COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. D.J.W.,

 

2011 BCCA 522

Date: 20111222

Dockets: CA037623; CA037983

Between:

Regina

Appellant
(Respondent on cross-appeal)

And

D.J.W.

Respondent
(Appellant on cross-appeal)

Pursuant to s. 486.5(1) of the Criminal Code, there is a ban on the publication in any document or the broadcast or transmission in any way of any information that could identify the complainant or any of the complaint’s family members.

Before:

The Honourable The Chief Justice Finch

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Hinkson

On appeal from:  Supreme Court of British Columbia, October 14, 2009,
(R. v. D.J.W., 2009 BCSC 1397, Vancouver No. 24778)

Counsel for the Appellant:

M. Mereigh

Counsel for the Respondent:

D.H. Christie

Place and Date of Hearing:

Vancouver, British Columbia

September 27, 2011

Place and Date of Judgment:

Vancouver, British Columbia

December 22, 2011

 


 

Written Reasons by:

The Honourable Mr. Justice Hinkson

Concurred in by:

The Honourable Chief Justice Finch
The Honourable Madam Justice Kirkpatrick


 

Reasons for Judgment of the Honourable Mr. Justice Hinkson:

[1]             On April 2, 2007 D.J.W. (to whom I will refer hereafter as “the accused”) attempted to circumcise his four-year-old son on the kitchen floor of his home. On September 1, 2009, he was charged by indictment with one count of criminal negligence causing bodily harm contrary to s. 221 of the Criminal Code, R.S.C. 1985, c. C-46, s. 265, one count of aggravated assault contrary to s. 268(2) of the Code, and one count of assault using a weapon contrary to s. 267(a) of the Code as a result of the attempted circumcision.

[2]             On October 14, 2009, the accused was convicted of criminal negligence causing bodily harm and acquitted of the other two counts by a judge sitting alone. Her reasons for judgment are indexed as 2009 BCSC 1397.

[3]             The Crown appeals both acquittals and the accused appeals the conviction. The appeals were heard together, and the reasons which follow will address both appeals.

Background

[4]             The accused’s son, whom I will refer to as “D.J.” was born two months premature on November 25, 2002, weighing 2.5 pounds. He was the second child of the accused and his wife. Their older child is a daughter. The trial judge found that realistically, D.J. could not have been circumcised at the time of his birth, nor was the accused of a mind to have him circumcised at that time.

[5]             The trial judge found that over the years that followed D.J.’s birth, as a result of reading that he undertook, the accused changed his world view. He came to understand that there was great utility in keeping the laws of Moses including that of circumcision. She found that the accused decided that because so many disasters had befallen his family, he had to “make things right with God” and that he searched for local people with whom he could discuss the ideas in the books that he had read.

[6]             The trial judge found that before attempting to circumcise his son, the accused undertook further research which included consultation with two rabbis and four physicians. He asked the doctors to perform the procedure, but was told that the procedure would require a general anaesthetic which could not be justified for a boy of his son’s age. He attempted to enrol in a course which he understood trained mohels to perform circumcisions, but was told that only trained doctors were permitted to take that course.

[7]             At para. 129 of her reasons for judgment, the trial judge summarized her findings of fact:

I conclude that the Crown has proven the following relevant facts beyond a reasonable doubt:

·                  The accused did not have the knowledge, experience, or skill to conduct a circumcision;

·                  As a result of circumcising himself a couple of years earlier -- causing his foreskin to bleed in nine places, requiring the assistance of 911 and sutures in hospital, and suffering an infected penis -- the accused was aware of the dangers of performing a circumcision on his son;

·                  The accused's extensive research on the Internet showed the dangers of home circumcision;

·                  D.J. did not (and could not, in law) consent to his father circumcising him;

·                  It was unrealistic to believe that D.J. or any four-year-old boy could lie still while the accused cut his foreskin; indeed, the accused's hand slipped when D.J. shuddered and cried;

·                  The accused could not legally consent as D.J.'s parent to a home circumcision performed by the accused;

·                  The kitchen was not a sterile, or even a sanitary, environment in which to perform a circumcision;

·                  The accused inappropriately gave his son a quantity of alcohol prior to the circumcision;

·                  The accused inappropriately utilized a cedar cutting board that was likely to harbour bacteria;

·                  The blade used by the accused was not as sharp or efficient as a surgical instrument;

·                  The accused inappropriately used a veterinary powder, Wonder Dust, on D.J.'s bleeding penis. Wonder Dust is suitable for use on horses and livestock but not humans, and is clearly labelled as such;

·                  The lack of funds and the imminence of Passover did not create any necessity to circumcise D.J.;

·                  D.J. suffered bodily harm: his penis bled at the time of the circumcision and later that night, and it was obviously painful as he cried on both occasions;

·                  D.J. slept or rested for a couple of days after the circumcision -- even when he got up on the third day, he was moving cautiously and carefully to avoid his penis rubbing against his legs; and

·                  It was necessary to hospitalize D.J. in order to remove the black tarry Wonder Dust that had adhered to D.J.'s penis and to properly circumcise him so as to prevent any disfigurement and functional impairment.

