Correspondance between Margaret A. Somerville and the Canadian Minister of Justice, A. Kim Campbell

McGill,
June 10, 1992

The Honourable A. Kim Campbell
Minister of Justice
and Attorney General of Canada
Ottawa, Ontario K1A OH8

Dear Minister,

I have been sent a copy of your letter, dated May 6, 1992, to Dr. Tom Anderson concerning the legality of both male and female circumcision.

This is a matter which has been brought to my attention on several occasions and with much greater frequency of late. I have, also, in the past, adopted the position taken in your letter--that male circumcision should be regarded as legal and female circumcision as illegal, in particular, under the Criminal Code--but, I have some difficulty in explaining this position and do not find that this difficulty is resolved by your letter. Your letter states that there are no federal or provincial laws dealing expressly with the legality of male circumcision, and, at least implies that, therefore, this procedure is legal. But the same is true for female circumcision and, yet, as your letter, rightly states, this would be considered illegal under the Criminal Code.

May I suggest that any wounding, and clearly circumcision involves this, is prima facie illegal, unless it can be justified. Initially, a therapeutic aim was the sole justification for such an intervention. More recently, it has been argued an alternative justification is possible, in that, some non-therapeutic interventions (those that are not contrary to public policy) are legal with the informed consent of an adult (for the record, I have written on this elsewhere, see Somerville, Medical Interventions and the Criminal Law: Lawful or Excusable Wounding? (1980) 26 McGill Law Journal, (1) 82-96). In the case of a male infant such consent is not a possibility, and neither, in the vast majority of cases, could the intervention be considered therapeutic. This means that one would have to find other justification for the intervention. The only possibility, which comes to mind, would be that the harm involved is de minimis and, therefore, should not to be taken into account by the law. I am not sure, however that we can any longer claim this with regard to male circumcision. Possibly, an argument along the lines of respect for religious and cultural freedom of the parents provided that the intervention is, indeed, of minimal harm, could be considered. But again, I am uncertain that this would justify wounding that involves irreversible consequences, and the issue remains of whether only minimal harm is involved.

There are also some forms of female circumcision, which would be no more harmful than male circumcision, and, possibly, less harmful.

However, I agree with you that these, also, should be prohibited. But in this case, it makes it even more difficult to determine why we would continue to regard male circumcision as legal and allow it.

As I have many inquiries on this matter and because I have also, been receiving a great deal of literature from groups who are opposed to male circumcision, I would be grateful for any help that your Department were able to provide me with, regarding this matter.

Yours sincerely,
[signed]

Margaret A. Somerville, AM FRSC

Gale Professor of Law, Professor Faculty of Medicine: Director McGill Centre for Medicine, Ethics and Law [Montreal, Quebec]

A. Kim Campbell, PC, QC,
MP Minister of Justice and
Attorney General of Canada
Ottawa, Canada
K1A 0H8
Dec 15 1992

Dec 15, 1992

Ms. Margaret A. Somerville
Director
McGill Centre for Medicine,
Ethics and Law
24th Floor
2020 University Street
Montreal, Quebec
H3A 2A5

Dear Ms. Somerville,

Thank you for your thoughtful letter of June 10, 1992, about female genital mutilation and male circumcision. I regret that I was unable to reply earlier.

I am grateful to you for drawing my attention to your article on medical interventions in the McGill Law Journal. I am certainly not at this time going to suggest that you are mistaken in the analysis you present in your letter. However, it is my position that another mode of discourse is possible on these topics.

I do not believe that it is always helpful to discuss in detail whether a particular act is or is not strictly speaking contrary to a provision of the Criminal Code. As you know, there are many acts that occur daily that may, strictly speaking, be contrary to the Code, you they are nevertheless not prosecuted because they are notoffensive to society.

In response to this line of reasoning it is sometimes objected that one should not rely on prosecutorial discretion in criminal law matters. To this, my reply would be that Canadians are lucky, broadly speaking, in their criminal law, which is expressed in general terms and thus is not riddled with sections stating, for example, that deliberately hitting someone is illegal but deliberately bumping into them on the bus is not illegal. But, having a criminal law expressed in general terms does necessarily entail the existence of a prosecutorial discretion. At the same time, I am fully aware that society's opinion can change regarding whether a particular act that could be considered criminal, should in fact be prosecuted.

