INTRODUCTION AND BRIEF DESCRIPTION
Section 268(3) criminalizes the excision, infibulation, or mutilation of the labia majora, labia minora, or clitoris of a person, except under certain circumstances.
SECTION WORDING
268(3) For greater certainty, in this section, "wounds" or "maims" includes to excise, infibulate or mutilate, in whole or in part, the labia majora, labia minora or clitoris of a person, except where (a) 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; or (b) the person is at least eighteen years of age and there is no resulting bodily harm.
EXPLANATION
Section 268(3) of the Criminal Code of Canada examines the criminal act of wounding or maiming another person. It considers the act of excising, infibulating or mutilating the labia majora, labia minora or clitoris of a person. According to this section, such an action is considered a criminal offence unless two circumstances apply. Firstly, if a qualified medical practitioner performs a surgical procedure on a person, it would not be considered a criminal offence if such a procedure was done for the physical health of the person or to improve their reproductive or sexual health. In this context, the term "qualified medical practitioner" refers to a person who is legally allowed to practice medicine in the particular province of Canada. Secondly, if the person in question is 18 years of age or older and no bodily harm has resulted, then the act of removing or altering the aforementioned body parts would not be a criminal offence. Both these exceptions are significant as they allow for safe and necessary medical procedures to be performed, while also having respect for the autonomy and bodily integrity of adults. Overall, section 268(3) aims to protect individuals from the physical harm caused by another person attempting to alter their anatomy in an unauthorized manner. It acts as a tool to protect individuals' bodily integrity and maintain the standards for medical procedures in Canada.
COMMENTARY
Section 268(3) of the Criminal Code of Canada is a legislation that criminalizes the act of excising or mutilating the labia majora, labia minora, or clitoris of a person. However, two exceptions exist where the act of performing any of these acts would not be considered illegal. The first exception is where a surgical procedure is performed by a duly qualified medical practitioner for the benefit of the physical health of the person or for the purpose of restoring normal reproductive functions or normal sexual appearance or function. This exception is reasonable as it permits medical practitioners to perform procedures that are necessary for the health and well-being of the individual. However, the second exception that a person is at least eighteen years of age and there is no resulting bodily harm is more controversial. This implies that an individual could still give consent to have their genitalia mutilated, provided they are above 18 years old and there is no physical harm caused. This is a very contentious issue, and there are valid arguments for both sides. On the one hand, some people argue that adults have a right to bodily autonomy and should be free to do what they want with their bodies as long as it doesn't harm anyone else. From this perspective, if an individual consents to genital mutilation, it is their right to do so, and the state should not interfere. On the other hand, there is the argument that consent to genital mutilation is not really free and voluntary, particularly when it comes to cultural or religious practices. Some have argued that individuals may face coercion or pressure from family members or community leaders to undergo genital mutilation, and that the practice is deeply rooted in patriarchal cultural and religious traditions that perpetuate the oppression of women. It is also important to note that genital mutilation is a form of violence against women and girls and a gross violation of their human rights. The act causes significant physical and psychological harm, including pain, infection, difficulty urinating, menstrual problems, childbirth complications and sexual dysfunction, amongst others. In conclusion, while the broader intent of Section 268(3) is to protect individuals from having their genitalia mutilated, the second exception that permits individuals above the age of 18 to consent to genital mutilation is controversial. It is important to critically examine the individual circumstances and motivations behind consent to such mutilation and acknowledge the social and cultural factors that may influence that consent. Ultimately, it is important for Canadian society to prioritize the protection of individuals' human rights and bodily autonomy, while considering cultural relativism and the potential for cultural traditions to perpetuate oppressive or harmful practices.
STRATEGY
Section 268(3) of the Criminal Code of Canada is a controversial provision that criminalizes the practice of female genital mutilation (FGM) or cutting. This provision has been considered as a robust measure to prevent the practice of FGM in Canada, but it also poses several strategic considerations when dealing with cases related to it. This article discusses some strategic considerations when dealing with this provision and suggests some strategies to address them. One of the strategic considerations when dealing with section 268(3) is the sensitivity of the issue. FGM is a deeply-rooted cultural and traditional practice in some communities, and its criminalization can be viewed as an encroachment on their cultural rights. As a result, some communities might be hesitant to report or disclose cases of FGM, even if they are aware of it. To counteract this, strategies to increase awareness and educate the public on the harms of FGM and the laws criminalizing it could be employed. This could include community outreach programs, targeted awareness campaigns, and training of frontline workers such as healthcare professionals, social workers, and law enforcement officials to recognize and report cases of FGM. Another strategic consideration when dealing with section 268(3) is the difficulty of identifying cases of FGM. Unlike other forms of violence, such as physical assault or sexual abuse, FGM is a hidden practice that is usually carried out in private settings. It is often performed by traditional practitioners who are not licensed healthcare professionals and may not have a record of their patients. Therefore, identifying and prosecuting offenders can be challenging. One strategy to address this issue is to collaborate with community leaders, activists, and organizations to facilitate access to information on FGM practices and its associated risk factors. This could include developing hotlines, online resources, and confidential reporting mechanisms that could help victims and witnesses to report and receive support. Another strategy could be to collect data on FGM prevalence in Canada. Despite being criminalized in the country, the actual prevalence of FGM in Canada is unknown. This lack of data makes it difficult to allocate resources, develop effective policies, and devise a strategic response to FGM in the country. To address this, a comprehensive data collection system could be established to collect information on FGM prevalence and risk factors. This information could help health professionals and law enforcement officials to respond appropriately to cases of FGM and provide tailored care and support to victims. In conclusion, section 268(3) of the Criminal Code of Canada is a crucial provision that criminalizes the harmful practice of FGM in the country. However, dealing with cases related to this section requires a thoughtful and strategic approach. By raising awareness, developing support systems, and collecting data, it is possible to address this complex issue and enhance the protection of vulnerable persons from the harmful effects of FGM.