[8]             Dr. Afshar was the surgeon who treated D.J. He examined D.J. on April 6, 2007, after he had been told that the accused had attempted a home circumcision on him on April 2, 2007. His evidence was that he observed a black ash-like material covering most of the penile shaft and he was unable to retract the foreskin in order to examine the tip of the penis. He could not remove the ash-like material with gentle methods of washing.

[9]             Dr. Afshar took D.J. to the operating room on an urgent basis. D.J. was given a general anaesthetic and Dr. Afshar removed the very adherent ash-like material with scissors. Dr. Afshar removed the black ash with sharp scissors to expose the whole area. There was some superficial necrosis of the deeper tissue or dead fascia on the dorsal shaft of the penis just below the tip.

[10]         Dr. Afshar also gave evidence that if he had not completed the circumcision, D.J.'s penis would have had a very abnormal appearance as the flap of foreskin stuck out on two sides like two arms. The cut may have healed in an uncontrolled fashion. D.J. would have had a scar which might have been irregular and unsightly. Tissue is elastic but scar tissue is hard and inflexible and D.J. may have had a trapped penis -- where the tip cannot come out through the foreskin. In cross-examination, he confirmed that the likelihood of a trapped penis was high.

Issues on Appeal

[11]         In its appeal, the Crown contends that the trial judge erred in law in failing to convict the accused of all three counts of the indictment.

[12]         On his appeal, the accused contends that the trial judge erred by failing to correctly apply the law regarding criminal negligence causing bodily harm in the context of a sincere religious belief in circumcision.

[13]         In essence, the issue to be decided is what, if any, criminal provisions are applicable to a lay person who performs a circumcision on his or her own child in the circumstances that pertained in this case.

Discussion

          a)       The Crown Appeal

[14]         The Crown's right of appeal from an acquittal of an indictable offence is limited to "any ground of appeal that involves a question of law alone": Criminal Code, s. 676(1)(a).

[15]         In R. v. J.M.H., 2011 SCC 45, Mr. Justice Cromwell, for a unanimous Court explained at para. 28:

R. v. Morin, [1992] 3 S.C.R. 286, lists this as one category of cases in which the trial judge's assessment of the evidence may give rise to an error of law. As Sopinka J. put it, at p. 294:

If a trial judge finds all the facts necessary to reach a conclusion in law and in order to reach that conclusion the facts can simply be accepted as found, a Court of Appeal can disagree with the conclusion reached without trespassing on the fact-finding function of the trial judge. The disagreement is with respect to the law and not the facts nor inferences to be drawn from the facts. The same reasoning applies if the facts are accepted or not in dispute.

In short, the appellate court can simply apply the trial judge's findings of fact to the proper legal principles; the trial judge's error, if there is one, may safely be traced to a question of law rather than to any question about how to weigh the evidence.

[16]         At para. 29, under the heading of “An Assessment of the Evidence Based on a Wrong Legal Principle Is an Error of Law”, Cromwell J. continued:

This is another category mentioned in Morin. In that case, Sopinka J. stated at p. 295, “Failure to appreciate the evidence cannot amount to an error of law unless the failure is based on a misapprehension of some legal principle.” In B. (G.), Wilson J. added important cautionary words concerning this basis for appellate intervention:

... it will be more difficult in an appeal from an acquittal to establish with certainty that the error committed by the trial judge raised a question of law alone because of the burden of proof on the Crown in all criminal prosecutions and the increased importance of examining critically all evidence that may raise a reasonable doubt. [p. 75]

[17]         Sections 265, 267 and 268(1) and (2) of the Code are engaged by the Crown’s appeal and provide in part that:

265. (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

...

            (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

            (3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

...

(d) the exercise of authority.

            267. Every one who, in committing an assault,

(a) carries, uses or threatens to use a weapon or an imitation thereof, or

(b) causes bodily harm to the complainant,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

...

            268.(1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

            (2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

[18]         The accused contends that the concept of freedom of religion ought to have been accepted by the trial judge as a defence to the charge of criminal negligence causing bodily harm. If this concept is a defence to that charge, then it must be considered in the context of the Crown’s appeal of the acquittals as well.

[19]         In R.B. v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, Mr. Justice La Forest, writing for the majority, clarified the distinction between religious beliefs and religious practices. At paras. 104-105 and 107 he explained:

104      Like the other provisions of the Charter, s. 2(a) must be given a liberal interpretation with a view to satisfying its purpose: see Re B.C. Motor Vehicle Act, supra. In R. v. Big M Drug Mart Ltd., supra, Dickson J. stated, at p. 336:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice of by teaching and dissemination. But the concept means more than that.