In the conclusion of your article you state that medical interventions are not regarded in practice as prima facie illegal, and that some non-therapeutic interventions are accepted by our society. In my opinion these points are crucial in connection with female genital mutilation and male circumcision.

I do not believe that the issue of the therapeutic value of male circumcision has been finally decided in the medical literature. But regardless of this, it remains true that in our society male circumcision is at present accepted and indeed has been for many years. As I mentioned above, I am aware that there may come a time when this is no longer so. Furthermore, I am not yet persuaded that male circumcision can be said to cause harm that is above the de minimis level.

On the other hand, female genital mutilation is not at present accepted in our society. I am fully aware of the respect and protection offered in Canada to multiculturalism and it is my opinion that female genital mutilation goes beyond the limit of what multiculturalism will allow. In addition, it must be stressed that female genital mutilation undoubtedly causes harm that goes well beyond the de minimis level. I gather that there is apparently an uncommon form of female genital mutilation that may not cause serious harm, but I do not believe that this procedure is currently accepted in our society.

I hope my reply will be of some use to you. In closing, I wish to repeat that, if the medical profession reaches a consensus that male circumcision is harmful beyond the de minimis range, or if female genital mutilation becomes accepted in our society, then I will certainly re-examine my opinions on these topics.

Yours sincerely,
(signed)

A. Kim Campbell

Margaret A. Somerville
Director
McGill Centre for Medicine,
Ethics and Law
3690 Peel Street
Montreal, Quebec, Canada H3A 1W9

January 28, 1993

The Honourable Pierre
Minister of Justice
and Attorney General of Canada
Ottawa, Ontario K1A 0H8

Dear Minister,

I am in receipt of a letter of December 15, 1992, from the former Minister of Justice, the Honourable A. Kim Campbell, regarding infant circumcision, a matter on which we have been in correspondence. With respect, this letter has not assisted me in finding a clear justification for male infant circumcision---in fact, it raises further difficulties. My comments in this letter are in response to statements in the Honourable Kim Campbell's letter.

Whether or not an act which technically offends the Criminal Code will be prosecuted under it, depends on whether, first, the act in question falls within what we would regard as a social exception. An act that is considered to be contrary to public policy cannot be justified pursuant to its being regarded as a social exception and any act that involves more than de minimis harm is likely to offend public policy, unless it is otherwise justified, for instance, a therapeutic aim is involved and there is informed consent. In short, social exception and de minimis harm are linked concepts.

The statement in the Minister's letter that deliberately hitting someone is illegal but deliberately bumping into them on the bus is not can be queried. Usually, deliberately bumping into a person on the bus would prima facie be an assault (unintentionally doing so is almost certainly within a social exception). But whether or not such an assault would be prosecuted is a matter of whether the harm involved is so de minimis that it does not merit prosecution, which is often the case. Therefore, this example is not analogous to infant circumcision (and does not indicate whether or not this constitutes an offence, and if so, whether or not it should be prosecuted),if the latter involves more than de minimis harm.

The Minister refers in her letter to my article in the McGill Law Journal in which I suggest, in the conclusion, that some non-therapeutic interventions on competent adult persons, which in practice are not considered contrary to public policy (donations of organs for transplantation or cosmetic surgery), despite their involving more than de minimis harm, could be justified by regarding informed consent and therapeutic aim as alternative rather than cumulative justifications of them within the Criminal Code. Contrary to the way in which the Minister may, from her letter, have interpreted my proposal, this would mean that for those incompetent to consent for themselves, which necessarily includes all infants, a non-therapeutic intervention that involves more than de minimis harm would not fall within any exception justifying it within the Criminal Code. This, of course, is exactly the difficulty faced with respect to justification of male circumcision. In the vast majority of cases, this is not generally regarded as therapeutic, except possibly at a very tenuous level. Indeed, opponents of male circumcision regard it as the antithesis of therapy.

Further, with respect, I disagree that male circumcision involves only de minimis harm, as the Minister indicates in her letter. An analogous example may make this clear. let us suppose that there is a new group in Canada which decides that, shortly after birth, the right earlobe of all children born into the group will be removed in order to identify them as belonging to that group. I believe that this would be prohibited under our Criminal Code as it currently stands. It would involve more than de minimis harm and as such it would not fall within any social exception and would be regarded as contrary to public policy. It would be an assault with wounding which was not justified by any therapeutic aim, the only justification which would seem to be potentially relevant. And, yet, this procedure may well be less harmful to the children subjected to it than is male circumcision to the children subjected to that, which indicates that de minimis harm is not an appropriate justification of malecircumcision.

