IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. D.J.W.,

 

2009 BCSC 1397

Date: 20091014

Docket: 24778

Registry: Vancouver

Regina

v.

D.J.W.

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 complainant’s family members.

 

Before: The Honourable Madam Justice Allan

 

Reasons for Judgment

Counsel for the Crown:

Daniel J. Porte

Counsel for the Accused:

Douglas Christie

Place and Date of Trial:

Vancouver, B.C.
September 8-11, 14-18

 and 21-23, 2009

Place and Date of Judgment:

Vancouver, B.C.
October 14, 2009


 

[1]             The accused is charged with three counts:  criminal negligence causing bodily harm pursuant to s. 221 of the Criminal Code, aggravated assault pursuant to s. 268(2) of the Code, and assault with a weapon pursuant to s. 267(a) of the Code. The charges arise from the accused’s attempt to circumcise his four-year-old son DJ at home on April 2, 2007.  

[2]             Mr. Christie, counsel for the accused, seeks relief in the nature of a constitutional exemption under s. 24(1) of the Charter of Rights and Freedoms (the “Charter”). He indicated at the start of the trial that the facts of the attempted circumcision are not in dispute.  He said that the accused, who is not Jewish, but follows both the Old and New Testaments of the Bible, believed that it was necessary to circumcise his son before Passover.  He said that circumcision resulted from the accused’s desire to fulfill his religious duty.  He submits that the accused’s religious motivation negatives any criminal intent.   

[3]             At the commencement of the trial, the Crown noted that Mr. Christie had not given notice to the Attorneys General of B.C. and Canada pursuant to s. 8 of the Constitutional Question Act, R.S.B.C. 1996, c. 68.  Section 8(1) of that Act defines a “constitutional remedy” as “a remedy under s. 24(1) of the [Charter] other than a remedy consisting of the exclusion of evidence or consequential on such exclusion.”  Section 8 requires that notice be given to both Attorneys General of any challenge to the constitutional validity or constitutional applicability of any law, or of any application for a constitutional remedy.  Mr. Christie was directed to serve both Attorneys General with the appropriate notice under the Act by the end of the day.  Subsequently, the A.G. Canada’s office indicated that it did not intend to intervene.

[4]             At the end of the evidence, counsel confined their submissions to the issue of whether the Crown had proven the elements of the offences charged beyond a reasonable doubt.  The question of whether the accused was entitled to a constitutional exemption from the relevant legislation would only arise in the event that the Crown had proven its case on one or more of the charges.  

The Evidence

The accused and his family

[5]             The accused met his wife Gina W. in the Philippines in February 2000 and they married later that year in West Vancouver.  Although she is well educated and clearly intelligent, she incurred a serious brain injury in a horrific motor vehicle accident shortly after their marriage.  The accused was rendered unconscious and broke both wrists and an ankle in the accident.  He believes that he also suffered a minor brain injury.  He said that he has been to court several times in the last eight years, and has been sent to several psychiatrists who all concluded that he was sane and fit to stand trial.

[6]             Gina W. was in a coma for 21 days.  Subsequently, but while she was still in the hospital, she delivered their daughter MW.  The accused had serious conflicts with the nurses before and during the birth. As soon as MW was born, she was taken away from her parents by the Ministry of Children and Family Development and placed in care for eight months at the behest of the accused’s parents (to whom the accused had given a power of attorney).  The accused testified that his mother had told the hospital staff that he was dangerous, disabled, and brain injured in order to alienate them from him.  The accused was evicted from the hospital and told not to return.  

[7]             DJ was born two months premature on November 25, 2002.  He weighed 2.5 pounds. Realistically, he could not have been circumcised at that time.  However, the accused also testified that at the time of DJ’s birth, he did not believe in blood sacrifices such as killing the Passover lamb and circumcision, which he described as “the chief blood sacrifice”.  

[8]             In October 2003, Gina W. and the accused separated following an argument during which one of them called 911.  Gina W. said she phoned because she wanted the police to take the accused out of the house for a night.  The accused said that he phoned to have the police take her to a shelter for the night.  Although both spouses testified that there was some misunderstanding, the accused was charged with causing “fear of bodily harm” and a no contact order was imposed as a condition of his bail order until the charges were dropped six months later.  The couple then saw each other but decided to live apart to give one another other space, both physically and emotionally.  The accused saw the children every week for church and at other times.  The children were removed by the Ministry again in August 2006, although Gina W. was vague about the reasons – they apparently included allegations relating to domestic violence and the accused’s mental health.  The couple reunited when the children were removed.  The children were returned on October 2, 2006.

[9]             Gina W. is Catholic and she wanted the children to be raised as Catholics. The children attended church with her as well as with the accused. The accused was brought up as a Jehovah’s Witness but “disfellowshipped” prior to his marriage.  Gina W. testified that after MW was born and taken into care, the accused began to talk of his spiritual quest, started meeting with other people regarding that quest, and talking about matters that were inconsistent with her Catholic beliefs.  

[10]         As a result of communications over the Internet, the accused became aware of books written by Richard Hoskins.  He understood that Hoskins had a Biblical answer to all of the problems in society, including the number of abortions and homosexuals, and the national debt.  The accused said that Hoskins’ books changed his world view and he came to understand the great utility in keeping the laws of Moses.  Circumcision, which is one of those laws, is a covenant between man and God.  He decided that because so many disasters had befallen his family, he had to make things right with God.  He searched for local people with whom he could discuss the ideas in Hoskins’ books.  He discovered the A.C.P. (“Association”) and was given a book called The Other End of the World, by Roger Rusk which described the Bible as a legal document and discussed the covenants between man and God.

