistency.
My last point on mandatory minimums is that the constitutional validity of the mandatory minimum five-year sentence in this particular provision is questionable. I say that because of two main cases coming out of the Supreme Court.
One is the case of Downey, which was a challenge to the prosecution provisions themselves. In particular, in that part of the provision, it says that if you are found to be in the company of prostitutes or hanging around prostitutes, then there's a presumption that you are a pimp. The court unanimously found that this provision violated the presumption of innocence under the charter.
However, four of the seven judges in that case said that was okay, as it was a reasonable limit under section 1 of the charter. The remaining three judges were not content that this sort of violation was okay. They felt it would catch too many people in the net.
For example, say a family member, a brother or sister, spends time with a prostitute or shares an apartment with one because they can't afford it otherwise. That person can then be deemed under that particular provision to be a pimp. So that was the Downey case.
Along with that was the case of Smith, which is another case of the Supreme Court. It found that the mandatory minimum sentence of seven years under the Narcotics Control Act was unconstitutional. It could be that a person who, for example, was carrying a small amount of marijuana or something would be found to be guilty and could be thrown in jail for seven years. They thought in that case that the punishment would be grossly disproportionate to the behaviour that had existed, so they struck down that provision.
So in light of those two cases together, I think that the committee and Parliament might want to go back to look at whether the mandatory minimum sentence of five years under this provision is constitutional.
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For all of those reasons, we're suggesting that the mandatory minimum sentence of five years be removed, and that judges be given, as with other sentences, the ability to tailor a sentence to the particular circumstances of the case.
I apologize if I've gone over my time, but I'm trying to get both of these in together.
Those are my comments. Thank you.
The Chair: That's okay. Thank you very much.
Now we have the National Action Committee on the Status of Women.
Ms Linda Cornwell (Member, National Action Committee on the Status of Women): Good morning, ladies and gentlemen.
The National Action Committee on the Status of Women is the largest feminist organization in Canada. It represents more than 600 member groups from across the country. The diversity of women from all parts of Canada is well reflected in that membership. There is a growing membership of immigrant women's groups, agencies serving immigrants and refugees, and refugee advocacy groups.
To meet our goals, NAC rigorously and steadfastly lobbies government to enact and implement policies and programs that will ensure women's equality rights. It is in this spirit that we appear today before the parliamentary Standing Committee on Justice and Legal Affairs.
At our 1994 annual general meeting, we unanimously adopted the following resolution:
- That NAC recognize that Female Genital Mutilation is a violation of women's human rights;
child abuse; violence against women; and a violation of women's sexuality, and advocate for its
prevention nationally and internationally.
We thank the committee for affording us this opportunity of addressing our concerns about the proposed amendment to the Criminal Code.
Female genital mutilation is an issue that affects Canadian women of all ages. It affects new citizens of our country, girl children born in Canada, and women from immigrant and refugee communities. FGM impacts on women from earliest infancy to old age. It is imperative for the government to enact the necessary legislation that will lead to its eradication and to protect women and children of all ages.
Our concern is that the proposed amendment leaves loopholes that will enable the continuation of the practice in Canada. We urge the committee to carefully reflect upon these perceived loopholes in order to ensure that, as a country, we do our utmost toward the eradication of this harmful practice.
Our first concern is with the definition of FGM, as contained in the amendment. I will quote from Gerard Zwan, who wrote a book called Mutilation sexuelles feminines:
- Any definitive and irremediable removal of a healthy organ is a mutilation. The female external
genital organ is normally constituted by the vulva, which comprises the labia majora, the labia
minora...and the clitoris which is covered by its prepuce... Their constitution on female humans
is genetically programmed and is identically reproduced in all embryos and in all races. The
vulva is an integral part of the natural inheritance of humanity. When normal, there is absolutely
no reason, medical, moral, or aesthetic to suppress all or part of these exterior genital organs.