There is and needs to be a great deal of sympathy for the maintenance of tradition and for freedom of religious belief (and clearly male circumcision is very strongly connected with both of these concerns). But we need to be very careful about our justification of it and, concurrently, our condemnation of female circumcision (with which condemnation I strongly agree), if we are not to run the risk of acting in an inherently inconsistent manner and simply on the basis that what we have always done is acceptable (because we have always done this) and that customs and traditions which are strange to us (but which may [be] no more harmful or less harmful than those we accept) are unacceptable.

Over the years, because of my work in medicine, ethics and law, I have been approached on numerous occasions about the issue of male infant circumcision. I am finding it more and more difficult to justify this. In particular, the allegation that it constitutes child abuse needs to be taken very seriously, and I do not find it easy to explain why this is not the case. Further, in this respect we need to be aware of recent research that shows that pain caused to infants (and this is true of all those unable to describe verbally their pain) is grossly under-rated. Moreover, under the analysis of the law which I propose in my article, and to which the Minister refers in her letter, male circumcision would not be totally banned. Rather circumcision of those persons unable to consent for themselves (which would, of course, include all infants) would not be allowed under the Criminal Code as it presently stands.

Yours sincerely,
(signed)

Margaret A. Somerville, AM, FRSC

Gale Professor of Law,
Professor
Faculty of Medicine;
Director
McGill Centre for Medicine,
Ethics and Law

October 17, 1995

Ms. B. Malofie
Box 10, Grp. 546, RR 5
Winnipeg, Manitoba
R2C 2Z2

Dear Ms. Malofie,

In response to the questions raised about the letter of 29 May 1995, to Mr. John Sawkey from the Minister of Justice, The Honourable Alan Rock:

It is correct that the Canadian Charter of Rights and Freedoms only applies to government actions, not private acts carried out by individuals or corporate entities. However, passage of legislation is a government action. Therefore, if it were true that the Criminal Code protected persons of a certain sex and a certain age against bodily mutilation, but not other persons of a different sex or a different age, this would constitute inequality pursuant to a government act, that is, the enactment of the Criminal Code, which would attract Charter scrutiny.

In my opinion, with respect, the difficulty with this letter from the Minister of Justice, is that it still does not address the basic issue, namely, that both non-therapeutic male circumcision and female genital mutilation are interventions on a child that, prima facie, constitute a criminal assault. The issue then, is whether such a prima facie assault can be excused or justified. It would be, if the intervention were necessary medical treatment to which the parents have given valid free and informed consent. Or, alternatively, if the intervention could be regarded as de minimis, that is, so trifling that the criminal law should not concern itself with it. For example, I believe that ear piercing would probably fall under this latter justification especially if it is reversible.

As far as I am aware, the Criminal Code does not specifically prohibit female genital mutilation, but this is prohibited by the prohibitions on assault, and not justified or excused, pursuant to an analysis such as I have set out above. The question is whether male circumcision is likewise prohibited. In my view it would be unless it can be justified on the grounds that either: (a) there is a clear therapeutic aim; or (b) it is de minimis; or (c) possibly, there is some exception on the basis of religious freedom, that allows ritual circumcision of males. (I hasten to add that I have never seen this proposed or argued and it would raise the issue of whether some form of female genital mutilation could, likewise, be justified.) With respect to the latter proposition, it would be interesting and worthwhile to analyze the recent judgment of the Supreme Court of Canada in the Sheena B. case concerning whether Jehova's Witness parents may, on the basis of religious belief and freedom of conscience, refuse blood transfusions for their child. Although this involves a vastly more serious outcome for the child than male circumcision, it would still be relevant to see how the principles adopted by the court in that case would apply. I have not yet had time to undertake any such analysis, but I have the intuition that this would be an informative line of reflection and research. The only other possibility for justifying male circumcision would be to amend the Criminal code to include an express provision allowing this.

