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EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 26, 1996

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[English]

The Chair: We're back, as you can see.

A judge in Windsor, Mr. Justice McMahon, used to call me the late Mrs. Cohen because I was always late when I was practising law there. I do seem to have trouble keeping us all under control here, but we're still dealing with Bill C-27.

Our witnesses today are Claire Dubé, who is from Service d'information en contraception et sexualité de Québec, and Lorraine Dion, who is the coordinator of that program. With us from the FGM Legal Community Committee are Fadumo Dirie, who is with the community health education section, and Wumbui Gaitho, who is a member. From the Multicultural Council of Professional Women we have Jasna Teofilovic-Bugarski, who is a member. Here from Women's Health in Women's Hands are Khamisa Baya, the community health educator in the FGM Eradication Programme, and Mary Beny, who is a member of the board of directors.

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I want to welcome all of you. You've been watching, so you can see what our drill is. If I could ask Claire Dubé and Lorraine Dion to begin, that would be helpful. Thank you very much.

[Translation]

Ms Claire Dubé (Coordinator, Service d'information en contraception et sexualité de Québec): Good morning. First, I would like to introduce our organization, which is the Service d'information en contraception et sexualité de Québec. This is a community organization that has been working in the area of reproductive health care since 1963.

The organization has two main objectives: to raise public awareness in matters of reproductive health - contraception, fertility, menopause, premenstrual syndrome, etc. - and sexuality. It is also our role to support stakeholders working in this field. In our presentation, we will remain within our area of expertise which is reproductive health. We know that sexual mutilation has an enormous impact on the reproductive health of women.

Other witnesses are more capable of discussing legal issues with you. We are both nurses who have expertise in reproductive health care and it is in this capacity that we are presenting our views. As part of a university course on culture and sexuality, I conducted research on this phenomenon.

In the course of our work in Quebec City, we've occasionally had dealings with African women. We were able to discuss matters of contraception, menopause, and up to a point, violence against women with them, but it was impossible to broach the subject of genital mutilation. It is as if there was a barrier between us. It is not an easy topic. I've discussed this with women in the Quebec City region, and many of them are unable to talk about it.

Excision, circumcision and infibulation are all terms that designate genital mutilation which victimizes 80 to 115 million women in over 30 countries. There are no statistics anywhere on mortality nor are there any systematic studies of the consequences of these practices, which allows those responsible to deny their existence. One can travel throughout Africa without obtaining any clarification on this custom which victimizes millions of women. Everyone answers ``That doesn't exist here''.

And yet, there is not doubt that excision is an ancient custom, although there are different assumptions about its origin. Some say this goes back to the ancient Egyptians. Indeed, many mummies have been found to be excised and sometimes even infibulated. In any event, amputation of the clitoris predates Islam, and even though Mahomet did nothing to eradicate the practice, it would be unfair to attribute this to Muslim countries only. It obviously remains more widespread in Koranic countries, where women have virtually no independent existence.

Genital mutilation currently affects between 85 and 115 million women worldwide. I repeat this because I think it's very important. It can be said that this is a problem that has existed since the dawn of time. The first reference to it goes back to the ptolemaic era in an Egyptian text. The first mention of infibulation is apparently attributed to a traveller and dates back to the 15th century.

As performed at any time between the earliest days of life up until adulthood, genital mutilation essentially takes two forms:

- In animist cultures, there are often ritualized excisions that are part of initiation rights. These ceremonies are collective and done according to a very rigorous calendar, just before puberty.

- In Muslim cultures, excision and infibulation are performed individually without any particular timetable and can be done in the postnatal period, that is on babies up until the eve of puberty.

There are three varieties of female circumcision. I'm using a term that is often referred to in the literature. I don't think there is any comparison between male circumcision and what is referred to as female circumcision.

The first form is the minima excision or ``Sunna circumcision''. The Arabic word sunna means ``tradition''. It consists in amputating the prepuce and tip of the clitoris. This is done mainly in Muslim countries.

The second form, called ``excision-clitoridectomy'', involves the amputation of the clitoris, the surrounding tissue, and all or part of the labia minora. It is widespread in animist, muslim and even christian cultures in intertropical Africa.

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The last variety is infibulation which is called ``pharaonic circumcision''. After removal of the clitoris, the labia minora and the labia majora, only a small hole remains to allow for urination and menstrual flow.

These mutilations are heavily laden with complications. The immediate complications that are found most frequently are operative shock, haemorrhaging and urinary disfunction.

Infection affects 25% of infibulated girls. Later complications can involve scarring of the vulva, abscesses of the vulva, clitoral cysts, uro-genital infections and fistulas, not to mention pain during coitus, that is during a sexual intercourse, and tearing during childbirth. These complications affect 33% of infibulated women.

The geographical area involved, as shown in the table in appendix, has not changed very much over the centuries. It is almost exclusively in Africa and is located in the vast sub-saharan zone between the Tropic of Cancer and the Equator. The two asian locations correspond to muslim societies, whereas the only place this is practised in South American is located in animist communities that are partly Christian.

There are also other forms of sexual marking. One may recall tattooing among the Inuit and the giraffe women of northern Burma whose head rests on a tower of copper rings 40 to 50 centimetres long. The list could go on and on with many other examples.

I would now like to present certain practices in three specific countries. Egypt, Sudan and Somalia.

Genital mutilation in all its forms has been practised in Egypt for millennia. In southern Egypt, infibulation is a traditional practice that remains very much alive today. Among the Copts, who represent 15% of the population, excision is done on most little girls. According to a survey conducted in Alexandria, most of these operations take place in the parents' home. Generally speaking, one child is operated at a time, though sometimes sisters or cousins are operated together. The operation is performed by a ``daya'', a traditional midwife, but a certified midwife or even a barber can also be called upon.

The most serious operation, infibulation, also called pharaonic circumcision, is very widespread in the Sudan, including in the twin cities of Khartoum and Omdurman. These operations are profoundly anchored in sudanese life and traditions. The family celebrates the operation with the active participation of friend and family. On the day of the operation, a young sudanese woman puts on her most beautiful clothes, adorns herself with rings and jewellery, and is called ``the fiance''. She is also given gifts. A single term is used to designate all the side effects: it is said that the young girl has been ``summahpaha'', that is, beautified.

After the operation and before the little girls are allowed to rest, the custom is to bring them to the shores of the Nile or the nearest river to ritually wash their hands and face. This is thought to facilitate menstruation and allow the young girl to find a husband quickly. After these ablutions, the young girl's legs are tightly bound. They will remain so for the next 15 to 20 days or until complete healing of the wound. Sudanese midwives play a very important role in this. They excise, the infibulate, and during childbirth, they perform operations due to genital mutilation. It is often their task to open young brides.

In the Sudan, there are also women whose faces are disfigured by ritual scaring.