Reinfibulation, which is the practice of restitching the vulva after vaginal delivery to make the opening smaller in order to enhance male sexual pleasure or to ensure chastity, is a continuing mutilation that is not even mentioned in the amendment.
So we recommend that proposed subsection 268(3) be changed to read:
- (3) For greater certainty, in this section, ``wounds'' or ``maims'' includes to excise, infibulate,
reinfibulate or otherwise mutilate,
Our second concern is with the possibility of a codification of a therapeutic defence for FGM and its potential to medicalize procedure. I will quote from the World Health Organization's female genital mutilation information kit, which was published in 1995.
- Given WHO's commitment to advance the health and protect the lives of women and children,
including their reproductive and psychological health, the Organization continues to advise
unequivocally that FGM must not be institutionalized, nor should any form of FGM be
performed by any health professionals in any setting, including hospitals or other health
establishments.
- 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.
We refer the committee to problems that have arisen in Great Britain, where a similar law has not been able to achieve its aim of eradicating FGM. We also remind the committee that as recently as at least 1937, in the United States, women were subjected to clitoridectomies as treatment for:
- female mental disorders including hysteria, nymphomania, or madness traced to their
sexuality. Included were ``disorderly women'' whom one doctor identified as every woman
from women's rightists, bloomer wearers to midwives... Included too were lesbians, anyone
suspected of lesbian inclinations and those with ``an aversion to men''.
Unnecessary surgeries, such as hysterectomies, mastectomies and sterilizations, continue to this day. Thus, we must take great care when we cite normalcy as a determinant for legitimate genital surgeries.
We would recommend the deletion of an entire part of proposed subsection 268(3):
- 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.
Female genital mutilation is a violation of women's fundamental human rights. A victim of a human rights violation cannot be considered to have consented to the violation.
We are in total agreement with proposed subsection 268(4), which clearly protects girl children under the age of 18 ``whether the consent is given by that young person or by any person on that young person's behalf''. We are, however, extremely concerned about what happens after girls have obtained the age of majority. Where is their protection? We are fearful that the amendment could lead to situations whereby young women would be forced to ``choose'' to be subjected to female genital mutilation. This subsection could conceivably provide a defence for those accused of aggravated assault in performing FGM in that the perpetrators could claim that the victim consented to the procedure.
Would a law that made it illegal to cut off the left hand of a child under the age of 18 but tacitly implied that after the age of 18 a person could choose to suffer such mutilation ever be codified in the laws of this country?
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We refer you again to Gerard Zwan's statement:
- Any definitive and irremediable removal of a healthy organ is a mutilation.
- No female person may consent to being the object of female genital mutilation, and any consent
that may have been communicated is reputed to be invalid.
With the above recommendations, we have attempted to deal with difficulties and loopholes in the proposed legislation. There remain, however, concerns with regard to FGM that have not been addressed in the proposed amendments. We refer specifically to the criminal prosecution of operators and accomplices.
We urge the government to give serious consideration to proposals for a new categorization of FGM in the Criminal Code. We further urge the government to work in close collaboration with the affected communities in drafting such legislation.
We recommend that particular attention be paid to the recommendations of the Ontario task force on female genital mutilation and to the briefs being presented to this standing committee by the FGM Legal Community Committee, Women's Health in Women's Hands, and the African Canadian Legal Committee.
The recommendation is that we support the formation of a joint government-community committee to draft a carefully considered legislative response to female genital mutilation.
Once again, we thank the committee for this opportunity to address our concerns about the proposed amendments to the Criminal Code.
The Department of Justice, in its news release of December 14, 1995, stated that ``The Criminal Code is being amended to clarify specifically that the practice of FGM is criminal conduct in Canada.'' This amendment will serve as a useful tool in our efforts to educate Canadians regarding the health risks associated with this practice. We believe that the incorporation of the recommendations contained in this brief will lead to a much more appropriate and effective legislation.