[11]         Gina W. assumed that DJ would be circumcised as a cultural rather than a religious rite.  She said that boys in the Philippines were circumcised when they were between the ages of 10 and 15.  She understood from her brothers that someone in the village without any formal training lined the boys up and circumcised them using a disinfectant and a pain killer. However, her brothers were circumcised by her aunt who was a doctor. 

Chronology of the accused’s “planning” for DJ’s circumcision

[12]         The accused read numerous books that discussed the issues raised in Hoskins’ books.  After some hesitation, he concluded that the Biblical laws requiring circumcision were still in place. He rejected what he considered the standard Christian view that baptism had replaced circumcision as the important religious rite. After DJ was born, the accused heard a seven-hour radio program on circumcision by George Gordon.  He considered that to be the final moment of his conversion and he had the program transcribed so that he could study it.  At that point, in late 2004 or early 2005, he decided that he had to be circumcised and that he would do it himself.

[13]         In preparation for his own circumcision, the accused read everything he could find about circumcision on the Internet.  There he saw horrible pictures of what could go wrong.  I note that this experience is inconsistent with his frequently expressed opinion that circumcision is an obvious and simple procedure.  On the Internet, he discussed circumcision with two Jewish men who lived in the U.S.  He thought they may have given him advice regarding pain relief.  He did not think to ask about how to prevent infection and he did not discuss the possibility of disfigurement or a failed surgery with them. One of the men said he had circumcised his nine-year-old son. The accused then searched the Bible for all references to circumcision. 

[14]         The accused also researched the various tools available to assist in the circumcision − clamps, shields, the plastibell, and the zenxiring.  He obtained a zenxiring from Germany in late 2004 or early 2005.

[15]         On the day that he circumcised himself, the accused had Band Aids, peroxide and a roll of gauze at hand as precautions against infection.  He placed the zenxiring, a little clear plastic ring, around his penis.  He understood that the purpose of the zenxiring was to act as an anaesthetic and to kill the foreskin in front of the ring so the accused would not feel it as he cut.  He felt some discomfort but left the ring on for a few hours.  He saw the skin turning black and concluded that he had stopped the blood flow.  He took a razor blade and started cutting his flesh.  When he got to the centre of the cut, one vein was still active and the blood came through. He said he thought that was interesting and wondered how to stop the blood, so he called the two Jewish men who had advised him.  They told him to pinch the vein and apply pressure.  The accused found that very difficult or impossible to do with the ring device on his penis.  The ring came off and, because the circumcision was not healed, the edges of the skin separated and he saw a gap of one inch between the two edges of the skin.  He covered it with gauze, but it kept bleeding.  He was not sure how to stop it.  He described his penis as a bit sore, with a dull throbbing. After 45 minutes, he called an ambulance.  But before that, he phoned his mother to tell her that he was a heretic and would never go back to her church.  He said he wanted to also give her one last chance to see if she would be harsh or sympathetic. She told him to call 911 and hung up.  She has not talked to him since.

[16]         The accused said the emergency room doctor looked at his penis and told him he had made a nice straight cut.   The doctor sutured the edges together. The accused declined a needle with anaesthesia because he was afraid the needle might break and he would have a broken needle in his penis.  He now has a small scar running around his penis but no disfigurement, impaired function, or entrapment. 

[17]         After his hospital attendance, he saw Dr. Robbertse, a general practitioner, a number of times to make sure he was healing properly.  Dr. Robbertse told him he had an infection and gave him polysporin, which healed the infection.

[18]         The accused said that his greatest regret was that he did not have access to sutures.  If he did, he would have sewed himself up.  He was worried that the Ministry would misconstrue the fact that he went to the hospital as proof that he botched his circumcision.

[19]         The accused conducted additional research before circumcising DJ.  During his Internet search, he discovered that in the Jewish Orthodox faith, circumcisions were performed by mohels, who used their long jagged fingernails to cut off the foreskin and separate it from the glans; they then sucked on the end of the penis to get rid of the blood and cleanse the wound.  He decided that he did not want a rabbi or a mohel to circumcise his son.  He did not concede in cross-examination that he knew that this practice was rarely if ever practiced in modern times in North America.  He did agree that he believed Reform Jews would not engage in that practice.

[20]         However, the accused also testified that he consulted two rabbis in Vancouver as part of his “due diligence” to see if having DJ circumcised by a mohel was an option.  One rabbi told him that it was not possible because DJ’s mother was not Jewish.  The other rabbi gave him the phone number of Dr. Neil Pollock.  The accused phoned Dr. Pollock who said he would not circumcise a four-year-old boy because he would require a general anaesthetic, and declined the accused’s request to assist him.  Dr. Pollock told him that he ran a course to train mohels in circumcision on the Internet.  The accused signed up for that course in February 2007; however, he was then told that Dr. Pollock only trained doctors.

[21]         The accused said he was aware that Dr. Pollock used an anaesthetic cream but he was unable to obtain it.  He agreed that the course involved a couple of days of intensive training – initially on dummies, then watching circumcisions, and then doing them under supervision.