105      In R. v. Jones, supra, I observed that freedom of religion encompassed the right of parents to educate their children according to their religious beliefs. In P. (D.) v. S. (C.), [1993] 4 S.C.R. 141, a case involving a custody dispute in which one of the parents was a Jehovah's Witness, L'Heureux-Dubé J. stated that custody rights included the right to decide the child's religious education. It seems to me that the right of parents to rear their children according to their religious beliefs, including that of choosing medical and other treatments, is an equally fundamental aspect of freedom of religion.

...

107      However, as the Court of Appeal noted, freedom of religion is not absolute. While it is difficult to conceive of any limitations on religious beliefs, the same cannot be said of religious practices, notably when they impact on the fundamental rights and freedoms of others. The United States Supreme Court has come to a similar conclusion; see Cantwell v. Connecticut, 310 U.S. 296 (1940). In R. v. Big M Drug Mart Ltd., supra, this Court observed that freedom of religion could be subjected to "such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others" (p. 337). Similarly, in P. (D.) v. S. (C.), supra, L'Heureux-Dubé J. wrote, in obiter, at p. 182:

            I am of the view, finally, that there would be no infringement of the freedom of religion provided for in s. 2(a) were the Charter to apply to such orders when they are made in the child's best interests. As the Court has reiterated many times, freedom of religion, like any freedom, is not absolute. It is inherently limited by the rights and freedoms of others. Whereas parents are free to choose and practise the religion of their choice, such activities can and must be restricted when they are against the child's best interests, without thereby infringing the parents' freedom of religion.

[Emphasis added.]

[20]         The Supreme Court of Canada further discussed religious freedom in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, where at para. 32 Chief Justice McLachlin for the majority explained:

[32]      An infringement of s. 2(a) of the Charter will be made out where: (1) the claimant sincerely believes in a belief or practice that has a nexus with religion; and (2) the impugned measure interferes with the claimant's ability to act in accordance with his or her religious beliefs in a manner that is more than trivial or insubstantial: Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, and Multani. "Trivial or insubstantial" interference is interference that does not threaten actual religious beliefs or conduct. As explained in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 759, per Dickson C.J.:

The purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one's perception of oneself, humankind, nature, and, in some cases, a higher or different order of being. These beliefs, in turn, govern one's conduct and practices. The Constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened. For a state-imposed cost or burden to be proscribed by s. 2(a) it must be capable of interfering with religious belief or practice. In short, legislative or administrative action which increases the cost of practising or otherwise manifesting religious beliefs is not prohibited if the burden is trivial or insubstantial: see, on this point, R. v. Jones, [1986] 2 S.C.R. 284, per Wilson J. at p. 314.

[Emphasis added by McLachlin C.J.]

[21]         The religious views of the accused are not impeded by the provisions of the Criminal Code in issue in this case. The accused’s religion did not demand that the circumcision be performed by the accused himself, nor did the trial judge find that religious necessity dictated that the circumcision be performed immediately so that the accused was left with no alternative but to perform the operation himself. Thus, it is not the accused’s religious beliefs that are at issue, but the rights and best interests of D.J. with respect to whether he should have been subjected to an attempted circumcision by his father in the circumstances and conditions under which it was attempted.

          b)       Consent

[22]         In his oral submissions, counsel for the accused conceded that D.J. could not, in law, consent to his father circumcising him. Instead, he contended that parental consent to circumcision of a child is a legitimate consent for the procedure; otherwise no circumcision could be performed on a child.

[23]         The accused further contended that the consent can be for a non-physician to perform the procedure, otherwise those, such as mohels, who are not necessarily physicians, would not be able to perform the procedure.

[24]         The third step in the accused’s analysis of the issue is that if a parent can consent to the performance of the procedure on his or her son by a non-physician, then there is no juristic reason why they cannot perform the procedure themselves, with, in essence, their own consent on behalf of the son. It is unnecessary to resolve that question in this case. Even if a parent could consent to the performance of such a procedure on his or her child, consent cannot be found in the circumstances of this case.

[25]         In support of the third step in his analysis, the accused referred to the reasoning of the Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76. At issue there were the assault provisions of the Criminal Code, which prohibit intentional, non-consensual application of force to another and s. 43 of the Code which excludes from that offence the reasonable physical correction of children by their parents and teachers.

[26]         Section 43 provides:

Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.

[27]         At paras. 39-40, Chief Justice McLachlin, writing for a majority of six of the nine members of the Court, considered the phrase “reasonable under the circumstances” that is found in the section:

[39]      Finally, judicial interpretation may assist in defining "reasonable under the circumstances" under s. 43. It must be conceded at the outset that judicial decisions on s. 43 in the past have sometimes been unclear and inconsistent, sending a muddled message as to what is and is not permitted. In many cases discussed by Arbour J., judges failed to acknowledge the evolutive nature of the standard of reasonableness, and gave undue authority to outdated conceptions of reasonable correction. On occasion, judges erroneously applied their own subjective views on what constitutes reasonable discipline -- views as varied as different judges' backgrounds. In addition, charges of assaultive discipline were seldom viewed as sufficiently serious to merit in-depth research and expert evidence or the appeals which might have permitted a unified national standard to emerge. However, "[t]he fact that a particular legislative term is open to varying interpretations by the courts is not fatal": Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, at p. 1157 . This case, and those that build on it, may permit a more uniform approach to "reasonable under the circumstances" than has prevailed in the past. Again, the issue is not whether s. 43 has provided enough guidance in the past, but whether it expresses a standard that can be given a core meaning in tune with contemporary consensus.