I will leave you with the words of the Somali poet and activist, Dahabo Elmi Muse:
- And now, hear my appeal! I appeal for dreams broken. I appeal for my right to live as a whole
human being. I appeal to you and all peace-loving people. Protect, support, and give a hand to
innocent little girls who do no harm. Trusting and obedient to their parents, their elders, they
know only smiles. Initiate them to the world of love, not to the world of feminine sorrow.
Thank you.
The Chair: Madame Gagnon, because of the tightness of our schedule, we're going to stick with five-minute rounds. We have two more panels this morning.
[Translation]
Mrs. Gagnon (Québec): Thank you for your testimony. The views you have expressed have also been put forward by other witnesses who have examined various aspects of the bill.
This bill is particularly important to me because I tabled a private member's bill that reflects the recommendations that you formulated this morning. It is therefore with great interest that I take part in the business of this committee which looks into the issue of female genital mutilation and sex tourism. Those are the two components of my private member's bill.
You expressed your views and said you hoped that we would make very specific amendments concerning consent, among other things, on the mutilation of sexual organs and normal appearance. All these issues have been raised here and we agree that the current bill must be amended.
Ms Tripp, you also discussed sex tourism and an amendment that you would like to see concerning consideration.
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This issue was also raised by other witnesses. There may be a reason to make sure that the amendments dealing with sex tourism and extra-territoriality are properly understood. You are asking that we attack the causes.
One of the witnesses had also raised this problem and stated that the bill did not contain measures or guidelines. We must be aware that it will be difficult to enforce this in a foreign country.
I would like you to specify which provisions the bill should contain concerning extra-territoriality. What provisions would enable it to tackle the causes of the problem? Would you like to see the bill contain guidelines?
I will come back later with questions on female genital mutilation. Like Ms Cornwell, you have discussed the bill as a whole. A response from each of you would be desirable. Thank you.
[English]
Ms Tripp: Thank you very much.
In response, I think guidelines are absolutely necessary. When we talk about extraterritoriality, whether it is Canadians or members of the armed forces, identifying those guidelines would be a lot of work beyond this discussion here. The guidelines could include the conditions under which the child finds himself or herself in this situation. Who is responsible for it? What were the conditions that led the perpetrator to come in contact with the child? What actually took place?
I appreciate your openness to expanding the bill to include guidelines. We would be very happy to work with the committee on this. I won't elaborate more because of time constraints, but clearly many of our staff in these countries who are dealing with street children in particular - they are tremendously vulnerable - would be a valuable resource in helping to identify some of those guidelines.
Is this sufficient at this point, or would you like me to elaborate further?
[Translation]
Mrs. Gagnon: I'd like to get back to the issue of consent to female genital mutilation and I'd like Ms Williams or Ms Cornwell to answer me.
You emphasized the problem related to the wording of the clause on consent which could give the impression that a person over the age of 18, could consent to this. We are fully aware that this is a cultural practice and that pressure is exerted within families. What wording would you like to see in this clause on consent? I would like to hear your views on this, Ms Williams.
[English]
Ms Williams: On page 13 of the brief, one suggested form of the wording would be: ``For the purpose of this section, no consent to the mutilation is valid, whether the consent is given by that person or by any person on that person's behalf.'' This is at the bottom of the page. It is similar to the wording that currently exists.
My friend has suggested, I believe, a variation on this. Working with both of those suggestions, you may be able to find something suitable for the committee.
[Translation]
Mrs. Gagnon: Indeed, this is a problem and I've raised the subject of consent. If we want to be clear and have a specific objective, namely to protect the integrity of the bodies of women and young girls, we have to have a bill that is clear, specific and precise.
I would have preferred a separate chapter dealing with the whole problem of female genital mutilation. The government has chosen to consider it in the context of assault, which in my opinion, reduces the impact of this bill and its potential interpretation by doctors and judges.