[22]         The accused had never personally observed a circumcision other than his own.  At his preliminary inquiry, he testified he had never observed videos of circumcisions, but at trial, he said he had done so but forgotten that fact earlier.  He said that the lesson he learned from his own circumcision was that the most immediate danger is from bleeding.  He decided that his own circumcision had been too complicated and concluded that if he did his son’s circumcision with a simple quick cut, the bleeding would stop by itself.  He had tried to avoid all bleeding with his own circumcision but later believed that was wrong because the covenant of circumcision requires the cutting of flesh, and there must be some blood.  There is no such thing as a bloodless covenant in the Bible.

[23]         The accused asked his family doctor, Dr. Etches, if he would circumcise DJ.  When he declined, the accused told him that he planned to do it himself and asked Dr. Etches if he would assist.  The doctor told him it was not a good idea for him to circumcise his son and that he could not support it.  The accused testified that he did not discuss the method he proposed to use because the circumcision was a covenant − and there was no point in asking a doctor how to do a covenant circumcision. 

[24]         Dr. Etches told the accused he should consult a urologist.  The accused said he attempted to reach a number of urologists and spoke to two by telephone.  Both said they would not circumcise a four-year-old boy.  The accused also discussed the proposed circumcision with Dr. Robbertse, who said he would not do the procedure or assist the accused while he did it.

[25]         In January 2006, the accused took his family to Dr. Andreau, a urologist in Surrey, and asked if he could circumcise DJ.  Gina W. thought the urologist said it would cost $4,000 or $5,000; the accused thought it was between $2,000 and $3,000.  Dr. Andreau told the accused that DJ would have to be put under a general anaesthetic and it would be hard to gauge the correct amount for a boy as small as DJ.  The accused had taken a month to heal from his circumcision but he understood from Dr. Andreau that a young child would heal within a week.

[26]         Gina W. said that, at about this time, the accused hinted that she could ask her lawyers for an advance payment from her settlement to pay for the circumcision.  Her lawyers had settled her personal injury claim for $1.75 million in October 2006 but she did not receive any money until January 2008.  She said that every time the accused talked about circumcising DJ, she would tell him to wait until she had the money to take DJ to the Philippines and have him circumcised by her aunt who was a doctor, or by someone else who was qualified.  She testified that when the accused told her he could not wait because Passover was coming, she did not understand the connection. However, in cross-examination, she conceded that he told her if she didn’t get the settlement money, he would do the circumcision himself because Passover was coming and there was no time.  When she asked him if he was confident he could do it, he replied, “I guess I will have to.”  He also told her that if DJ were not circumcised, he would have to leave home.

[27]         The accused agreed that Gina W. had repeatedly told him that when she got her settlement money, they would go to the Philippines to have it done by a doctor, and that she told him not to do it because they would get into trouble with the social workers.  The accused agreed that if they had the money, he would have followed that course of action.

[28]         The accused said that two weeks before Passover, he made contact with one of the “brethren”, Troy M., and his wife Bethany M. They were dog breeders in the U.S. and Bethany M. apparently had some past experience working with nurses.  The accused and Troy M. had previously communicated in 2006 about the fact that they kept the Sabbath, not on Saturday or Sunday, but according to the new moon, as set out in Genesis.   In March 2007, the accused mentioned circumcision, to which Troy M. responded he had circumcised his 13-year-old son and he had a whole website dedicated to the subject.  Troy M. told him that part way through the circumcision, he could not stop the bleeding so he called his wife who gave him Blood Stop powder to stop the bleeding, seal the wound, and prevent infection.  The accused understood that after a month, the black tarry substance left by the powder dropped off the penis by itself.  Troy M. told him that Blood Stop powder is used by veterinarians to control bleeding in animals. 

[29]         The accused tried to find Blood Stop powder but the closest location at which he could purchase it was in Cloverdale and it cost $30, which he considered too expensive.

[30]         The accused was adamant that it was his responsibility to make sure every male in his house was circumcised.  He had made plans to drive down to the U.S. to spend the Passover week with a friend, Larry, who lived in Washington State.  He thought that by removing himself from the home for the week, he could delay doing DJ’s circumcision until he could find a doctor to do it or at least supervise him.  Larry sent him money for gas, and he drove down on March 31.  They chatted but then disagreed about the accused calculating the Sabbath from the new moon.  Larry decided the accused was following Satan and did not want to share the Passover lamb with him, so the accused left. 

[31]         When the accused was driving through Washington State, he stopped at a feed and tackle shop and was told that Wonder Dust was the equivalent of Blood Stop powder and much cheaper.  He said because he still had some of Larry’s money, he had no excuse: he could afford the Wonder Dust and a blade, and now he had to return home.  The accused understood that Wonder Dust was made to a sufficiently high standard to use on a million dollar racehorse.  The label reads “Wound Powder for horses and show stock.”  It states “Contains activated charcoal – aids in the prevention of proud flesh.”  It contains cautions that it should be kept out of the reach of children and that it is “not for human use. For veterinary use only.”  The container also reads:

General: Wonder Dust is a dressing powder and blood coagulant for use on certain types of wounds, cuts and abrasions.  Specially formulated for use on horses and valuable show stock.  A caustic and drying agent for slow-healing lesions and excessive granulated tissue (proud flesh). Also for use on other livestock as a blood-stop powder after castrating, coking or dehorning. Plus, it contains a deodorant to remove objectionable odors from foul or infected wounds.

[32]         The accused said that he had a high degree of confidence in the Wonder Dust.  He thought that the admonition against human use was simply for the manufacturer’s liability protection and FDA concerns.  He believed that it was used as a folk remedy for hikers and people who were far from a hospital who cut themselves.