In Somalia, little girls are operated on between 5 and 8 years of age. These operations can be individual or collective. The little girl must squat on a stool or mat. One women holds her from behind, immobilizing her arms. Two other women hold her legs to prevent her resistance. The woman performing the operations sits in front of the little girl an cuts off her clitoris, her labia minora and the inner walls of the labia majora with a razor blade. Using three or four thorns, she pierces the opposing sides of the labia majora and ties the thorns together with a rag or string. She covers the wound with a mixture of sugar, gum and myrrh. Blood mixes with this paste which sticks to the rag and thorns, which eventually forms a scab that stops the bleeding.

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The little girl's legs are then bound from her feet to her hips. She's made to lie on her side. The wound is cauterized and herbs are applied that are thought to have haemostatic and curative powers. In order to prevent the little girl from having bowel movements too often, she's placed on a strict diet. In addition, she is only allowed to drink a few sips of water at a time. Fumigations are done to chase away evil spirits as well as bad odours.

Michael Erlich, a physician, ethnologist and psychiatrist, explained that this operation ``closes'' the vulva until marriage and on that occasion, requires a bloody reopening of the genital passageway, called defibulation, which traditionally is to be performed by the bridegroom on the wedding night, but is more often performed by a matron or a physician. In the course of her lifetime, it is not unusual for a woman to undergo several successive partial infibulations. The sutures of the vulva by matrons immediately childbirth allow for a narrower vaginal orifice, a quality that is highly prized by men, and here I quote Mr. Erlich.

Let us now examine the consequences of these mutilations. Genital mutilations have grave and immediate consequences on the health of women and girls; surgical shock, haemorrhaging, urinary dysfunction, infection. Some little girls and young girls die after these operations. Later complications are scarring of the vulva, abscesses, cysts and urogenital infections.

In the case of infibulation, women must be subjected to major pain during sexual intercourse and a great risk of problems during pregnancy and childbirth because of the poor condition of perineum. It is impossible to know the exact number of women who have died following these practices.

In the Sudan, during a survey conducted by World Health Organization in 1983, certain doctors estimated that one third of excised women in regions where antibiotics are unavailable died following the operation. Almost all the women questioned stated that they had urinary difficulties before their labia were opened, at marriage. Those who were still virgins said that they needed 10 to 15 minutes to urinate and some said that they required two hours to empty their bladders.

When an excised woman marries, her husband must open the passageway, which is usually difficult. Sudanese women have stated that the process of progressive penetration, which can last up to two months, was extremely painful. Tearing of surrounding tissue, haemorrhaging and infection are common occurrences. Among the women questioned, 15% stated that penetration was impossible. When these women become pregnant, most need surgery during labour to allow childbirth, because the scars from the excision prevent normal dilation.

One can imagine that the physiological and emotional consequences of this operation are serious and go well beyond frigidity. Few studies have been conducted about the effects of these mutilations on the sexuality of these women. Interviews conducted in Sierra Leone with 130 women revealed, however, that the more major the mutilation, the greater the loss of sexual sensation. None of the women questioned experienced intense stimulation during sexual relations.

As Benoîte Groult put it, the entire life of an infibulated woman takes place under the knife: she must be ``reopened'' on her wedding night, just enough to allow her husband to penetrate her, opened more widely during childbirth because the scar tissue refuses to dilate, then closed up again for her partner's pleasure.

Female mutilation is a form of violence. Its function is to mark the inferior social role of women among certain people. Excision used to be considered as an initiation test before marriage. A young girl had to learn to endure pain to prepare her for the pain she would undergo during her life as a married woman.

According to deep rooted beliefs, the clitoris which is the male part of the woman must be removed. Women are told that such practices are essential ``in order to preserve purity and virginity before marriage and to continue to be accepted by the community'', as was noted by Khady Koeta, who lives in France and who was excised at the age of 7. It is also claimed that these practices increase fertility and allow for better hygiene.

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Religious reasons are also given, although there is no mention of such practices in sacred writings. Several authors are of the opinion that the main reason for this mutilation is to decrease women's sexual appetite.

The cultural belief in Sudan is that people are born with two sexes. The clitoris is considered to be a foreskin attached to the woman's vagina. To restore a woman's full femininity this vestige of the male sex must be removed. The ethnologist Suzanne Faizang claims that it also signifies the removal of the power located in the clitoris; women who have a clitoris are supposed to wear the pants in the family taking over their husband's authority. In some cultures women who are not excised have trouble finding a husband.

Other reasons are mentioned in justification of the practice: the need to purify the woman, to control her sexual impulses or simply to maintain tradition. The social marking of women by sexual mutilation is most often practised by other women. These women who are the guardians of the tradition of their society are at the same time, according to Winter, accomplices in their own oppression and that of their daughters.

In accordance with the Quebec Council on the Status of Women, we consider that no custom or tradition can justify the sexual mutilation of women and girls. African women's associations are working in their own countries to eradicate these practices. Some African heads of state have taken a public stand against genital mutilation. Several states have adopted laws prohibiting these practices but in the absence of wide-reaching awareness campaigns they have little effect.

The United Kingdom, Switzerland and Sweden have adopted legislation explicitly prohibiting female genital mutilation. However the laws have not yet been applied since preference has been given to informing and sensitizing communities on this issue.

In France, there is no legislation as such but parents and women who do such excisions have been prosecuted for child abuse.

In a research paper on female genital mutilation, the Canadian Advisory Council on the Status of Women notes that almost 400,000 people who are originally from continental Africa where such mutilation is practised settled in Canada between 1986 and 1981. The Council maintains that there is a serious risk of seeing such customs transplanted to Canada.

As native born Quebec women, we consider such practices to be unacceptable. We think that it is important to inform the population in order to put an end to this mutilation of women's bodies. In our view, the best way to do this is to provide information and make people aware of the issue, emphasizing the very harmful consequences of mutilation on the physical and psychological health of women and girls and the need to respect them for what they are.

In view of our expertise in reproductive health, we think that awareness programs should be implemented in close cooperation with the communities concerned.

We also believe that the adoption of specific legislation to prohibit mutilation can also contribute to putting an end to such attacks on women's integrity. The coming into effect of this law could encourage the provision of health services specifically adapted to women who have been excised or infibulated.

We both believe that this is a scourge on women and as women we are concerned. We are convinced that men and women must be educated to bring about a change in attitude. We realize that the process will be long but it is worth the effort. Thank you.

[English]

The Chair: Thank you.

Can we hear now from the FGM Legal Community Committee?

Ms Wumbui Gaitho (Member, Female Genital Mutilation Legal Community Committee): Thank you, Madam Chair and members of the standing committee.

The Chair: Can I ask a favour here just before we start? Believe me, this is not to take away from anybody's ability to communicate to the committee. We really do want to hear from you, but I think the committee has a pretty good grasp of what FGM is, what its manifestations and that sort of thing are. We're really very interested in hearing your concerns about our legislation. If we can focus on that, it would be helpful to us in terms of time.