I'm pleased to hear you this morning. After having heard arguments against my views, I had ended up thinking that I should perhaps try to analyze this whole matter in another context. But this morning, you've given me confidence again. You have rekindled the flame so to speak and encourage me to defend my views on consent.
I also have reservations regarding the exceptions. You must have read my bill, which is much more direct and specific.
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I also know that Ms Cornwell, who represents the National Committee on the Status of Women, more or less agrees with me regarding consent. You're very familiar with the problem since you're at the heart of the situation. You are in a position to shed a much more practical light on this from actual experience. Thank you.
[English]
Ms Cornwell: Thank you. We'd also like to reiterate the importance of community consultation in designing any such bills. Without the support of the community all of these efforts will be doomed to failure.
The Chair: Thank you.
Mr. Ramsay.
Mr. Ramsay (Crowfoot): I'd like to thank our witnesses this morning for making this presentation to our committee. We never have enough time with you.
I will focus my concerns on the bill. The Reform caucus will support this bill, but we have some concerns about the bill, and you have raised some of those concerns.
In two areas this sounds good, but it's kind of a toothless tiger. If we cannot protect our own children against men who will buy their sexual services, how are we going to protect children internationally?
I don't know if you read a report that was submitted by Kimberly Daum. She points out that B.C. in the last eight years has charged only eight men for purchasing sex from child prostitutes - in eight years, eight men. Being a former police officer and knowing the evidence you need to prove every aspect and every ingredient of a charge, I realize how difficult that's going to be internationally.
In the other area, it's in subsection 212(4) where it states that:
- (4) Every person who, in any place, obtains or attempts to obtain, for consideration,
- - and I agree to scratch the word ``consideration''; what do we need that for? -
- the sexual services of a person who is under the age of eighteen years or who that person
believes is under the age of eighteen years
We would not have child prostitution, either in this country or in any other country, if it was not for the males who seek that kind of a commodity, if I can use that term. We had police chief Julian Fantino here. In response to questions he said we're in a state of denial about child prostitution in this country.
In terms of the enforcement in these two areas where it looks good - and we're going to support it because much of the bill is going in the right direction - do you have any comments or recommendations for the committee?
Ms Tripp: Perhaps I could make a comment in terms of the internation scene. This is not to ignore the domestic scene, but I think there are people here who are more familiar with that. It's important for Canada that there be coherence in all of our foreign policies, whatever they are.
We've had so much attention lately that Craig Kielburger has brought to the issue of child labour. That is finding its way into Canada's trade relations now. Again, whether they're actually implemented...
One of the things we have talked about in our organization is whether or not Canada can tie a country's track record, recognizing we also have the same problem here... We have to look at how our trade relations go with countries that are in fact turning a blind eye, where it's almost a part of that culture to simply accept child prostitution.
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Quite frankly, I resent the term ``child prostitution''. These are not child prostitutes, these are child sex slaves.
We resonate with what you are saying: enforcement is the issue. Clearly it's not the total solution. Perhaps one step is that Canada might take a very strong position, especially in the Pacific Rim, where trade is just burgeoning, on what we are going to have our relationships based on, on what we can do mutually to help each other in bringing this to an end.
Mr. Ramsay: I would like to make one comment on that. There is nothing more discouraging than to have laws in the books that cannot be enforced.
In the area of human rights we have an excellent record. We can set ourselves up as an example to all these other countries, including China, as far as human rights is concerned. If those countries can turn a finger at us and say you clean up your own act before you ask us to clean up ours, we're in a tough situation.
There was Kimberly Daum's example where in the province of B.C. in eight years we've charged eight johns for exploiting children. I find that very discouraging, even though, as you say, it's a proper signal. If that signal doesn't have any force behind it, pretty soon it grows dim.
The Chair: Ms Torsney.
Ms Torsney (Burlington): Perhaps we should be addressing many of those comments, of course, to the provincial governments who actually enforce the legislation.