[40]      When these considerations are taken together, a solid core of meaning emerges for "reasonable under the circumstances", sufficient to establish a zone in which discipline risks criminal sanction. Generally, s. 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. On the basis of current expert consensus, it does not apply to corporal punishment of children under two or teenagers. Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. Coupled with the requirement that the conduct be corrective, which rules out conduct stemming from the caregiver's frustration, loss of temper or abusive personality, a consistent picture emerges of the area covered by s. 43. It is wrong for law enforcement officers or judges to apply their own subjective views of what is "reasonable under the circumstances"; the test is objective. The question must be considered in context and in light of all the circumstances of the case. The gravity of the precipitating event is not relevant.

[28]         Thus, it is only force which is reasonable in the circumstances that can be imposed on a child for the purposes of correction pursuant to s. 43 of the Code. Similarly, the extent of the force that a parent can consent to being applied to his or her child for other purposes is to be assessed on an objective basis. The trial judge made clear findings of fact in relation to the circumstances in which this force was applied. First, she found that the accused did not have the knowledge, experience, or skill to conduct a circumcision. Second, that the kitchen where he attempted the procedure was not a sterile, or even a sanitary environment in which to perform a circumcision, and that the accused inappropriately utilized a cedar cutting board, and a blade that was not as sharp or efficient as a surgical instrument. Finally, she found that the accused inappropriately used a veterinary powder, Wonder Dust, on D.J.'s bleeding penis.

[29]         These findings are supported by the evidence, and preclude a finding that the force imposed upon D.J. in the performance of the attempted circumcision was reasonable in the circumstances, or in D.J.’s best interests. Thus, the conclusion of the trial judge that the accused could not legally consent as D.J.'s parent to a home circumcision performed by him is consistent with the reasoning of La Forest J. in R.B. and with that of the majority in Canadian Foundation for Children, Youth and the Law.

          c)       Aggravated Assault

[30]         In addition to meeting the requirements to prove assault, aggravated assault requires the mental element of objective foresight of bodily harm. In R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134 at para. 22, Mr. Justice Binnie explained:

The mens rea for aggravated assault is the mens rea for assault (intent to apply force intentionally or recklessly or being wilfully blind to the fact that the victim does not consent) plus objective foresight of the risk of bodily harm: R. v. Godin, [1994] 2 S.C.R. 484, at p. 485, and Cuerrier, supra, at para. 95.

[31]         The trial judge in this case found that the accused had objective foresight of the risk of bodily harm to D.J. based upon both his research and his own circumcision. She addressed the matter of bodily harm at para. 131 of her reasons:

In this case, D.J. was clearly hurt when his father cut his foreskin -- he cried at the time of the circumcision and later that night when the cut opened and bled. There was obviously considerable interference with D.J.'s comfort for a number of days. D.J. was immobilized wholly or partially for a few days. I accept Dr. Afshar's evidence that surgery was necessary to repair the damage or injury that the accused had done to D.J.'s penis and to prevent the likely disfigurement. I would not characterize the injury as merely transient or trifling.

[Emphasis added.]

[32]         The Crown contends that the trial judge erred in law by failing to address “wounding” in her consideration of s. 268(1) of the Code, and because her analysis in para. 133 failed to follow the wording of the section.

[33]         At para. 133 the trial judge concluded:

... D.J. was not maimed and his life was not seriously endangered. Dr. Afshar's operating prevented D.J. from suffering a disfigurement. The Crown says that the accused's actions inflicted a wound which constituted an aggravated assault. Within the context of the offence, a "wound" is generally defined as a breaking of the skin in a way that causes more than minor bodily harm. While it is true that a "wound" to D.J.'s penis resulted from the circumcision, it is not the type of injury that constitutes an aggravated assault. The Code contains a number of escalating offences against the person which reflect the severity of the assault or harm and the resulting penalties. For instance, simple assault, if charged as an indictable offence, carries with it a maximum sentence of five years imprisonment. Assault with a weapon or causing bodily harm, if charged as an indictable offence, carries a maximum penalty of 10 years imprisonment. Aggravated assault is an indictable offence only with a maximum penalty of 14 years imprisonment. Causing bodily harm by criminal negligence is an indictable offence punishable by a maximum sentence of 10 years imprisonment.

[34]         It appears that there is an inconsistency between paragraphs 131 and 133 of the trial judge’s reasons. Be that as it may, the trial judge recognized that a wound to D.J. resulted from the attempted circumcision. She concluded at para. 134 that it was too minor to constitute aggravated assault on the basis that the degree of bodily harm he suffered was not analogous to a maiming or a disfigurement, and his life was not endangered.