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Ms Gaitho: Thank you. I'd also like to take a minute to thank Madame Gagnon for her support.

We were encouraged by the invitation extended to our community representatives to appear before you to present both a brief on this sensitive and painful issue and our concerns regarding the proposed amendments. We're planning to look at four sections, one that will give a little of who we are and our history, one woman's personal testimony, and some concerns and recommendations.

The Female Genital Mutilation Legal Community Committee is a diverse crossroads women's group whose members are of African, Middle Eastern and Asian background from the Greater Metropolitan Toronto area. We are Canadians who are engaged in the prevention and eradication of female genital mutilation through education and advocacy. Our mandate is to develop strategies through a joint community-government committee to advocate for appropriate female genital mutilation legislation to use as an educational tool and a deterrent towards an eradication of female genital mutilation. We're starting to develop advocacy strategies for the release and implementation of the Ontario FGM prevention task force report.

The committee was formed in January 1996, when the federal justice minister issued the new proposed amendment regarding FGM and Bill C-119, which has been renamed Bill C-27. The Ontario provincial ministry responsible for women's issues failed to release the Ontario FGM prevention task force report, which was completed by July 1995, and that was also one of the other reasons we were formed. The FGM Legal Community Committee and the community at large, with its constituency of activists that includes community workers, nurses, mothers, doctors, gardeners, engineers and other concerned citizens, were not invited for consultation by Justice Canada before the proposed amendment, Bill C-119, now renamed Bill C-27.

FGM is the removal of or injury to any part of the female genital organs - and this gets into the history of it, and in some ways the definition. There are various types of methods of female genital mutilation, and the procedure can be and is performed at different age ranges of a girl child or woman.

We, the women from the affected community, initiated the FGM eradication process in Canada, advocating as early as 1990 for new legislation for the prevention and eradication of the practice of FGM. The community's first efforts succeeded in having the College of Physicians and Surgeons of Ontario inform the doctors of Ontario that to perform FGM would result in a charge of misconduct. Federal advocacy led the federal Minister of Justice to issue the statement in 1994 that FGM was considered an offence under sections 267, 268 and 269 of the existing Criminal Code.

During this period, the community also initiated the Ontario FGM prevention task force, which was a community-government task force, and the first of its kind in the western hemisphere. The federal government was represented ex officio on this task force by Justice Canada, Health Canada, the National Action Committee on the Status of Women, and the Canadian Advisory Council on the Status of Women. It is our hope that you have access and reference to the report from the above-mentioned task force.

Ms Fadumo J. Dirie (Community Health Education, Female Genital Mutilation Legal Community Committee): The following is testimony of a woman's story, of her pain and sorrow. Describing a woman's most private and intimate area and experience with female genital mutilation is a very difficult and painful process. For you to understand the pain and the deep-rooted complexity of social, economic, educational, cultural and political issues the women have to deal with, we ask you to listen to and contemplate one woman's experience.

The following is Badria's - not her real name - testimony. She is a middle-aged woman and mother of six children, and her testimony is translated.

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Ms Gaitho: The community has concerns about and recommendations for the proposed amendment, Bill C-27.

Female genital mutilation is a violation of human rights. It's a violation of women's inherent human right, that being a fundamental right to live as a whole human being. This is a recognition of the fact that the constitution of a female human is genetically programmed and is identically reproduced in all embryos and in all races, as quoted from a scientist.

Female genital mutilation is violence against women's physical and sexual integrity. A potential loss of sexual function constitutes a violation of the right to physical and mental health. FGM is a critical health issue and it has long-term health effects on girls and women.

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FGM is a violation of the rights of children. Under the international Convention on the Rights of the Child, every child has a right to gender equality and to freedom from all forms of mental and physical violence to the highest obtainable standard. Article 24.3 cited) of the convention explicitly requires the member states to take effective and appropriate measures to abolish traditional practices prejudicial to the health of children.

Female genital mutilation is also a form of gender discrimination against women in both private and public life. It is entrenched in the political, social, cultural and economic structure of the societies in which is practised.

All of the above-mentioned rights are protected by several universal declarations, as noted in the preamble to Bill C-27, yet currently not reflected in the amendment. The community recommends that in amending or drafting new legislation, female genital mutilation will be unequivocally prohibited with no exceptions. A woman's sexual integrity should be respected and decreed an inherent human right, and the emphasis of this right should be reflected in the amendment. Health is a human right and there should be no therapeutic excuse to be invoked with human genital mutilation. And section 273.3 of the Criminal Code, which contains provisions concerning the removal of a child from Canada, needs amending to include ``at any age''.

As the chair pointed out, we have all heard a definition of FGM. We recommend a clear definition of FGM to read as follows, because even though we've all noted that it has been stated, the bill seems to have missed its definition:

- Female Genital Mutilation is the removal of or injury to any part of the female genital organ.

- Infibulation is a rare type of female genital mutilation whereby the vulva is intact, and sometimes the clitoris is partially removed or pricked to induce bleeding and then the vulva is stitched together.

- Re-Infibulation is the stitching together of the vulva after vaginal delivery to make the vaginal opening smaller for male sexual pleasure, long absence of the husband or because of divorce or cosmetic purposes.

These clear definitions and descriptions leave no room for ambiguities and loopholes for legal application, but do provide for the education and eradication process. In terms of the codification of the therapeutic excuses for FGM, given the past and present attitude of the health profession toward the sexual integrity of women, we are concerned that the inclusion of the specific therapeutic difference for FGM would open the door to a medicalized and consequently normalized practice of FGM. There is a universal commitment to advancing the health and protect the lives of women and children, including their reproductive and sexual health. FGM must not be institutionalized, and no form of FGM shall be performed by any health professional in any setting. There should not be any codification of special therapeutic defences since this would open the door to a legally protected, widespread practice of FGM - and for further details, you can refer to our brief.

On the question of consent, to infer that one can consent to mutilation after 18 years of age is totally unacceptable. One can never consent to the violation of one's human rights. Violence against women and children has no age of consent - and again there are further details in our brief.

The ambiguity of the British and American anti-FGM laws has done nothing to prevent the practice of female genital mutilation. Canada will be the first country in the western hemisphere to establish a unique position by not taking the ill-advised approach of Britain and the U.S., but rather by following the direction established by the United Nations and World Health Organization, thereby developing a unique set of laws and education policies against the practice of FGM that are aimed towards preventing and eradicating FGM in Canada.

We strongly appeal to you, the standing committee, to consider our recommendations. We urge the government to form a joint community-government committee that would explore appropriate and effective legislation that protects the human rights of children and women and their sexual integrity, health and gender equality, thus breaking the cycle of violence against women and girl children.

