Issue
Whether permitting or facilitating non-therapeutic circumcision of male infants without medical necessity or the child’s consent is consistent with Sections 7 and 15 of the Canadian Charter of Rights and Freedoms, interpreted in light of Canada’s obligations under the UN Convention on the Rights of the Child (CRC).
Legal Framework
1. Charter Interpretation and International Law
The Supreme Court of Canada has repeatedly held that ratified international human rights treaties, though not directly enforceable, are relevant and persuasive interpretive aids when construing Charter rights, particularly where Parliament has not clearly legislated to the contrary (Baker v Canada, Slaight Communications, Health Services).
Canada ratified the CRC in 1991 and has consistently represented it as a guiding instrument for child-centred decision-making.
CRC Provisions Engaged
- Article 3(1) – Best interests of the child must be a primary consideration in all actions concerning children.
- Article 12 – Children have the right to be heard in matters affecting them, consistent with age and maturity.
- Article 24(3) – States must take effective measures to abolish traditional practices prejudicial to the health of children.
These provisions do not criminalize conduct directly, but set minimum normative standards against which state action and inaction must be assessed.
Charter Section 7: Security of the Person
Section 7 protects bodily integrity and autonomy. Canadian jurisprudence recognizes that non-consensual physical interference engages security of the person even absent catastrophic harm.
Non-therapeutic circumcision:
- Is irreversible
- Involves removal of functional tissue
- Is performed without consent
- Is not required to avert imminent harm
When applied to adults or female minors, such interference would clearly trigger Section 7 scrutiny. The exemption for male infants rests not on principle, but on customary tolerance.
Interpreted consistently with CRC Articles 3 and 24(3), Section 7 requires the state to justify why this permanent bodily intervention is treated as compatible with a child’s security of the person when less intrusive alternatives (deferral until consent) exist.
Charter Section 15: Equality
Section 15 guarantees equal protection and benefit of the law without discrimination, including on the basis of sex and age.
Current legal and medical practice:
- Prohibits non-therapeutic genital cutting of female minors, regardless of cultural or religious motivation
- Permits non-therapeutic genital cutting of male minors under substantially similar conditions of non-consent
This distinction:
- Is explicitly sex-based
- Operates at the level of bodily integrity, a core interest
- Lacks a principled justification grounded in the child’s rights
CRC Article 2 (non-discrimination), read with Articles 3 and 24(3), supports the view that differential protection of children’s bodily integrity based solely on sex is inconsistent with Canada’s equality commitments.
Scope of the Claim (What Is Not Being Asked)
This argument does not require:
- Criminal prohibition
- Retroactive liability
- Adjudication of religious doctrine
It supports narrow, proportionate relief, such as:
- Requiring medical necessity or informed consent standards
- Removing public funding or institutional facilitation
- Deferring non-therapeutic procedures until the individual can decide
Conclusion
When Sections 7 and 15 of the Charter are interpreted consistently with the CRC, Canada’s current tolerance of non-therapeutic circumcision of male infants represents a rights inconsistency, not a settled principle.
The CRC does not decide the case — but it removes the moral and interpretive comfort of treating this practice as beyond scrutiny.