[35]         Dr. Afshar’s evidence, which the trial judge referred to, was that if he had not completed the circumcision, D.J.'s penis would have had a very abnormal appearance as the flap of foreskin stuck out on two sides like two arms. The trial judge found that it was necessary to hospitalize D.J. in order to remove the black tar-like Wonder Dust that had adhered to D.J.'s penis and to properly circumcise him so as to prevent any disfigurement and possible functional impairment.

[36]         The necessary element of harm required to establish the offence of aggravated assault is made out if the accused’s actions disfigured the complainant. It is clear in this case that the accused’s actions disfigured D.J., and, as the trial judge found at para. 131 of her reasons, that disfigurement required surgery and a general anaesthetic to correct that disfigurement.

[37]         The trial judge did not consider this aspect of s. 268(1), and erred in law in failing to do so. Had she done so, it seems inexorable that she would have convicted the accused of the second count of the indictment. I would therefore allow the Crown appeal with respect to acquittal on the charge of aggravated assault contrary to s. 268(2) of the Code.

[38]         Having reached this conclusion, it is unnecessary to address the Crown’s alternate submission respecting the included offence of assault causing bodily harm. It is necessary, however, to consider the application of the rule against multiple convictions for the same offence set out in R. v. Kienapple, [1975] 1 S.C.R. 729.

[39]         The Crown concedes that that rule would be offended if the accused were to have convictions entered against him on both criminal negligence causing bodily harm and aggravated assault. I will return to this issue after discussing the balance of the Crown’s appeal and the appeal by the accused.

          d)       Assault with a Weapon

[40]         At paras. 136-138 of her reasons, the trial judge addressed the charge of assault with a weapon:

[136]    Finally, the Crown submits that the accused committed an assault with a weapon. Section 2 of the Code defines "weapon" as "any thing used, designed to be used or intended for use ... in causing death or injury to any person."

[137]    The blade used by the accused to cut D.J.'s penis was not designed or intended for use in causing death or injury. The accused did not wield the blade as a weapon.

[138]    I find the accused not guilty of assault with a weapon.

[41]         Section 2 of the Code defines “weapon” as:

any thing used, designed to be used or intended for use

(a) in causing death or injury to any person, or

(b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm.

[42]         It was open to the trial judge to determine whether the blade that was used by the accused was designed to be used as a weapon, and she determined that it was not. There is no basis upon which this Court could interfere with that finding.

[43]         Similarly, it was open to the trial judge to find, as she did, that the accused did not wield the blade as a weapon, and there is no basis upon which this Court could interfere with that finding.

[44]         But, relying on the reasoning in R. v. Lamy, 2002 SCC 25, [2002] 1 S.C.R. 860, the Crown contends that the accused’s subjective intention is irrelevant vis a vis the charge of assault with a weapon. In Lamy, Madam Justice Arbour, for a unanimous Court, commented at paras. 15-16:

15        The Court of Appeal also failed to distinguish the various mental elements required to make an object a weapon under s. 2. As indicated earlier, the French version of the definition of "weapon" ("arme") in s. 2, taken literally, could suggest that for an object to become a weapon, it must be designed, used, or intended to be used for the purpose of causing injury. The English version provides a clarification that is consistent with a sound interpretation of the intent required for an object to become a weapon in all the different sets of circumstances contemplated by the provision. In contrast to the design, the use or the intended use of an object to threaten or intimidate, when an object is actually used in causing death or injury, the English text does not import a requirement that the object be used "for the purpose" of killing or injuring, but merely "in causing" death or injury.

16        It is sensible to distinguish between the design of an object and its intended use from its actual use in causing injury in the commission of a sexual assault. A causal connection must obviously exist between the injury caused by the sexual assault and the use of an object while performing the assault. For instance, if an accused compelled a victim to wear a particular article of clothing while he sexually assaulted her, even if injuries were sustained in the assault, the piece of clothing would obviously not become a weapon. In the same way, the accused must have knowingly or recklessly used the object without the consent of the victim in circumstances where injury was reasonably foreseeable. When an accused, as here, sexually assaults the complainant, by using force against her without her consent, and causes her injuries by the use of such force which includes forcible penetration with an object, I think that it falls squarely within the definition of s. 2 to conclude that the object was used in causing injury, thereby constituting a weapon.

[45]         There can be no question that the accused intended to use and did use a blade to cause an injury to D.J. A surgeon uses a blade in the course of a medical operation to make an incision. The blade still causes injury, but injury is inflicted for a specific purpose, whether that is for curative or cosmetic results. The result is nonetheless an injury. What prevents that conduct from constituting an offence under s.267(a) of the Code is the operation of s. 45 of the Code which provides that:

45.  Every one is protected from criminal responsibility for performing a surgical operation on any person for the benefit of that person if

(a) the operation is performed with reasonable care and skill; and

(b) it is reasonable to perform the operation, having regard to the state of health of the person at the time the operation is performed and to all the circumstances of the case.