[33]         When he returned home on April 1, he decided that if DJ did not want to be circumcised, Gina W. would be responsible; but if DJ agreed, − he was a male and had the right to eat the Passover lamb. He told DJ that if he was circumcised, “he would have extra special protection from God” and could eat the Passover lamb. He said the cutting would be brief and might hurt a bit but not for long. When DJ told him he was ready to be circumcised, the accused felt that he had no more escape routes.  He had spoken to DJ earlier from time to time about circumcision and emphasized that it was a way of unifying the family and being a family in God.  He said he was careful not to make DJ feel that he would be penalized if he was not circumcised.  However, the accused said if DJ was not circumcised, he would have left the household for as long as DJ was not circumcised.  While he did not remember telling DJ that specifically, he did tell DJ that it would make it difficult to stay together as a family.  The accused also told DJ that he would be like his father if he were circumcised, and that he could have all the ice cream he wanted afterwards and pick the movies for a week.

[34]         The accused did more research that night and shopped for the necessary supplies the next day.   At trial, he insisted that he had purchased a brand new white plastic cutting board at London Drugs that day for the purpose of cutting DJ’s foreskin.  At his preliminary inquiry, he stated that he had put a cedar cutting board under DJ’s penis and then stretched out his foreskin and cut it off with a razor.  He described it as a regular cutting board used to cut food on, and that he found it somewhere in the kitchen. He did not recall when it was bought.   At trial, the accused was adamant they had never owned a cedar cutting board and that he had been stressed and confused when he testified earlier.

The circumcision

[35]         The accused had purchased some rocks or flints with sharp jagged edges over the Internet.  He thought that he might use them for circumcising DJ and “other messianic brothers” who wanted to keep the covenant. He considered that using them would be Biblically authentic. He also purchased razor blades that were sharp enough to cut leather, rubber, carpet and the like. He said he decided he would use the flints if he had a vision from God to use them that day, but he had no such vision.

[36]         At trial, the accused said he wished he had known about the use of ice to numb the area, but then mused “how would the Israelites have obtained ice?”

[37]         The accused put the flint stones and the razor type of blade in a pot of boiling water and then gave DJ some honey wine that he had made. He estimated that the wine was between eight and 12 percent alcohol and that he gave DJ about a teacup full − an ounce at a time every 15 minutes or so.  Bethany M. had told him how much wine to give DJ based on his weight.  He then took his daughter with him to Canadian Tire and Home Depot so that he could look at hardware and relax.  He was tense and stressed about performing the circumcision.  He left DJ with Gina W. and assumed they were napping.  When he got home, he found the water in the pot had boiled away.  The blade was on top of the rocks and he thought it was still very sharp. He added more water and boiled the pot again.  He believed he had washed the blade first because there was likely oil or grease on the blades in the package.  He washed the cutting board with soap and then poured boiling water over it.

[38]         The accused laid DJ on clean garbage bags on the kitchen floor and put a clean towel or diaper under him. He said he ensured DJ would not move around by talking to him like an adult, explaining what he thought would happen, and then giving him a choice.  He said he told DJ it would hurt and described each step, “so that he felt in control and in possession of his faculties”.  He showed DJ the blade and where the cut on his foreskin would be, and told DJ it was important that he not move.  He said that DJ told him in clear terms that he was ready to go ahead.

[39]         The accused planned to pull the foreskin beyond the penis and cut a small amount at the end in such a way that the penis would be protected.  He was adamant at trial that there is a significant difference between a medical circumcision and a Biblical covenant circumcision.  He said that the cutting of DJ’s foreskin might have taken as much as five seconds but probably took no more than two seconds.  The accused made two slices – forward one way and back the other. When he pulled the foreskin taut, he sliced forward on the foreskin but the cut did not go all the way through the foreskin, so he pulled it back in the same groove to complete the cut.  He agreed he had used a sawing motion, although the blade did not have a serrated edge.  When he made the first cut, DJ made a small jerk and the accused’s hand jerked a little.  As he said he still held the foreskin, I conclude it was the hand holding the knife that slipped.  He told DJ to be still again and made the second cut.  The cut started to bleed after a second or two.  The accused used paper towels to soak up the little bit of blood and then applied the Wonder Dust.  He said you could see the tip of DJ’s penis so he was not worried about DJ’s ability to urinate.   After he applied the Wonder Dust and tissue to the penis, DJ bled for another five or 10 minutes, and the bleeding continued to decrease.

[40]          He testified that DJ said “ouch” because it hurt him, that he cried a little for less than two minutes following the procedure, and then he fell asleep.  While DJ was still on the floor, the accused gave him some ice cream, said he was keeping his promise, and told DJ he could pick all the movies for the week.  DJ then fell asleep again. 

[41]         The accused did the circumcision at about 5:30 p.m. and checked DJ periodically. He was satisfied that DJ was sleeping soundly and his penis was not bleeding.  He moved DJ to the couch either before he left the home with MW to go to the Assembly of the Eternal at 7:00 p.m., or when he returned at 10:00 p.m.

Post circumcision

[42]         Although Gina W. was asleep in the bedroom when the accused circumcised DJ that day, she said she was not surprised as he had been hinting that he would do so.  Since late 2006, he had been asking her when she would get her settlement money from the accident to pay for the circumcision.  However, she did not think he was serious about doing it himself and, at the preliminary inquiry, she had said it came as a surprise because the circumcision was not planned. She said she woke up to DJ crying during the circumcision but then went back to sleep because she was exhausted.  Because she knew the children were with their father, she was not concerned.

