Monday, December 09, 2019

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B. Canada

Canada appears to be doing a good job in combating FGM within Canada. The main thing that the Canadian government has done is to educate the average Canadian about the practice of FGM. In addition, Canadian laws attempt to combat FGM around the world. This has proven to be a daunting challenge, but it demonstrates an awareness of the true breadth of the problem.

1. The Importation of FGM to Canada

The Canadian Women's Health Network writes that the number of women in Canada who have undergone FGM has increased because of the rise in immigration to Canada from countries that practice FGM; specifically, Somalia, Ethiopia, Sudan, and Nigeria where FGM is practiced against a large portion of the population. Hard statistics on the prevalence of FGM in Canada are not available. However, an estimate can be extrapolated by identifying the number of female immigrants from practicing countries who have already been subjected to FGM and counting the number of female children who live with these women. Unless there is a claim for asylum, there is a great possibility that those female children who reside with them are in danger of being subjected to FGM. In addition, for those families unable to afford to send their daughter back to the country of origin, the procedure will more likely than not take place in Canada.

2. Canada Reacts: Enacted Legislation

In 1997, Canada amended its criminal code to include the offense of female genital mutilation. It prohibits wounding or maiming, defined to include the “excis[ion], infibulat[ion] or mutilat[ion], in whole or in part, the labia majora, labia minora or clitoris of a person [p804] . . . .” Although exceptions are made if the person is at least eighteen years old and if there is “no resulting bodily harm,” consent is not valid for those under the age of eighteen.

The Canadian code recognizes the fact that relatives may send a girl back to her homeland to be subjected to FGM and thereby circumvent the law. Therefore, Canada has further crafted the law in such a way to protect “Canadian” residents all over the world: if a parent arranges for their daughter, a Canadian resident, to be sent to the country of origin to undergo FGM, then the parent would be criminally liable under the statute. In addition, some Canadian provinces require physicians to report and incidents of FGM that they might encounter in their practice.

Canada's Immigration and Refugee Board has issued guidelines that allow women who are at risk for FGM to stay in the country. Notwithstanding Canada's willingness to provide asylum to women who fear FGM, it may still be difficult to prove that the fear of FGM is justifiable. This occurs most often when the offending country has laws that prohibit FGM, but does nothing to enforce the law--consequently, the practice of FGM continues to flourish. One may still argue a woman seeking asylum is in no true peril where FGM is prohibited, and, therefore, should not be granted refugee status.

[p805] 3. The Impact of Canadian Legislation

The asylum case of Oumou Toure is an example of how difficult it can be to prove that a woman's fear is justified. Ms. Toure fled from violence in her native Guinea and arrived in Montreal. Ms. Toure had already been subjected to FGM in Guinea when she arrived in Canada. She applied for asylum shortly after arriving in Canada, but her request was denied. She filed two more applications based on humanitarian grounds; both of those applications were also denied and Ms. Toure was scheduled to be deported. To further complicate the situation, shortly after arriving in Canada, Ms. Toure gave birth to a daughter, who would presumably be a Canadian citizen and thus protected.

Ms. Toure's case is compelling for two reasons. First, her stepmother was the official circumciser. And second, because her daughter was born during the interim period of waiting for a decision from the Canadian Department and Citizenship and Immigration. Her Canadian-born daughter is presumably the very individual contemplated in the Canadian law prohibiting FGM at home or abroad. Ms. Toure argued that her daughter would be subjected to FGM, just as she had been. Because Ms. Toure did not have the child when she first applied for asylum and because Guinea has a law prohibiting FGM, which would purportedly protect her daughter, the Department of Immigration ruled against her.

However, Guinea's law did not comport with the practice of FGM in its country. Guinea's law prohibited mutilation except where “serious [p806] medical grounds” existed. Yet it is estimated that Guinea has a 95.6% prevalence of female genital mutilation.

After a great deal of publicity and public outcry, the Canadian Department of Citizenship and Immigration reconsidered Ms. Toure's case on June 9, 2007, and granted her permanent residence on humanitarian and compassionate grounds. Ms. Toure came extremely close to being deported back to the country which had inflicted a great deal of physical and mental abuse upon her and threatened to do the same to her young daughter.

Canada's system is imperfect, as Ms. Toure's case proves all too well, but much has been done to address FGM.

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