[46]         The application of that section is not restricted to surgeons alone, but seemingly can apply to anyone performing a surgical operation on any person for the benefit of that person.

[47]         At para. 132 of her reasons, the trial judge found:

I note that it is the accused's conduct on April 2, 2007 that is in issue in this case, not the legality of the practice of home circumcision generally. I find the accused's actions to have been criminally negligent and that his conduct caused bodily harm to D.J. His conduct constituted a marked and substantial departure from the standard of care of a reasonable person in all the circumstances and showed a wanton and reckless disregard for his son's safety. Accordingly, the Crown has proved the elements of the offence charged in count 1.

[48]         The trial judge found that the accused did not perform the attempted circumcision with reasonable care and skill and also that it was not reasonable for him to have undertaken the procedure. He therefore could not avail himself of the protection of s. 45 of the Code. If the judge’s conclusion that the accused's actions were criminally negligent and that his conduct caused bodily harm to D.J. is not disturbed, then all of the elements of the charge of assault with a weapon were proved and the judge erred in law in acquitting him of assault with a weapon. I would therefore allow the Crown’s appeal on the charge of assault with a weapon.

          e)       The Accused’s Appeal

[49]         Sections 216, 219 and 221of the Criminal Code are engaged by the accused’s appeal and provide that:

            216. Every one who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in so doing.

...

            219. (1) Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

            (2) For the purposes of this section, “duty” means a duty imposed by law.

...

            221. Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

[50]         As I have already indicated, the defence of consent to the attempted circumcision cannot succeed in this case.

[51]         Nonetheless, the accused contends that in preparation for his attempted circumcision of D.J., he studied circumcision, sought and obtained medical, non-medical, and Rabbinical advice, consulted the Internet, attempted to obtain a hemostat (a device to clamp off a bleeding vein), researched “blood stop powders”, purchased “Wonder Dust” and brand new blades, used clean plastic sheets, washed the instruments he intended to use and then boiled them, used a plastic cutting board, and gave D.J. wine to distract him and put him in a cheerful mood before the attempted circumcision.

[52]         The findings of fact by the trial judge, however, were that the accused ignored the part of his research which led him to horrible pictures of what could go wrong, and also the medical advice that discouraged circumcising a four-year-old boy. The trial judge also found that the accused did not have the knowledge, experience, or skill to conduct a circumcision, was aware of the dangers of performing a circumcision on his son, and that his kitchen was not a sterile, or even a sanitary, environment in which to perform a circumcision. She also found that the accused acted inappropriately in giving his son wine and in utilizing a cedar cutting board that was likely to harbour bacteria while performing the procedure.

[53]         The trial judge further found that the blade used by the accused in the attempted circumcision was not as sharp or efficient as a surgical instrument and that he inappropriately used a veterinary powder. The result was that D.J. had to be hospitalized in order to remove the black tarry Wonder Dust that had adhered to his penis and to properly circumcise him so as to prevent disfigurement and possible functional impairment.

[54]         The accused does not challenge the findings of fact by the trial judge. Instead, he contends that she erred by using what his counsel described as an “objective-only test of negligence” without considering “the effect of sincere religious belief” on the accused’s state of mind.

[55]         The trial judge explained at para. 103 of her reasons that:

In this case, proof of criminal negligence requires that the accused showed wanton or reckless disregard for the safety of his son. In order to establish the mens rea of negligence, the Crown does not have to prove subjective foresight on the part of the accused of the danger of bodily harm. Foresight of the consequences is normally inferred from the facts. The Crown must establish beyond a reasonable doubt that a reasonable person, in the accused's circumstances, would have appreciated that his conduct would expose his son to the danger of bodily harm, and that to engage in the circumcision, in those circumstances, was wanton or reckless. Here, there were numerous risks: excessive bleeding, infection, and a damaged or a disfigured penis.

[56]         At para. 120 she then concluded:

It follows that, in this case, the accused's subjective beliefs that he was compelled to perform the circumcision for religious reasons and that he had taken careful measures to ensure that it could be done safely were insufficient. The appropriate standard of reasonable knowledge, skill and care to perform such an act is that described by Dr. Afshar. The accused ignored the advice of doctors and urologists and, instead, relied on his experience gained from his own badly performed circumcision and the experience of lay persons with whom he communicated over the Internet and the telephone.

[57]         The accused contends that in R. v. Tutton, [1989] 1 S.C.R. 1392, the Supreme Court of Canada determined that an objective only test was insufficient to establish criminal negligence, and that the state of mind of the accused had to be considered in order to demonstrate if there had been wanton or reckless disregard for life or safety.

[58]         In Tutton, the parents of a five-year-old diabetic believed in faith healing. Based on their belief that their child had been miraculously cured, they withheld insulin that had been prescribed for him from their son, who died as a result.