[43]         When Gina W. got up, she found DJ asleep on garbage bags on the kitchen floor with sheets both under and over him.  The accused insisted that they were plastic sheets, and not garbage bags, although he conceded that they came from a box and some people would use them as garbage bags. 

[44]         Gina W. was left to supervise DJ when the accused went out that night.  She testified that she was unable to inspect DJ’s penis because she cannot face the sight of blood − it makes her weaken and want to pass out.  The accused felt that she would be able to see any blood through the coverings over DJ’s penis and she would contact him if there was a problem.  The accused said that when he came home, DJ was asleep and his penis was not bleeding.

[45]         Gina W. recalled sleeping on a loveseat beside DJ that night, but the accused said she slept in the family bed with him and MW and that they left DJ on the sofa.

[46]         In the night, DJ called for his mother.  She awoke and had the accused take him to the bathroom.  She agreed that DJ was upset, uncomfortable, and crying when he woke up.  The accused said the cut had opened up and there was blood on the paper towels that covered DJ’s penis.  The accused said he could see a hole in a vein.  He told DJ, who was crying, to stay still and he pinched the vein for two minutes to reroute the blood.  He then dried the area with a towel and applied more Wonder Dust.  He did not think there was more than a tablespoon of blood.  He said that DJ cried for between five and 10 minutes until the bleeding stopped.  

[47]         The next day, Tuesday, DJ stayed on the sofa sleeping and resting.  The accused carried DJ to the washroom when he needed to go to the toilet and checked his penis periodically to make sure there was no bleeding or sign of infection.  On Wednesday, the accused and MW went to Abbotsford for a Passover celebration and stayed the night there after they had killed the lamb, eaten it, burnt the remains and the adults drank wine.  He believed that he should leave DJ at home as there was a minimal risk that the cut might reopen if he were moved.  He had read an article describing how an infant had bled to death after his circumcision cut opened two days after the operation.  He believed that he was mitigating that risk.

[48]           Gina W. said that the accused checked DJ’s penis from time to time when he was at home and that she took DJ’s temperature.  She said that DJ did not complain about pain and ate some food. Gina W. recalled DJ getting up from the sofa on Wednesday and she felt he was recovering as expected.  She said she would have taken DJ to the doctor or to hospital if there was a problem and she phoned her mother in the Philippines several times to discuss his recovery.  Gina W. described DJ on Thursday as cheerful and active.  However, the accused said that DJ walked to the washroom very slowly and carefully with his legs apart to keep his penis away from his legs. 

[49]         On Friday, April 6, the children went next door to play. The accused said DJ was playing, but still moving slowly and cautiously.  Richard Edwards, a social worker with the Ministry, received information that day that the accused had circumcised his son.  Mr. Edwards and his supervisor decided that the report raised child protection concerns.  He attended the accused’s home that day with two police officers to keep the peace.  Mr. Edwards spoke with the accused and his wife and observed DJ playing with other children next door.  He wanted to speak to DJ but when the accused brought his son home, Mr. Edwards observed that DJ was tearful and upset and decided to talk to the parents instead. 

[50]         The accused told Mr. Edwards that he had circumcised his son for religious reasons, that the religion was Hebrew, and that it was custom.  He said he used a sanitary and clean instrument and that a friend had been present.  He said that he had learned to do it from a few people at his church.  He said he used “home brew” and the circumcision took place in the kitchen. 

[51]         The female police officer asked Mr. Edwards: “do we have a yes?”, and he answered in the affirmative.  She then arrested the accused for aggravated assault and read him his Charter rights.  Later, one of the officers said they had decided not to arrest him then because he had no malicious intent.  Mr. Edwards told Gina W. and the accused that they wanted to take DJ to the Children’s Hospital to be seen by a doctor to confirm that he was all right.  The accused said he thought that it would benefit everyone to confirm that DJ had been properly circumcised.  He expected DJ to be brought home that afternoon. Mr. Edwards left the accused with MW in the home.  That afternoon, the accused wanted to go to a meeting downtown, so he left MW with the tenant in the basement.

[52]         Mr. Edwards described the home as disorganized and cluttered with dishes, papers, and clothes, etc., but he did not consider it hazardous to the health of a child to live there.  The condition of the house did not cause any concerns that would lead to the removal of a child.  In cross-examination, he agreed that he would not have removed DJ if the circumcision had been performed by a rabbi or a doctor.  He also agreed that DJ was not visibly uncomfortable. 

[53]         Gina W. said that when they got to the hospital, the nurses, doctors and hospital social workers were shocked when they saw DJ’s penis.  Gina W. felt that they looked at her as if she was a criminal.  She said DJ screamed when the nurses treated him.  At the preliminary inquiry, she said that he was crying after the circumcision the same as when he was given an injection at the hospital.  Gina W. was unable to tell them what the black ash-like substance on his penis was.  She reached the accused by telephone and he told her it was Wonder Dust.  The social worker who replaced Mr. Edwards told her that the Ministry was removing the children.  Gina W. said that she stayed with DJ at the hospital on Friday and Saturday night.

[54]         At the Children’s Hospital, DJ was first examined by Dr. Colbourne, a paediatric emergency physician.  She observed a coating or shell of hardened ash, like a beehive, on his penis.  She tried to soak it off in a sitz bath without success, and asked the urology team to examine him.  She found no redness or inflammation in the area that would indicate infection.