I have a question for Ms Tripp. Should the legislation be on the books for the cases that are sitting there ready to go and to be prosecuted immediately? Would you prefer that we not pass this legislation, as perhaps Mr. Ramsay is suggesting?
Mr. Ramsay: I'm not suggesting that.
Ms Torsney: Do we want the legislation, Ms Tripp?
Ms Tripp: It's a beginning. We absolutely have to have the legislation.
Ms Torsney: Great. Then all of us who care about these issues of child exploitation can communicate to our provincial colleagues and encourage them to have the crown attorneys -
Mr. Ramsay: On a point of order, if members of the committee are going to quote me, I'd ask them to do it accurately. I clearly said that the Reform Party caucus would be supporting this bill, but we have some concerns. I expressed those concerns clearly on the record. If Ms Torsney wants to cast her aspersions at me and my caucus, I'd ask her to please do it accurately.
The Chair: Thank you.
Carry on, Ms Torsney.
Ms Torsney: So, Ms Tripp, I think we're all in agreement. I don't have any more comments directed at you and your organization, which is doing some great work.
Ms Williams, we certainly heard this recommendation about mandatory minimums, but you've given us another way to look at it. It's quite important that we've heard from you this morning. It's interesting to compare this to the United States; no one has done that for us.
Many people are concerned that we just have to find another solution. The solutions we have had at hand haven't been enough, so there needs to be a minimum, because it is such a horrendous crime against children.
A shocking thing came up in the discussion at some point, and I don't know where it came from. Somebody said not to do it on the first conviction, but to do it on the second, because it's going to cost us too much money to do it on the first. How do you weigh the cost to the children who've been put into this industry versus the cost to the system?
You certainly have raised some interesting issues. We'll have to try to see how they all weigh out...but it was out of a desire to do more.
The issue of consent is an interesting one. We certainly heard from some medical practitioners about why they needed the exemption, things like they may have to remove some cancerous tissue and perhaps even do some preventative stuff. Genital piercing, genital tattooing, which is common - those are mutilations, and there is consent in those cases. We may not like them, but they are mutilations of tissue.
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How would you get around the consent for those who are over 18 in those examples and the issue of cancer and what have you? Sure, it's not normal. What about the people who have indiscriminate sexual orientation by virtue of being born with an odd set of organs?
The physicians have asked us. They say they need the exemption. They understand it's illegal to do FGM for the purposes that are outlined here. But if there is a stricter piece of legislation that will actually inhibit physicians from doing proper work... There were actually some emergency situations where people had been raped and there were hematomas that were horrible. It was actually quite distressing to look at the slides.
They identified several ways in which they needed to have the leeway to do their work. They were afraid doctors would become so concerned about the legislation if there was a change to it that if there wasn't a medical exemption they would not in fact do the right thing. I guess in this age of suing everybody they get concerned about it.
On the issue of who to prosecute more seriously, the doctors or pseudo-medical practitioners, because that's really who it is, versus the parents, the judicial discretion you want on the child prostitution side of things is there on the female genital mutilation side of things. So we hope judges will exercise appropriate discretion.
I just want to make a couple of comments to Ms Cornwell. I appreciated all the aspects of your brief, and we've certainly heard them from some other people we've consulted with on this piece of legislation.
I have to comment on section 4, however, because I'm concerned that you're actually recommending we not proceed with this legislation because of some need to do different consulting.
I want to identify for you that in August 1995 I was in a meeting - and so was Madam Gagnon - that the Minister of Justice had with members of the affected communities who in fact asked us for legislation, knowing that education was an important component. I think some of the people who are in this room were at that meeting as well.
I also want to identify for you that first of all the recommendations of the Ontario task force have not been made public. So we can't in fact pay attention to their recommendations. It's unfortunate, but members who we've heard from have been on that committee and have given us their guidance. This committee is a process of consultation as well. We're making changes based on the recommendations.