[59]         Justices Beetz, Estey and LeDain heard the appeal, but took no part in the judgment. The remainder of the Court divided three to three. Mr. Justice McIntyre and Madam Justice L'Heureux-Dubé, with whom Mr. Justice Lamer, as he then was, agreed, favoured a test of a marked departure from the objective norm to make out the offence of causing death through criminal negligence.

[60]         Chief Justice Dickson, Madam Justice Wilson and Mr. Justice La Forest ruled that the test to be applied was that of minimal subjective awareness with emphasis on the concept of wilful blindness. In the years that followed, appellate Courts tended to favour the approach described by McIntyre and L'Heureux-Dubé JJ.

[61]         The matter of which test was to be applied to a charge of criminal negligence was definitively resolved by the Supreme Court of Canada in R. v. F. (J.), 2008 SCC 60, [2008] 3 S.C.R. 215. In that case, Mr. Justice Fish, for the majority, concluded at para. 9:

On the count alleging criminal negligence, the Crown was bound to show that the respondent's very same omission represented a marked and substantial departure (as opposed to a marked departure) from the conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk to the life of his child or, alternatively, gave no thought to that risk: R. v. Tutton, [1989] 1 S.C.R. 1392, at pp. 1430-31; R. v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. C.A.).

[62]         R. v. F. (J.) combines elements of both conduct and fault for proof of criminal negligence, as it requires behaviour that creates a risk and fault in going through with the behaviour when the accused ought to have known that the conduct would create the risk. The trial judge found that the necessary elements of both risk and fault in going through with the behaviour when the accused ought to have known that the conduct would create the risk were made out in this case.

[63]         However, subjective factors may not be entirely irrelevant. In R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, the Supreme Court of Canada created a “modified” objective test to determine the fault element for negligence based criminal offences. At para. 8 Charron J., for the majority, wrote:

... unlike the test for civil negligence which does not concern itself with the mental state of the driver, the modified objective test for penal negligence cannot ignore the actual mental state of the accused. Objective mens rea is based on the premise that a reasonable person in the accused's position would have been aware of the risks arising from the conduct. The fault lies in the absence of the requisite mental state of care. Hence, the accused cannot avoid a conviction by simply stating that he or she was not thinking about the manner of driving. However, where the accused raises a reasonable doubt whether a reasonable person in his or her position would have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal. The analysis is thus contextualized, and allowances are made for defences such as incapacity and mistake of fact. This is necessary to ensure compliance with the fundamental principle of criminal justice that the innocent not be punished.

[Emphasis in original.]

[64]         I am unable to see that any application of the modified objective test referred to by Charron J. applies to the accused in this case. The trial judge had no doubt that the accused was aware of the risks arising from the conduct he planned to engage in, and did engage in. The reliance placed by the accused on Tutton therefore cannot prevail in the face of R. v. F. (J.), and the accused’s appeal must fail. 

          f)        The Disposition of the Crown Appeal

[65]         The principle in Kienapple was clarified by the Supreme Court of Canada in R. v. Prince, [1986] 2 S.C.R. 480, where Chief Justice Dickson explained that there had to be both a factual and a legal nexus between charges before the rule against multiple convictions arising from the same conduct could be invoked. At para. 24, the Chief Justice commented:

Numerous other cases can be cited to illustrate that a single act of an accused can involve two or more delicts against society which bear little or no connection the one to the other. R. v. Logeman (1978), 5 C.R. (3d) 219 (B.C.C.A.) involved charges of driving while suspended and impaired driving; R. v. Lecky (1978), 42 C.C.C. (2d) 406 (N.S. Co. Ct.), contributing to juvenile delinquency and trafficking in a narcotic; R. v. Earle (1980), 24 Nfld. & P.E.I.R. 65 (Nfld. C.A.), breach of recognizance and possession of a narcotic; R. v. Pinkerton (1979), 46 C.C.C. (2d) 284 (B.C.C.A.), breach of probation and common assault; R. v. Pere Jean Gregoire de la Trinite (1980), 60 C.C.C. (2d) 542 (Que. C.A.), contempt of court and unlawfully detaining children. Notwithstanding that a single act of the accused appears in each of these cases to have given rise to two charges, Kienapple was held to be inapplicable. In my view, these cases were correctly decided. If an accused is guilty of several wrongs, there is no injustice in his or her record conforming to that reality. In short, I agree with the following remarks of Lambert J.A. in R. v. Harrison (1978), 7 C.R. (3d) 32 (B.C.C.A.), at p. 37:

It is not sufficient to consider the charges and to ask whether conviction on one will involve conviction on another. It is not sufficient to consider the facts and to ask whether only one act is involved. The facts and the charges must be considered together and in their relationship to each other.

There must be a relationship of sufficient proximity firstly as between the facts, and secondly as between the offences, which form the basis of two or more charges for which it is sought to invoke the rule against multiple convictions.

[66]         Here, as in many cases, the factual nexus is met, as the same act of the accused is the foundation for both the charge of criminal negligence causing bodily harm and the charge of assault with a weapon. The legal nexus or proximity between the two offences is met if there are no additional or distinguishing elements between the two charges; R. v. Prince at para. 32.