[55]         In Dr. Colbourne’s expert opinion, circumcision should be done with the proper sterile instrument by someone with the proper training.  The biggest risk is uncontrolled bleeding, so suture material should be at hand.  Sedation and/or analgesia should be given with resuscitative equipment available.  Alcohol is not a suitable analgesic or sedative.  It is not appropriate to give alcohol to children because it is impossible to measure the effects and there are possible negative outcomes.

[56]         In cross-examination, Dr. Colbourne said that she had observed a Bris or religious circumcision, when she was in training but it was performed in the nursery in a sterile environment.  She was aware of the Jewish tradition in which people who are not doctors perform circumcisions of male babies in the home.  She agreed there was no medical testing of such people but understood they had been through a training program.  She agreed that circumcision is generally a minor surgical procedure in infants but that it would have been extremely dangerous to circumcise a baby such as DJ who weighed 2.5 pounds when he was born.  She did not observe any infection, bleeding, or adverse affects from the alcohol DJ had been given.

[57]         Dr. Afshar is a paediatric urologist who practices at Children’s Hospital and performs circumcisions.  He was qualified to give an expert opinion in the area of paediatric urology.  He said training in circumcision was part of his urology residency.  At first he just watched the procedure, then he became more involved until he could perform a circumcision without supervision by the end of his five-year residency. 

[58]         He described circumcision as a painful procedure. Although newborns are just given local anaesthetic to numb or freeze the penis, a general anaesthetic is appropriate for a child.  Dr. Afshar described the procedure: the foreskin is cut to remove some of the cylindrical skin structure, but enough is left to permit the two edges to be joined together for cosmetic reasons.  There can be a single cut, where the foreskin is pulled over the penis, is cut, and then retracts.  Or, the foreskin can be pulled back, two parallel incisions are made circumferentially around the band, and then the sleeve of skin is removed.  The two free edges are clamped or sutured together. 

[59]         Dr. Afshar said there the surgeon will always be concerned about cutting too deeply and about the location of the cut.  It is important to cut only the foreskin and not the shaft, the glans, nerves or the urethra.  The penis shaft is very vascular and may bleed a lot if cut.

[60]         Dr. Afshar examined DJ on April 6 after he had been told that his father had attempted a home circumcision on him.  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.  He observed that there was no active bleeding or sign of infection in DJ’s legs or scrotum. He could not see if any of the foreskin had been removed or what shape the penis was in because the black ash covered most of the shaft or body of the penis towards the tip. 

[61]         He took DJ to the operating room on an urgent basis.  DJ was given a general anaesthetic and Dr. Afshar removed the very adherent ash-like material with scissors.  He talked to Gina W. beforehand and explained that he had to remove the ash-like material in order to examine the penis completely, and to make sure there was no deeper damage or ongoing infection below it.  He said he needed to explore and debride the wound.  

[62]         Dr. Afshar testified that the purpose of a general anaesthetic is to put the patient to sleep, give pain relief, and erase the memory of the operation.  It is important that the patient not be moving so that the surgeon can be accurate.  When children are afraid, they may become agitated and combative – they may kick and scream.  He said that without an anaesthetic, the operation would have been painful for DJ and there would have been a danger of damaging DJ’s penis because they operation could not be performed on a moving target.  

[63]         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.   He said you cannot leave necrotic material in the surgical field because of the danger of infection.  The result of necrotic fascia will be a scar that is thicker than a surgical scar. The scar may also heal poorly and present cosmetic problems. 

[64]         Dr. Afshar observed no damage to the urethra.  He observed an incomplete semi-circumferential incision on the proximal part of the foreskin.  The cut was through the foreskin into the superficial fascia of the penis on the top half of the penis, but not all the way around the cylindrical part to the bottom part of the penis. Had the cut gone deeper than the fascia, it could have damaged the nerves and the blood supply.  At the time, he thought that the circumcision had been started but stopped half way through. He did not think that any of the foreskin had actually been removed, but admitted that it was possible.

[65]         Dr. Afshar removed the black ash and the dead necrotic tissue and completed the circumcision by removing the extra skin.  He completed the incision all around the circumference and then made a second parallel incision leaving a cuff of five or six millimetres between the cuts. He then removed the cuff and sutured the two edges of the foreskin together.

[66]         Dr. Afshar said that if he had not completed the circumcision, DJ’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.  DJ would have had a scar which might have been irregular and unsightly.  Tissue is elastic but scar tissue is hard and inflexible and DJ 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.

[67]          Dr. Afshar applied a dressing and admitted DJ to the Hospital for observation.  He later observed DJ’s penis in the clinic, noting that it had healed nicely and looked like a normal circumcised penis. 

[68]         Dr. Afshar said that one should never give alcohol to a child as an anaesthetic, not even an ounce.  Alcohol is a depressant and can lead to respiratory arrest, over-sedation, aspiration, and other serious results in a child.  It would be hard to judge the amount of alcohol that would be safe. 

[69]         In Dr. Afshar’s opinion, the home is not an appropriate place to perform a circumcision.  The ideal forum is an operating room − a sterile environment with access to an anaesthetic to minimize pain, and anxiety, and prevent moving.  The area would be cleaned with antiseptic to prevent infection.  The doctor covers the surgical area and the penis with surgical drapes made of a sterile fabric.  If necessary, stainless steel trays are used under the organs because they are easy to sterilize, not toxic to the body, and do not break.  For the circumcision itself, a cutting implement designed for the purpose is used: a stainless steel surgical blade that is much sharper than a knife, is sterilized, and used only once.