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The FGM Legal Community Committee, as part of our mandate to eradicate female genital mutilation, and in fulfilling our duty and responsibility as citizens, demand our rights as citizens of this country to be part of the decision-making process, using our expertise and experiences in the determination of female genital mutilation legislation that so vitally affects our lives.

Community consultation is a democratic right. The government representing us should have a community agenda. So far this process has lacked the right to inclusiveness and recognition for accountability to the community. This undermines the principle of community development, the spirit of community participation and ultimately the spirit of the democratic process.

The Chair: Thank you. I note that you have included the Ontario FGM prevention task force report in your brief. It's the first time I've seen it.

[Translation]

Ms Gagnon (Québec): Do you have the report?

[English]

The Chair: Yes, it's included in the brief.

Mrs. Gagnon: Okay.

The Chair: Next is the Multicultural Council of Professional Women.

Ms Jasna Teofilovic-Bugarski (Member, Multicultural Council of Professional Women): Good morning, Madam Chairman and ladies and gentlemen.

I would like to give you the brief meaning of our organization and what we are doing. We are an organization of women who have education, experience and training in different countries, including Canada. The present membership includes women from a wide variety of ethnic backgrounds and professions. We have about 200 members from all over the world, including Canada.

Our main objective is to provide necessary resources that will enable professional multicultural women to overcome systemic barriers in the job market, allowing them to find employment for which they are qualified and to actively participate in Canadian society. We mainly deal with accreditation. That's our main mission statement, but we were very glad to be asked to give support, through Madam Gagnon, to this bill.

Our approach was really unprofessional in a sense. We were trying to see what benefits we can get from this law - really get, I mean. We are dealing with a tradition that is not known to many of us. I spent five years in Africa and never heard that it existed. My first encounter with female genital mutilation was through the book by Leon Uris, Haj, in which he describes how it's done. I never finished the book because I just couldn't read it.

We do have members from Africa and Asia, but nobody stepped in to explain. We had to inform ourselves and to get to know what it is, and to see what, by law, can be done. We are very much in agreement that it's sexual and mental harassment of children. We don't have any problem with that.

We had to also find out what the Canadian law covers. People get really touchy about who is responsible, from where it starts. It had to somehow be made clear who is responsible for the deeds, which provoked concern for members of families who are going to be punished, who can be sentenced for the deeds, because usually those acts include family members as well.

Our main concern was and is about the consent of an adult person. We are extremely frightened that the same argument can be used for the abortion issue. For people who are not pro-choice.... In the case of abortion, the consent of an adult female person can be taken seriously. We cannot protect one from oneself. If you are an adult, if you are over 18 years of age and you have an informed explanation of what is going to be done to you, I think nobody has the right to take the right of consent of an adult person. Is it good for her or not good for her, that's the question.

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But you start chipping at the right of consent. It comes from a lot of other sides trying to be chipped as well. We don't have a problem with punishment or jurisdiction, and we don't have a problem that it's against the children, and it's mainly done to the children. The only concern we really have is the consent of an adult person. We think it should be qualified, medically explained to women who are sexually active that it can't be done. When we were talking about these, they should know what they are doing to themselves. But we had a very big problem with that. We agree with the law and we agree with punishment for doing that to the children. We don't have any problem. Only that area is very touchy to us.

The Chair: Thank you.

From Women's Health in Women's Hands we have Khamisa Baya and Mary Beny.

Ms B. Khamisa Baya (Community Health Educator, FGM Eradication Program, Women's Health in Women's Hands): Like my colleague here, I'd like to thank Madame Gagnon for her concern about female genital mutilation, and for putting forward the bill, which started out as Bill C-27 and got this into motion.

A lot of what I wanted to say has been touched upon. I would like to request that our brief be attached to the Minutes of Proceedings and Evidence, but I will cover some sections of it.

We're pleased that the Government of Canada has finally proposed legislation to criminalize female genital mutilation through the provisions in Bill C-21, and we applaud the general principle of the proposed amendment. We commend it for its concern and attention to the issue of violence against women and children in general, and the specific issue of female genital mutilation in Canada.

I won't say much about FGM. I think the definition and everything has been covered here. I would just like to say that it's a practice that crosses geographic, religious, ethnic and cultural boundaries. It's a very complex social problem and we shouldn't minimize its complexity.

I'll briefly look at what we see as problems with the bill and what our suggestions will be. I'd like to start off by saying that Women's Health in Women's Hands - and I refer you to the brief - has been doing a lot of work in the area of female genital mutilation. I think we are the only community health centre that has a designated staff position for FGM eradication.

The fundamental basis of our work is that female genital mutilation is a specific manifestation of violence against women that violates their fundamental human rights, that it is a critical health issue for girls and women, and that it violates the health rights that have been enshrined in international human rights instruments. It is a form of physical child abuse that contravenes the spirit and the letter of the convention on the rights of the child, and it it's a violation of women's physical, mental, sexual and reproductive integrity. So I want it to be very clear that this is our position.

One of the initial things we realized from feedback from the community is that despite the fact that FGM is very complex, varied and multifaceted, it's reflected and experienced differently in and by each community in which it's practised. The consultation process that led to the formulation of this bill did not seem to have adequately canvassed these diverse communities in terms of reflecting the different concerns in this bill. As a result of this, there are certain gaps that need to be addressed in the proposed amendment and that we are concerned may undermine the general intent, which is a good one.

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The first issue we had was the definition of FGM as an infraction in Bill C-27. The definition ``wounds'' and ``maims'' in proposed subsection 3 of section 268 as inclusive of ``to excise, infibulate or mutilate'' implies that excision and infibulation do not constitute mutilation. In fact, excision and infibulation are specific acts of mutilation. In addition, FGM procedures vary quite widely. There are three main types, but there are a lot of variations of those three types.

We think it's very important that this should be taken into account in any definition of FGM for the purposes of criminal prosecution, and that the language used needs to be structured in a way that enables a definition to encompass all of the various forms of FGM. To that end, we suggest the proposed phrase ``for greater certainty, in this section `wounds' or `maims' includes to excise, infibulate or mutilate'' be replaced with the phrase ``for greater certainty, in this section `wounds' or `mains' includes to excise, infibulate, reinfibulate or otherwise mutilate''. This should be able to capture the different variations of the three main types of FGM that are not expressly stated in the definition.

The second issue we had a serious problem with was what we see as the codification of a therapeutic defence in this amendment, and the potential of that to medicalize FGM. We argue that this exception leaves loopholes for interpretation, and that it's premised upon the absence of a clear distinction between FGM, which by definition and in practice is a mutilation of normal and healthy female genitalia, and pathologies of female genitalia that may call for legitimate medical or surgical intervention. We feel that this distinction is crucial because it negates the need to codify, to put special provisions in this bill.