The next panel after this panel is many of the groups you've identified as being ones we need to hear from. We're hearing from them. So I'm concerned that you're actually suggesting we should stop our work or stop this legislation for a different consulting process when first of all we've had a consultation process and we're continuing to have that.
I'm not sure whether it was an unwarranted shot on our minister. That really isn't fair. I want you to comment on that.
Ms Cornwell: I believe, as you say quite rightly, you will be hearing from Women's Health in Women's Hands and the FGM Legal Community shortly.
Ms Torsney: Also, the Multicultural Council of Professional Women.
Ms Cornwell: I don't know who they are. I haven't consulted with them. But I have prepared my brief in close consultation with my colleagues from the affected communities and I'm supporting this recommendation of theirs.
Ms Torsney: Is it to stop the legislation, the process we're in now?
Ms Cornwell: I believe that it's many of the things you have already mentioned, all of these issues about hermaphroditism and many other issues. There are certain cosmetic surgeries to the labia being carried out now in Canada. I think you will find they will be addressed more completely in the next session of this group.
Ms Torsney: I just have to ask you specifically again. In your recommendation number 4, are you really saying stop this process, wait, do different consultation and come up with a different piece of legislation? What are you recommending?
Ms Cornwell: Come up with a specific piece of legislation dealing with female genital mutilation.
Ms Torsney: Do you want to stop this process? Do you not want this law passed? Is that what you're telling me?
Ms Cornwell: Yes.
The Chair: Thank you, Ms Torsney.
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I just want to ask one question. First of all, Ms Tripp, I was remiss at the beginning in not offering the condolences of all of my colleagues here on the committee with respect to the loss of your staff people. I was aware of that this morning and it just escaped me, as unpleasant things often do. So I apologize for that. Certainly it's a tough time for you. We appreciate that.
You mentioned a request for an amendment to specifically address the Canadian military. I just have to ask you if do you have any anecdotal or other evidence of Canadian military being involved in this kind of activity abroad. I asked this the other day of another group, but I would like to know if you do have specific or anecdotal evidence.
Ms Tripp: It's more anecdotal at this point. I was involved in a discussion in Geneva this past summer. It became quite evident that some people have watched the situation. In Cambodia, where I can speak about troops in general but not Canadians specifically, we clearly saw the correlation between not just prostitution but child prostitution and the military.
The Chair: Were there Canadian troops there?
Ms Tripp: I can't say for sure. That's why I'm not specific to Canadians.
I wanted to follow up with Mrs. Gagnon in terms of guidelines she had mentioned. This is another area where we will follow up and find out.
What we're trying to do is take preventative action here. With all due respect, I think we have come to realize over the last several months that our military are not as bright and shining as we maybe always thought they were.
Given what has happened in Somalia, we're saying we need to have prevention here so that when our troops are part of a UN force or possibly even something like this multinational force we hope will be in central Africa soon, they clearly are reminded or know about legislation that can impact on them as well, that they are not free from this if they should participate in these activities.
The Chair: The problem is that you're leaving an inference here, that somehow you know or you think that Canadians are involved in this activity. I want to know if that's what you think or that's what you know, because I don't think you can just leave those inferences hanging out there.
Ms Tripp: Right, okay.
The Chair: Do you have any anecdotal or other evidence or information of Canadian troops being involved in child prostitution abroad in any theatre?
Ms Tripp: No, I do not at this point have that.
The Chair: Thank you.
I wanted to keep going with this panel, but the problem is that we have two other panels coming. So I think we've got to break. We'll rise for five minutes while our next witnesses come forward, keeping in mind that we're a half hour behind now.
Mr. Telegdi (Waterloo): Madam Chair, just on a point of information, there is a book called Tarnished Brass. It's a recently released book and it leaves the inference that one of our peacekeepers was involved with a 17-year-old girl in Croatia. Actually it was alleged rape, and the outcome, as suggested by the book, was rather unsatisfactory. I just bring that to your attention so that you are aware of it.
The Chair: Thank you.
We'll rise until 11 a.m.