You should also keep in mind that even when a person is potentially liable for a a criminal offence, there can be the exercise of prosecutorial discretion which results in a decision not to prosecute. Perhaps the letter of the Honorable Minister of Justice is best understood from this perspective, in that the persons are not prosecuted for carrying out male circumcision, but will be for undertaking female genital mutilation.

I hope that this helps to clarify the issues and does not add further to the confusion.

Yours sincerely,
[signed]

Margaret A. Somerville, AM FRSC

Gale Professor of Law, Professor Faculty of Medicine: Director McGill Centre for Medicine, Ethics and Law [Montreal, Quebec]

Margaret A. Somerville
Director
McGill Centre for Medicine,
Ethics and Law
3690 Peel Street
Montreal, Quebec, Canada H3A 1W9

March 21, 1996

Mr. Geoffrey T. Falk
The Fields Institute
222 College Street
Toronto, Ontario
M5T 3J1

Dear Mr. Falk,

In response to your letter of March 9, 1996, your information, that I did not receive a reply to my letter to the Honourable Kim Campbell when she was Minister of Justice is not correct. A copy of her reply is attached as well as my responses to this, the latter of which was sent to the Honourable Pierre Blais who replaced Mme Campbell as Minister of Justice.

With respect to the letter to you from the Honourable Allan Rock, I would not disagree with the substance of what he has written concerning female genital mutilation. But the issue, whether male circumcision should be allowed as simply a personal moral decision on the part of the parents, nevertheless remains. Further, one needs to be careful with using, as he does, the absence of disapproval of this procedure on the part of the medical profession as a basis for its legitimacy. In my understanding, in the vast majority of cases, male circumcision is not intended primarily as a therapeutic intervention. While it is true that Canadian law does permit some not-therapeutic interventions, these are only allowed, in general, where they are de minimis (for example, ear piercing), or the person on whom they are carried out is a competent, consenting adult (for example, cosmetic surgery). Personally, I would be more comfortable if male circumcision, if it were to be justified, were held to be such on the basis of freedom of religious expression and belief and respect for cultural practices. Moreover, approaching the matter in this latter way would at least cause us, as a society, to examine whether we believe that male circumcision is justifiable under these rubrics. In contrast, putting a medical cloak on the procedure, tends to divert the discussion away from addressing the real basis on which it is performed, and on which it should, therefore, be justified.

The other matter that is raised here, is one that is relevant to many activities in our society at the moment, namely, that of whether something is, in itself, inherently wrong, or whether it is only wrong, if it is wrong at all, because of its consequences. We need to discuss both such aspects of any situation that raises ethical and legal concerns. For instance, applying this approach to the issue of male circumcision, we would first need to ask whether this is inherently wrong. As you know there are varying views on this, as indeed, there are with respect to many other issues about which there is a lack of consensus regarding their morality, for example, abortion, euthanasia, genetic technology, reproductive technology, and various uses of biotechnology.

If we decide that male circumcision is not inherently wrong (the argument that it is inherently wrong, would be that it involves an irreversible, unconsented to, not-therapeutic mutilation) then we must ask: Are its consequences such that it should be regarded as wrong?. This, of course, is also open to debate, and what counts as harms, risks, benefits and potential benefits can be quite broad and again subject to disagreement. For instance, apart from any health advantages, arguments in favour of male circumcision would include respect for cultural identity, tradition, ritual, custom, religious affiliation and belief, identification with a father who is circumcised, etc.. The harms and risks are those that the persons who are against male circumcision point out, in particular, health harms and risks, loss of sensitivity, future psychological and sexual problems, and the potential for increased pain sensitivity because ofthis intervention--in my view, a very important concern.

There is also an issue of burden of proof. In my opinion, those wishing to carry out circumcision would have the burden of proving that this is justified. This means that where there is equal doubt as to whether or not this is the case, the procedure could not be undertaken.

The issues raised by male circumcision are, indeed, very complex and I believe that there is much to be learned, and good to be done, through seeking to deal with them in a spirit of active tolerance and sensitivity to other person's beliefs, although these beliefs may be contrary to one's own, while strongly advocating one's own position and the reasons for this. In fact, to adopt such an approach might be the most likely way in which to have one's position accepted.

Yours sincerely,
(signed)

Margaret A. Somerville, AM, FRSC

Gale Professor of Law, Professor Faculty of Medicine: Director McGill Centre for Medicine, Ethics and Law [Montreal, Quebec]

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