We see this as a very serious problem. First, it's redundant, because section 45 of the Criminal Code - surgical operation - already provides for that. It reads:

(a) the operation is performed with reasonable care and skill; and

(b) it is reasonable to perform the operation, having regard to the state of health of the person at the time the operation is performed, and to all the circumstances of the case.

Given that there is already a specific provision in the Criminal Code that covers surgical operations, we do not see the need to do this again in a very specific sense in this particular amendment, and we recommend that this be deleted from that section. Again, we've set out other arguments with regard to this, and you can make reference to our brief.

One of our concerns was that given that there are lawful sexual or genital surgeries that are taking place, the distinction in terms of actual practice may get blurred. We do not want to see this exception codified here when it's already provided for elsewhere in the Criminal Code. Again, the arguments are set out in our brief and you can make reference to that.

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A third area where we had a problem was the issue of consent. Proposed subsection 268(4) provides that no one under the age of eighteen can consent to FGM. We see that this provision introduces a real and dangerous possibility that the Criminal Code could be interpreted as implicitly allowing adult women to consent to having their genitals mutilated. We argue that there are several problems with this notion.

First of all, if you look at international human rights legal instruments, from that perspective, female genital mutilation is a violation of women's fundamental human rights and it constitutes violence against girls and women of all ages. The preamble to Bill C-27 recognizes this. It says: ``violence against women both violates, and impairs or nullifies, the enjoyment by women of their human rights and fundamental freedoms''.

We argue that since victims of human rights violations cannot be deemed to have consented to their abuse, the same logic would dictate that women cannot legally consent to FGM because its practice constitutes a violation of their fundamental human rights.

If you turn around and look at Canadian common law, that law directs that consent is not a defence where bodily harm of more than a transient nature is involved. For instance, common law has not allowed adults to consent to assault. FGM involves varying degrees of irreversible, permanent damage to the genitals of girls and women, which generally has lifelong health consequences for them. Common law considers it contrary to the public interest that people be maimed and wounded with their consent, and the courts have ruled that individuals cannot consent to being the victims of such bodily harm of more than a transient nature. If we use this reasoning, women cannot consent to FGM because it inflicts serious and sometimes fatal bodily harm.

There have been precedents, which we have quoted in our brief and you can look at, in terms of Canadian common law. There is one case we have quoted here of sadomasochistic sex in which the woman was seriously injured. The court ruled that regardless of whether or not she consented, given the extent of the injuries, consent could not constitute a defence. We've outlined some of the precedents that are there in common law, and you can make reference to our brief.

What we then suggest is that proposed subsection 268(4) be replaced with the following:

That would mean we would want proposed section 268 to read as follows:

There are other problems with the issue of consent to FGM, and we have outlined them in our brief. Again, you can make reference to that.

The implicit assumption that women can consent to this violation of their fundamental human rights - and we've all heard the testimony from different people about what this injury really involves - we have serious concerns with that. At best it creates a specific defence of consent for those accused of aggravated assault in performing FGM on adult women. At worst this provision removes the criminal nature of FGM if performed on adult women, since such mutilation would be seen as having been consented to by the woman, thus making it no crime to do this.

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What we say is that this could potentially establish a dangerous precedent whereby parents may circumvent the law by simply waiting until a girl is 18 years of age and then compelling her to exercise her right of choice to undergo FGM in a medical setting. Far from deterring this social practice, the fact that this loophole exists could result in its reinforcement. It's something that could potentially happen: parents could simply wait until the child is 18 years old. We know there's a lot of social pressure, family pressure, that is involved in female genital mutilation. This provision provides a loophole for that sort of thing to happen.

The other concern we had was with the criminal prosecution and sentencing. We don't have any problem with the maximum penalty of 14 years in prison for a person found guilty for the infraction of FGM. We do concur that this is appropriate for the person who commits FGM for financial gain and has no qualms about the irreversible harm to the child or woman's physical, sexual and mental integrity. But we have serious reservations about the impact of such a harsh sentence when imposed on those who are accomplices, and this would generally be parents or guardians. Our concerns relate to the best interests of the child.

I think the state has an interest in maintaining the stability of a family, keeping a family together. FGM is an unusual form of physical child abuse in the sense that once it's happened it's not going to happen again. It happens once and that's it. It happens in the context of an otherwise usually loving family, and it doesn't really reflect on the fitness of a parent, etc. Therefore, we really need to look seriously at the best interests of the child when we look at what kind of criminal prosecution and sentencing should be there for parents. Again, I would ask you to make reference to our brief on the various issues we have outlined there.

When we looked at the different issues we found of concern, we felt that the recommendations I have just outlined improve Bill C-27 but that it doesn't address all of the concerns we have. The question of the range of consequences for children of criminal prosecution and imprisonment of their parents cannot be accommodated under the aggravated assault provision of section 268 of the Criminal Code. We feel the logical conclusion is that because FGM is a particularly unique type of crime, it requires a specific and carefully tailored legislative response. We would like to propose that a specific or precise infraction of female genital mutilation be introduced in the Criminal Code. We've outlined in our brief what we think would be some of the elements that would go into this specific crime.

One of the reasons we think this is important is because of the importance of the educational function of the criminal law. We think the educational function would be served better if it was more specifically tailored than when it's piggybacked on aggravated assault. Again, the arguments regarding this are laid out in the brief, and the advantages of having specific legislation dealing with FGM are set out here.

What we would really be asking for then is for the government to initiate a joint government-community consultation process to deal with the issues we raise in our brief. We argue that FGM is very complex. We feel strongly that the sheer complexity requires the development of a measured and tailored legislative response in collaboration with the different communities impacted by FGM. I say communities, because it's experienced differently in the different communities.

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The grassroots consultation implied by such a jointly coordinated process we feel would open avenues to explore at greater length the exact design or blueprint of a specific infraction of FGM, appropriate sentencing regimes and alternative sentencing proposals for accomplices, mainly families, to the offence of female genital mutilation, and the development of educational strategies for the various communities impacted by FGM and for service providers.

We suggest that such an undertaking would benefit greatly from replicating the structure and process used by the Ontario FGM prevention task force. I think the brief submitted by the FGM Legal Community Committee has attached the report of the task force and the process that was used, etc.

We feel that such a consultative process would enable the government to address FGM separately in a new bill. Given that education is the cornerstone of the fight against female genital mutilation, a tailored legislative response to FGM has a crucial importance of allowing the law to be used much more effectively as an educational tool in the prevention and eradication of female genital mutilation.

Thank you.

The Chair: Thank you very much. And I thank you all for editing your presentations on the fly. It is helpful to us.

[Translation]

Ms Gagnon, you have five minutes.

Ms Gagnon: I'd like to thank the representatives of the different organizations for their testimony. I'd also like to say to Ms Dirie that I listened to her testimony on the different consequences of this practice with respect, compassion and emotion.

