The Ontario Human Rights Code recognizes the inherent worth and dignity of every person in Ontario. The Preamble makes particular reference to the Universal Declaration of Human Rights and the inherent principles of dignity and equal and inalienable rights of the person. The creation of a society in which all persons can live and work in an environment that is free from discrimination is central to the policy objectives of the OHRC by virtue of the Code. The OHRC thus recognizes that FGM violates the basic human rights and human dignity of women and girl children.
In Ontario, evidence indicates that FGM is practised within certain immigrant groups.[44] There are new immigrants to Canada who may not be aware that some of their traditional or culturally rooted attitudes and values may result in practices that are clearly in conflict with Canadian law, including the Ontario Human Rights Code. The Ontario Children's Aid Society, in its Policy on Female Genital Mutilation (April 1995) notes that most families who seek out this procedure do not consider the mutilation of female genitalia as a form of physical or sexual abuse. The Society also stresses the need to understand the socio-cultural context in the development of strategies to stop the practice.
The OHRC recognizes the need for public sensitivity, awareness and understanding in dealing with culturally rooted practices which may conflict with the principles and provisions of the Code. At the same time, the OHRC has a dual responsibility under its mandate to enforce the provisions of the Code and educate the public on human rights issues.
5.1 Interpretation
The practice of FGM in Canada raises human rights issues as well as health, social and criminal law concerns. The international community, including Canada, has condemned FGM as a human rights violation. This has implications for the Code with respect to matters within provincial jurisdiction.
The OHRC acknowledges the complex social and cultural roots of FGM and the need for dialogue and education initiatives within the at-risk communities in Ontario and across Canada. However, it is the OHRC’s view that arguments based on a defence of cultural or religious values should not be accepted as justification for the practice, nor for discriminating against women who have been subjected to, or perceived to have been subjected to, genital mutilation.
The OHRC has a responsibility to ensure that the fundamental human rights principles enshrined in the international conventions and treaties to which Canada is a signatory, and which are protected in the Code, are respected and upheld in Ontario.
It is the OHRC’s position that the practice of FGM is contrary to the Criminal Code and public policy in Ontario. The practice offends the inherent dignity of women and infringes their rights as set out in the Code. It is the OHRC’s position that the Human Rights Tribunal of Ontario should deal with applications involving FGM filed by victims of the practice or their legal guardians. Under the Code, an allegation of discrimination must be based on a prohibited ground of discrimination in relation to an identified social area.
5.1.1 Primary prohibited ground – sex
International law and human rights law in particular have identified FGM as a gender issue. Genital mutilation is reported to be used as a means of social control over women in affected communities.[45] The OHRC’s Policy on sexual harassment and inappropriate gender-related comment and conduct refers, at page 2, to the imbalance of power and authority as a policy consideration in reviewing behaviours that result in discrimination based on sex. The Policy reads in part:
... unequal treatment based on gender typically, but not exclusively, involves the abuse of male power and authority over women, resulting in the reinforcement of a woman's subordinate status in relation to men
5.1.2 Other prohibited grounds
Although the most likely prohibited ground of discrimination on which an application might be based is sex, particular facts relating to a specific application could also involve other prohibited grounds of discrimination. For example, the facts relating to a particular allegation of discrimination could lead to "place of origin" being cited as a ground in the application, if the alleged discriminatory treatment is clearly linked to FGM as a practice that only occurs in immigrant communities from specific countries.
"Disability” or "perceived disability" may be relevant in situations in which women who have been subjected to the procedure are treated differentially in respect of services or employment, subject to health considerations.[46]
5.1.3 Social areas
Services, goods and facilities (section 1)
Women who have been subjected to the procedure visit health care practitioners who have rarely treated FGM patients. The Code protections may be applied to prevent discrimination against women (and girls, where applicable) who:
- have undergone FGM, to ensure that they receive adequate and appropriate medical treatment without differential treatment, except as required for health reasons; or
- refuse to be reinfibulated, but whose wishes are opposed by another family member.
The performance of FGM, including infibulation or reinfibulation by a physician licensed in Ontario, would also be regarded as professional misconduct according to the CPSO's policy, and may give rise to criminal charges of assault.
Employment (section 5)
Women who have been subjected to FGM, or who may be perceived to have been subjected to FGM because of their creed or place of origin, may experience discrimination in employment. The OHRC is aware through the Ontario FGM Prevention Task Force that employment-related discrimination involving FGM and perceptions relating to the practice has occurred.[47]
Discrimination may take the form of harassment by co-workers or management about the practice, or denial of employment because of the perception that women who have been subjected to FGM will have health complications resulting in high absenteeism rates.
[44]Supra, note 21.
[45] Ibid.
[46] FGM would appear to fall under the ground of "disability" under section 10. As previously noted, the health complications arising from FGM are many and can manifest themselves at different times.
[47] Such a situation involved an employment interview, where a human resources representative who was aware of the practice of FGM allegedly inquired as to the applicant's place of origin with a view to eliciting information about the applicant's long-term health as potentially unpredictable and her eventual reliability as an employee.