[70]         In Dr. Afshar’s opinion, the Wonder Dust was a totally inappropriate substance to apply as a wound healer for a human being.  The label says it is for veterinary use only and it is a product for use on animals; it is not for human use and should be kept out of the reach of children.  The Wonder Dust, which covered a two to five millimetre gap between the two edges of the cut, appeared to be unsterile material on an open wound, which raised concerns about bleeding, infection and necrosis.  The ash could not, as Mr. Christie suggested, act as a suture between the two edges of the cut foreskin.  He said that one edge of the cut skin cannot meet the other edge if there is foreign material between the edges.  Thus, there would be a larger scar.

[71]         Dr. Afshar also examined the blades that the accused used and said they were not appropriate to use to perform a circumcision.  They were not sterile.  They were thicker than surgical blades and not as sharp.  A thicker blade requires more force to cut the skin and may cause bleeding.  A wooden board under the penis would not be appropriate. If the board had been used in the kitchen, it would be covered with bacteria from foods – it would be an invitation to infection.

[72]         In cross-examination, Dr. Afshar agreed that in Ontario, male circumcisions are exempted from the Regulated Health Professions Act if they are done as part of a religious tradition or ceremony. He also agreed there is no prohibition in B.C. against circumcisions done by people who are not medically trained.  However, he does not agree with the practice of non-medical circumcision because he has seen complications of home circumcisions when people are brought to the hospital.  He agreed that the major problem is infection and that in this case, there was no infection.

[73]         Dr. Afshar agreed that he had observed no active bleeding or open vessels. There was no damage to the glans, the nerves, or the core tissue of the penis.  There was no functional damage to the penis or to the urethra.  Had there been such problems, they would have been evident by the time he observed DJ.  However, he believed that it may have taken a couple of weeks for long term complications, to become evident.  It was his professional opinion that surgery was necessary to prevent any complications and to ensure there was no infection, disfigurement or other functional problem such as a trapped penis.  He did not agree that the absence of any infection, bleeding, or other problem meant that, in retrospect, the circumcision had been done reasonably.

[74]         When DJ was discharged from the hospital, he was taken to a foster home. He and MW were in the care of the accused’s parents for the next two and a half years.  The grandparents apparently disapprove of the religious views of both Gina W. and the accused.

[75]         When the accused took the bus home at about eight o’clock that night, he saw a police car in front of his house.  He thought something must have gone wrong and that he would probably need legal counsel, whom he thought would be difficult to find from jail on a weekend.  He phoned Gina W. and learned there was a warrant for his arrest and that the doctors were panicking because they had no idea what the black tarry substance was.  He told her to tell them it was Wonder Dust.  He then went to a friend’s home and located a lawyer.  He has not been allowed to speak to DJ since then. 

[76]         DJ, who is now six, and his sister MW, who is now eight, were called as witnesses for the Crown.  Both children presently reside with their mother.  It is a condition of the accused’s bail that he not have any contact with DJ.  DJ recalled that his dad had circumcised him in the kitchen of their home while he was lying on a garbage bag on the ground.  He said his father “used a rock that he opened” and “it had a cover”.  He did not recall eating or drinking anything first.  He was asked how it felt and said “not really bad”.  He was asked if he wanted his dad to do it and answered “I was saying yes.  I said yes.”  He said he was sort of bleeding.  He said he did not really cry very much.  His dad told him that he had done it to himself but DJ could not remember why he was going to circumcise DJ.   His dad had said before the circumcision that, afterwards, they could eat ice cream and watch movies at night.

[77]         In cross-examination, DJ said he did not really have many discussions with his dad about circumcision.  When  Mr. Christie asked him if his dad had said he could not share in the Pascal lamb, he first replied “What is that?” but then he agreed that his dad had talked about lamb and said he could watch movies, and eat both ice cream and the Pascal lamb.  DJ agreed that his dad had told him he had circumcised himself and that is what God had wanted.  His dad asked him if he wanted to be circumcised and he told his father that he did.  He agreed that it was so he could have Pascal lamb as well.

[78]         He remembered that after the circumcision, he lay on the couch for a while, ate ice cream, and watched movies. He thought that the next day he went to see the cows in Birch Bay.  He said he felt better for some time before the social worker and police officers came, and that he had been playing outside with his sister. 

[79]         He was sure that there was no towel or cloth when he was lying on the garbage bag during the circumcision. He did not recall any board.   He said his dad used a rock that was shaped like a knife and boiled it first.  When he was asked if his father was kind to him, he replied, “sort of”.  He agreed he wanted to be circumcised to be like his dad. 

[80]         MW recalled that her dad had done something to her brother’s penis in the kitchen.  She saw him lying down on the garbage bag on the floor. She thought there was something else under DJ but could not remember what it was.  She saw DJ drink something from a glass.  Their dad gave it to him and said it would not hurt so much after if he drank it.  She thought she had known in the days beforehand that her dad would do the circumcision.  She did not see the actual circumcision but went to the bedroom where her mother was.  She saw some sharp stones that her dad had boiled before. 

[81]         MW said DJ cried a lot after it happened.  She recalled that DJ could not play and had to go to the hospital.  She saw his penis and the blood and could not remember if their dad had put anything on it.

[82]         In cross-examination, MW did not recall her dad saying that DJ would have ice cream and movies afterwards although he had talked about it before.  She did not recall any talk about Pascal lamb or eating lamb in the Fraser Valley.  She recalled going to Birch Bay with the family.