I'd also like to say that the purpose of my bill was to bring about an awareness of the violation of women's rights and physical integrity. It was important to defend this idea, but I realize quite well that the bill is not easy to discuss and to implement, as you mentioned yourselves. It is very difficult to have testimony and one feels a certain discomfort that I can understand. There are various reasons why it is difficult for us to deal with this issue.

Personally I wanted to establish a link between this practice and violence against women. I can remember that when the subject was first raised, women themselves did not want to talk about it. At the present time we hear all sorts of testimony from women, even the older ones. Culture, tradition and various other reasons combined to make this a taboo subject. Our grandmothers never told us that our grandfathers hit them when they were young. My idea then was to bring this out into the open.

By discussing it we can create a certain openness and I am sure that ten years from now there certainly will have been some evolution, if only in Quebec. I'm not making any distinctions here between women born in Quebec and Quebec women of ethnic or foreign origin, because I'm interested in defending all Canadians, both men and women, and all Quebeckers, both men and women. Those who come to live in a different country must realize that some of their traditions and cultural practices are unacceptable in our society. You are now part of our society and in this spirit we must work together, while at the same time respecting your values and culture. I know that you yourselves are working very hard on this.

You thanked me for presenting a private member's bill. I do think that it has made the government move on this matter. That is the reason we are discussing it here today. And it is also thanks to you, because I asked the organizations that were closely or remotely concerned with the problem to become involved, and a great many of you responded to my appeal. I sent on to the minister all the letters of support that I received from you on this bill.

I will not go over all the aspects of consent, the therapeutic defence and the widening of the definition. I am certainly very much aware of these aspects and I think that there are people today who will be able to register your different concerns about the bill. I also wanted to say that we should not adopt the legislation as proposed by the minister since it is clearly inadequate in that it fails to send a clear message to the communities concerned with respect to the legal and medical aspects. I think that this must be seen as a whole.

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The intention of my bill was to include all of this. It also could have been amended. When a bill is tabled, there are certain aspects that may have been overlooked, and that is why we are asking for your contribution.

I do not intend to ask you any questions because I think that you have suggested precise amendments in the briefs you presented to us. As far as consent is concerned, I will not budge.

The Canadian Association of gynaecologists and obstetricians explained why a widening was required to allow for consent after the age of 18. I think that we need a bill with a vision taking into account the points you mentioned here this morning and for which I thank you. I think that you cast another light on the subject here, like the representatives of other organizations, and the committee will give consideration to your views. I think that this legislation is a step in the right direction.

You also refer to all the work to be done in education and I think you should be consulted. I'd like to thank you for the report that I intend to read with great attention. I think that with your practical expertise in the matter you can make a great contribution to improving the bill. Thank you.

[English]

Ms Dirie: Can I add a comment?

The Chair: Absolutely.

Ms Dirie: When we addressed the concerns of the bill, we were addressing that because that's the topic; otherwise we wouldn't be invited to come to this place. We have to address the concerns we have with the bill.

Really what we would like to come out of this consultation today is that because of the bill's many holes and the concerns we have and because it does not address the specific issue of cultural and other complex issues of FGM, our hope is the recommendation of a new bill, a new provision. To come to that and to back that up is a community consultation that will give suggestions the way we describe. We understand that we're not lawyers who design bills or laws, but we wanted to be present in a joint community with government to voice our concerns about why we want a specific bill, what the benefits are of a specific bill, and what elements should be included in that specific bill.

So really what we would like to come out of this consultation is if the committee can take our bill and read between the lines of what we said. We gave you suggestions for the amendment, but that's not what we wanted. We want a new provision of a bill and we want to be consulted on how to do it. This is aside from the sporadic consultations the government has done before with the community. This is a joint, specific government community. We have to make that message very clear.

I remember last time Madam Torsney asked specifically what this consultation is that we're talking about. Yes, we have been consulted sporadically. Yes, I came to address some of the members of Parliament last August when the Minister of Justice invited us, but that was an information session for the parliamentarians to give them some indication. It was not a community consultation.

We recognize that there has been community consultation, but that's not what we are talking about. We are talking about designing this new bill. If that's not going to be acceptable, at least we have to be present in amending this bill with a joint community government, as we suggested in the task for recommendations, which you have a copy of. I hope we made that point very clear.

The Chair: Thank you.

Mr. Ramsay, you have five minutes.

Mr. Ramsay (Crowfoot): Thank you. I want to thank the witnesses for their presentation on this rather barbaric practice.

Inconsistencies always bother me, and I see a conflict of interest here. On the one hand there is a clear repudiation of this act of female genital mutilation. On the other hand, and as a result of that, the government, together with the support of all members of the House, I think, will be moving to criminalize this act. At the same time, I hear at least an appeal to not go too hard on the parents, yet the area of parental authority is where the success lies of eliminating and eradicating this practice.

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So if the criminal sanction that is being implemented in this bill is not applied to the parents involved in a way that will create a deterrent, then I have difficulty understanding how this bill is going to bear the maximum benefit that I think the originators of the bill, the Minister of Justice and his officials, have in mind.

I'd like you to address both that and one other issue. Education is so important. Would you recommend that in the field of education on this particular practice, our immigration policy adopt an educational arm that lets parents from those countries where this practice is fairly predominant know that when they come to this country, if that practice is continued here there will be criminal sanctions and they may be liable under Canadian law? Do you feel that would be in the interest of moving this whole issue forward?

Perhaps I could have comments on that question and the other issue I raised in terms of the conflict of values with regard to the criminal sanctions on the parents.

Ms Baya: I don't necessarily see it as a conflict of values. I was not thinking in terms of going easy on the parents. My main concern was the best interests of the child or children involved. In general, these children come from loving home environments. The fitness of the parents is not in question. The nature of this crime is that once it happens, the child is not exposed to any further risk, and society has an interest in ensuring the best interests of children.

The question that I think needs to be explored and that we're asking to be reconsidered is that in the criminal prosecution and sentencing of parents, where do we put the best interests of children? Are we going to look at putting parents in jail at the expense of their best interests? How do we balance the best interests of children? Yes, that is the question. I think that question is on the table, and it needs to be explored.

Again, we feel this is something the government and the communities involved need to work together on in terms of reaching some kind of consensus that balances these two interests.

In terms of the other question, the education part, I don't have a problem with that. I think it's very important. We do know that many people in the community are not aware that this is considered a criminal act. This education would be beneficial. If it particularly involves people from their communities working together with various departments of government, it would be even more beneficial. So I would recommend that.

Mr. Ramsay: Would you advocate or support that kind of education at the point of entry for immigrants coming into Canada? Would you support that?

Ms Gaitho: When we're talking about immigration, as members of a group that's always on the short end of the immigration stick when immigration status and quotas are being handed out, it becomes very difficult for us to categorically tell you yes. As we see it, it will then be one more mark to be used.