[67]         At para. 34, Dickson C.J. wrote:

I now turn briefly to the question of when an element of an offence sufficiently corresponds to another element so that it cannot be regarded as additional or distinct. When can it be said that elements are "substantially the same" or "alternative" the one to the other? This is a question which defies precise answers. Differences of degree are often important and, as La Forest J. has pointed out, abstract logic must be supplemented by an awareness of practical considerations in ascertaining Parliament's intention in creating different offences: Krug, supra, p. 269. Without purporting to be exhaustive, I believe that there are at least three ways in which sufficient correspondence between elements can be found, each of which is subject always to the manifestation of a legislative intent to increase punishment in the event that two or more offences overlap.

[68]         The three examples given by Chief Justice Dickson were first, that an element may be a particularization of another element; second, where there is more than one method, embodied in more than one offence, to prove a single delict; and third, where there is sufficient correspondence between elements to sustain the Kienapple principles.  The Chief Justice explained that the third example arises when Parliament in effect deems a particular element to be satisfied by proof of a different nature, not necessarily because logic compels that conclusion, but because of social policy or inherent difficulties of proof. 

[69]         Are there distinct elements as between criminal negligence causing bodily harm and aggravated assault? The former offence can be proven in one of two ways; either by establishing that the accused showed wanton or reckless disregard for the lives or safety of other persons in doing anything, or in omitting to do anything that it is his duty to do, which causes bodily harm to another. In this case, the trial judge found at para. 132 of her reasons, which I have set out above, that the offence of criminal negligence causing bodily harm had been made out by the Crown on the basis of what the accused did, not what he omitted to do.

[70]         The mental element of assault, defined as “intentionally” in s. 265(1)(a) of the Code, includes recklessness. In R. v. Dawydiuk, 2010 BCCA 162, 253 C.C.C. (3d) 493, Madam Justice Rowles held at para. 29, “In s. 265(1)(a), the word ‘intentionally’ simply means, in the words of Ritchie J., [The Queen v. George, [1960] S.C.R. 871, 128 C.C.C. 289] ‘not done by accident or through honest mistake.’”

[71]         The other element of the two offences is the infliction of bodily harm on another person. While the degree of injury required can be greater for the offence of aggravated assault, as I have explained, the required degree of injury for both offences was proven by the Crown in this case.

[72]         As the Crown concedes that that principles in Kienapple would be offended if the accused were to have convictions entered against him on both criminal negligence causing bodily harm and aggravated assault, following the reasoning in Prince at para. 33, it is the conviction on the lesser offence that should be stayed.

[73]         The maximum sentence for criminal negligence causing bodily harm is ten years, whereas the maximum sentence for aggravated assault is fourteen years. As I would uphold the finding of criminal negligence causing bodily harm, and allow the appeal of the finding on the charge of aggravated assault, I would direct a stay of the conviction on the lesser charge of criminal negligence causing bodily harm, conditional upon the conviction on the greater charge.

[74]         As I have also indicated above, all of the elements of the charge of assault with a weapon were proved and the judge erred in law in acquitting the accused of that charge.

[75]         The Crown takes the position that, unlike the entry of a conviction for aggravated assault, the entry of a conviction for assault with a weapon is not precluded under the Kienapple principles if the accused is also convicted of criminal negligence causing harm. I agree with the Crown on this submission, and find that the submission is equally applicable if a conviction for aggravated assault rather than one for criminal negligence causing harm is entered.

[76]         In Dawydiuk, this Court upheld convictions for both criminal negligence in the operation of a motor vehicle causing bodily harm and assault using a weapon where the motor vehicle was also found to be a weapon. The question of whether such dual convictions offended the principles in Kienapple was not argued in the case.

[77]         The charge of assault with a weapon requires proof of an element that was not required to make out the proof of aggravated assault; that is, the use of a weapon. Clearly the first two examples given by Chief Justice Dickson in Prince are not met. What then of the third example? I am unable to conclude that there is sufficient correspondence between elements required to prove the two offences to satisfy the third example, and thus conclude that a conviction on both the first and the third counts alleged in the indictment should be entered.

          g)       Sentence

[78]         The sentence imposed upon the accused for criminal negligence causing bodily harm was 12 months in prison, 2 years probation, and a 10-year prohibition on owning a firearm. He is appealing that sentence. As a result of the disposition of these appeals, the matter of the sentencing of the accused will have to be reconsidered, and is so remitted to the Supreme Court of British Columbia for reconsideration.

Conclusion

[79]         I would allow the Crown’s appeal, and enter a stay of the conviction for criminal negligence causing bodily harm, conditional upon the conviction for aggravated assault. I would dismiss the accused’s appeal and remit the matter of sentencing to the Supreme Court for reconsideration.

“The Honourable Mr. Justice Hinkson”

I agree:

“The Honourable Chief Justice Finch”

I agree:

“The Honourable Madam Justice Kirkpatrick”