I mean, we shouldn't lie to ourselves. There are a lot of problems with immigration law. Immigration laws are of course a microcosm of a larger society that has racist foundations, so we have to be very careful that we don't decide African immigrants will not be allowed because they do this. We can't start from there.

Mr. Ramsay: No, it was the education -

Ms Gaitho: Just indulge me for a minute.

As long as we are clear that this is not what we're doing, saying no immigrants can come from Africa. Because the other thing we also have to be aware of, as we talk about FGM and the practice in Canada, is that the people performing or people who are helping are not African-born doctors. They are white male doctors in Toronto. They are white male doctors, born in Canada, bred in Canada, for years and centuries. We have to be very careful not to make this very superior judgment call of saying ``These barbarians who perform this barbaric act - we are now going to tell them that part of the immigration law is to say you can't get in.'' That is why we are stressing education.

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Mr. Ramsay: I'm sorry, that's not my question.

Ms Gaitho: Okay, no; but I'm saying that's why we are stressing education.

To come back to you on the immigration status, to say to people that when they come to this country, just as you would say to people that when they come to Canada wife abuse is not accepted, as long as it is part of an educational process - that's why I'm doing this whole preamble - that says when you come to Canada rape is not part of the scene, wife abuse is not part of the scene, sexual contact with children under a certain age is not part of the scene, FGM is violence against women and there's no age of consent regardless, from 100 to two or whatever, then we'll be okay with that.

Mr. Ramsay: Thank you.

The Chair: Ms Torsney.

Ms Torsney: Thank you. It's easy to see how things go down a line and people take misrepresentations from good intentions, sometimes. I thought the interesting thing about your presentation was how you related it to a lot of the people who think that it has nothing to do with my white Anglo-Saxon community - I guess I'm not really an Anglo-Saxon, but anyway.

You identified a Flare magazine article from September 1996, and I thought it was interesting because it also opened up this other issue of consent in some ways, and of the whole issue of degrees of things. I think we heard that there are different degrees of female genital mutilation, and what we want is that there shouldn't be any of it. We still I think are faced with an issue of what to do in the cases where it's just a ritual pricking of the clitoris or other things.

One of the issues raised by the medical community was this issue of tattooing and of piercing or what have you, and that's the whole issue of consent. So what do you do? Are we really intending, if we take away the consent issue for those over 18, to prosecute anybody who...? Because Flare magazine or some other magazine thinks it's acceptable to have body piercing, which I would not approve of, although I do have my ears pierced, I notice. It's degrees, isn't it?

How do we get around these issues? That's my question to you. What we wouldn't want to do is to say if you're white and of European descent then it's okay to get an earring through your clitoris; if you're of African descent or from one of the communities that's most affected, that piercing in fact is female genital mutilation, so there can be no consent. I could see that different groups would be affected differently and it would be a further systemic racism around the issue. Do you see what we're trying to deal with sometimes?

Ms Gaitho: Yes, and having to deal with the whole.... Yes, with that issue I see where you're coming from. But that's why we're saying part of what we would actually like to see is a provision that just looks at FGM as defined by the affected communities.

If you get into the medical part, I mean, for somebody.... A healthy organ that shouldn't be totally taken out of your body makes absolutely no sense. When we talk about consent, the idea that I could consent to my husband abusing me, and going to court, and me saying I agree that I let him beat me - does that then...? I'm over 18, is that cool? Then the idea that I go to a doctor and say I want my clitoris taken off, I want my whole vagina just totally rearranged - is he allowed to do that to me because I'm over 18? It gets to a point where we're playing with the law. And as my colleague pointed out, we are not lawyers, and therefore cannot take the legal arguments to their silly stupid conclusion, for lack of a better word.

The idea that consent for FGM may have loopholes and variations - what we're saying then is give us a provision that looks at FGM and its definition and says this is violence and this is against the law.

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Ms Torsney: So in the case of the person who just goes for their traditional FGM - just a very symbolic, not a traditional, a symbolic FGM, just a pricking of the clitoris -

Ms Gaitho: But you used the word FGM; it's against the law.

Ms Torsney: Okay, but why couldn't their defence be ``Wait a second, that wasn't it at all, I in fact was complying with what is now trendy in certain communities in Canada''?

Ms Dirie: I think I would like to interject here and -

Ms Torsney: Sorry, I would just finish the point: otherwise the point would be in fact not allowing that in certain communities, because of the context of FGM, versus allowing it in other communities. There would be a double standard, and that troubles me.

Ms Gaitho: Could causing bodily harm to yourself then...? I mean, we can go back into the Criminal Code and say if it's causing bodily harm to yourself, we can now allow it. If part of my hip thing is to, I don't know, get my arm amputated, am I allowed?

Ms Torsney: Piercing - it's happening all the time: body parts, tongues, clitorises, penises, nipples, everything. It's gross.

Ms Gaitho: Health officials will tell you about people who are getting infections, and they are wondering if this is something that should be considered.

I think we have to look at what we call individual rights and decide when do we step in and say to the person this makes no sense, and this is against the law. One of the presenters pointed out the whole idea of sado-masochism during a sexual act - it gets to a point where you say okay, you may have consented, but guess what, this is against the law. Sorry, I apologize to Pierre Trudeau, who thought we should stay out of people's bedrooms, but I mean you've consented to this, yes, but guess what - it's against the law.

I think we have to be clear, because at this point in time we could get to such finite things such as saying she just wanted her clitoris taken off, so she's Latin, or whatever. It's also a case of the judicial system kicking in and doing its job of saying we are going to protect you against yourself.

Ms Dirie: This is really a very difficult sort of discussion. We have attempted to address it in our brief at page 11, ``female genital mutilation and cultural predisposition''. We hoped in saying that whatever ear piercing is.... Even if you go back in the history of FGM, when we did our research, we found it didn't start with the Pharaonic, it started at the time of Hippocrates in Greece, when they defined clitoris as ``a servant who invites guests'' - that's the definition and the meaning of clitoris in Greek. This was the father of medicine. From that time they were chopping off the clitoris of the woman. We also learned from our research of that history that even later on ear piercing was also meant to punish little girls. This was not among the aristocratic families, it was the slave girls - so again, a punishment of women, subjection to mutilation.

That's what we address in here. What we are saying - especially when we saw the article in Flare - is that nothing has changed from that time, I don't know how many centuries ago. We simply we use a new, modern theory. They call the doctor in Flare, he says ``labia reduction''. Labia reduction means excision and mutilation of the labia. The other one, in the vagina, stitching and making the small vagina opening - that's what we used to call re-infibulation.

From that time until today nothing has changed. We're simply using modern words to suit our modern times, especially in the west. What we hope to achieve is to educate our sisters everywhere: wake up, this is mutilation.

What we want to tell the law is that in the Hippocratic era in Greece or the Pharaonic era, they didn't have a criminal code to say doctors can do and you have.... What we are saying is be aware. Do not put it in the Criminal Code with exceptions, because then you are actually legalizing it. No document in the olden times has said go ahead. It was something culturally done. But once you accept it in the Criminal Code and you put a medical exception and you put a consent, literally what you are saying is that you are institutionalizing it for the first time. So you have the justice system and the medical system saying go ahead, women can mutilate themselves. We are trying to stop other sisters, telling them to wake up.

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This is a very difficult position. We're saying it doesn't matter whether it's done in a hospital as a labia reduction -

Ms Torsney: Or a tattoo.

Ms Dirie: - or a tattoo, yes. It's mutilation. It's a health hazard. It's women defining through the eyes of men how we should look. We have to stop it. If we can't stop this in the legal system, where are we going to stop it?

Some hon. members: Hear, hear.

Ms Torsney: I feel I should cast out my earrings.

Some hon. members: Oh, oh.

Ms Baya: I want to say that the issues you raise are very difficult. That is one of the reasons why we suggest it's very important that there's consultation among a wide spectrum of the different communities where female genital mutilation happens in terms of getting something on the table that makes sense for different groups of people.

I thought it was interesting that you brought up the issue of pricking. We actually did have a young girl who came for counselling who'd had this done to her. About 17 or 18 when she came in, this was done to her when she was seven. She was still crying every time she talked about it. She broke down and cried. She still remembers the pain.

We say it was just pricking, but it's really more than that. I think it's the psychological impact she still hasn't been able to come to terms with. For the person to whom it was done, it does have lasting consequences, if not physical, then mental.

Ms Torsney: Exactly. It's the power and balance and everything else.

I worry, because it has been raised with us, about those instances. Are we really going to walk down Queen Street in Toronto or whatever other street they're doing piercing and tattooing in the cities across Canada, and say, well, if we change this consent issue, you're going to be charged under the Criminal Code?

It's my sincere hope that there will be continued consultation in terms of the implementation and the education components and what have you, but I'm not sure consultation means we're ever going to get agreement. There are women who think that waxing your legs is a form of mutilation, but there are others who disagree. Consultation will never bring us to complete agreement on the issues. What we have to do is try to correct the situation occurring...from the Quebec presentation on the very medical things that are happening. I don't know what the answers are.

We've heard that there is a call for the legislation, that there's a need to do something now. That's not the end of the story, but it's something that is still necessary. Maybe we can look at additional things as well.

Ms Baya: I think it's important to focus on this particular issue of FGM. The medical evidence is really overwhelming against FGM, and I think that's a starting point.

The Chair: Thank you, Ms Torsney.

Ms Dirie: I have a question for Ms Torsney, Madam Chair.

The Chair: Go ahead.

Ms Dirie: Did you have any part in drafting this bill?

Ms Torsney: Not specifically. I'm not a lawyer, either, but I was in the consultation you spoke at in August 1995, and we have heard from various members of communities, individually and as a group. The minister certainly has spoken to us about it.

Ms Dirie: Because I found it strange that you said you consulted doctors, and that the medical establishment is saying that.

Ms Torsney: They presented here.

Ms Dirie: Oh, they presented. It wasn't in the drafting of it.

Ms Torsney: No. It was the kind of consultation we're having today.

Ms Dirie: So it's not the procedure that for any law, when it's going to be drafted, you bring in the concerned experts of the community and say -

That's not the process?

Ms Torsney: Yes, it is.

The Chair: I think it is the process. There are people in the room from the Department of Justice, for instance, who were adjunct members of the Ontario task force. So I don't accept that this has happened in a vacuum, but I also accept your comments. I'm not trying to argue with you, it's just that it's clear to us that there has been a lot of consultation on the bill.

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Because I think these are really the last witnesses today on this issue, and Madame Gagnon has a private member's bill, I want to give you a couple of minutes to sum up. I'll give you the last word.

[Translation]

Ms Gagnon: I do not intend to recapitulate because it would take too much time but I would like to ask Ms Baya for some additional information on a point she raised, namely a person who is accompanying someone who is committing the act, that is the connection between the practitioner and the person advocating the act.

My bill did contain a specific provision dealing with this point. I am in favour of criminalizing this act without making any distinction between the mother, cousin or aunt because I assimilate it to other practices, such as paedophilia when it is practiced by the uncle. It all boils down to how we deal with the best interests of the child and I agree with you, but I'd like you to specify whether you are against criminalizing the act when it is the mother or grandmother who does it to her children or whether you want specific measures to be taken so that the child is not left alone in cases where the mother is prosecuted. Personally I think that would be the normal effect of a law, the criminalizing of the act. That's why I would like to have a few more clarifications on the matter, especially since my colleague from the Reform Party also raised this point.

[English]

Ms Baya: It is a real problem. This is something we've been dealing with ever since our community health centre came into being - the whole issue of how you balance the interests.

Where this has already happened, where you have a mother who is a fit mother in every other way, if you're going to put this mother in jail, what are your responsibilities towards her child? Where are you going to put her child? Is it in the best interests of this child? How can you balance the two so that you still have both the educational and the deterrent aspects of the law without sacrificing the child to make an example of the parents?

I don't know if I'm speaking for my centre, but I personally feel that the interests of the child should be paramount and that this will have to go on a case-by-case basis. I don't think I can make a general recommendation about it. We use the various provisions in the children's act or whatever in terms of making a judgment on the spot, but I'm not sure you can say something general about it. I think it's going to be case by case.

Ms Dirie: If I can add something to what Khamisa said, we're not asking that the parents not be punished, but we are asking a lenient punishment in the best interests of the child.

There has been law where similar things have been done, especially the former abortion law. We all know the abortion law that was invalidated in 1988. We have the same intention...the societal pressure where there was a differential punishment between the doctor who performs and the victim who tries to get an abortion, and her reasoning and those because of the societal pressure. It was a lenient punishment for that because of that concept.

We are asking for that kind of thing. We are not going to ask for something that has never been done. We are asking for some kind of differential punishment and a lenient sentence, in the best interests of the child.

As Khamisa said - and you should find this in our brief - the families are not what we call, quote, known violent families that abuse the children or neglect, or don't feed or don't clothe. They are loving parents. One of the reasons they do this is that if they don't, they believe it's because they're neglecting their kids, because of that societal pressure. It's the same societal pressure as when the abortion law was implemented, was drafted.

So we're asking for something similar to that, but it's not to be misunderstood. This is a crime and it has to be criminalized and it is a criminal act. But we are asking for a differential sentence. That's why we are suggesting a totally new provisional law to deal with the complexity of the punishment and the education package, which should be 99% of our edification.

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The Chair: Thank you very much. Thank you all for a very stimulating discussion.

We'll rise for a couple of minutes until our next witnesses can get in place. This meeting is adjourned.

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