[83]         MW did not recall how long DJ had cried.  She remembered that he could not stand up but did not remember playing outside with DJ when the police arrived.

The Credibility of the Accused

[84]         When he was affirmed, the accused swore to tell the truth “to the best of my ability”.  He said that he had taken a course and learned that the average person lies 40 percent of the time even when trying to tell the truth.  Generally, however, I found the accused a truthful witness.  I did not accept his evidence that he had bought a plastic cutting board which he used instead of the cedar board he had described a number of  times at the preliminary inquiry. 

[85]         The accused’s evidence was inconsistent on the issue of whether he would have had a doctor circumcise DJ if he had enough money.  At times, he took that position.  However, on other occasions, he was adamant that DJ had to have a religious circumcision rather than a medical one.  He had strong views about the amount of foreskin that should be removed – less than in a medical circumcision.  In any event, the doctors he consulted said that they would not circumcise a small boy such as DJ because of the dangers of administering a general anaesthetic – which was absolutely necessary.  The accused cannot successfully plead poverty as a defence or an excuse.

[86]         The accused’s evidence was also inconsistent with respect to the use of a mohel.  On the one hand, he said that he was repulsed by the unhygienic practices he understood that they employed.  On the other hand, he said that he had consulted two rabbis to see if a mohel would circumcise DJ.  

[87]         I also find that the accused minimized the physical and emotional impact that the circumcision had on DJ and maximized DJ’s maturity and comprehension of the procedure. 

The Accused’s Religion and the Practice of Home Circumcision

[88]         The accused described his religion as “of the Abrahamic faith”.  In 2005, he began to attend a study group known as the A.E. (“Study Group”) on Saturdays.

[89]         Mark R. has known the accused since 2005 when the latter joined the Study Group.  The group of 15 to 20 observers, which split up in the summer of 2009, observed the first five books of the Old Testament.  Mark R. was the main preacher at their Saturday meetings, although his brother and the accused occasionally preached.  The group believed that a man cannot participate in Passover without being circumcised.  Mark R. stopped preaching there about two years ago because his spiritual beliefs – questioning the New Testament and the role of Messiah – were not compatible with those of the Study Group.  He described the Study Group as like the Jewish faith in some ways but not others.

[90]         Mark R. approves of the fact that the accused has a Mezuzah with the Ten Commandments posted beside his front door.  The accused also wears tzitzis – small blue tassels on the bottom of his suit jackets. Historically, tzitzis are "fringes" or "tassels" worn by observant Jews on the corners of four-cornered garments.  Mark R. said most Jews would wear them on their undergarments and he admired the accused for wearing them visibly.

[91]         Mr. Christie called Fred W., an elderly gentleman who is a member of the Association, to speak to his knowledge of the accused’s character in the community.  Fred W. met the accused at an Association meeting about five years ago. The accused irregularly attended those meetings of mostly elderly folk who subscribe to the theory of British Israel and the ten lost tribes. The accused described their main belief that white Anglo Saxons are one of those ten lost tribes of Israel. 

[92]         When asked about the accused’s general reputation for sincerity and honesty, Fred W. replied that was never questioned.  The accused said what was on his mind, was exceptionally well read in the Scriptures, and was exact to the extreme. He did not recall the accused ever being caught in a lie or exaggerating something. He got along with most of the members but some people shied away from him.  Fred W. described some bad feelings between the accused and another member, and said the accused rarely attends meetings now.

[93]         Fred W. also belonged to the Study Group for about four or five months but he adamantly rejects the concept of a Saturday Sabbath.  He described the dispute over the Sabbath as one of the biggest arguments in all religion. 

[94]         Mr. Christie called Linda S. as a witness for the defence.  She testified that she had circumcised her husband and her three adult sons – she did a clipping at the edge of the foreskin, rather than the removal of the entire foreskin. She said that there were only a few drops of blood after she did her clippings.  On the advice of her family doctor, she used a bag of ice on the head of the penis to numb the area and limit bleeding before she cut the foreskin in one cut.  She has done as many as 10 circumcisions without any difficulties during or after the procedure.  She used an x-acto knife or a knife with a long blade sterilized in hot water, gauze, and polysporin to prevent infection and stop the bleeding.  She said the knife should be as sharp as possible to get a clean slice without multiple attempts.  She did not place the foreskin on anything before cutting it.  She is aware of other families who have done home circumcisions, including one on a five-year-old boy, and did not know of any problems or complications.  She described the procedure as “a no-brainer” that was virtually painless and said the men and boys suffered no ill effect at all afterwards.

[95]         Linda S. said she and her family and some friends were previously Christian but broke away from the traditional Christianity which they believe has disregarded the Old Testament.  They believe that a dozen years after the crucifixion, Paul wrote letters suggesting that it was not necessary to obey the Biblical food laws or foreskin circumcision.  She said that Christians have replaced circumcision with baptism.  She came to the belief in about 1994 that circumcision of the men in a household was necessary to enter into the covenant with God.  She testified that she and her husband had many disagreements about circumcision: she was in favour of it and he was not.  One night in 1994, after fasting and praying for a week in Mexico, her husband had heard the voice of God asking: “What about my Sabbath?”, and the family had changed their day of worship from Sunday to Saturday.  Later, in 1998, she was driving home at night from an auto auction and heard the voice of God asking: “What about my circumcision?”  She was able to convince her husband to study the issue further and he concluded that men still had to be circumcised.  After Linda S. heard the voice of God, she had a number of dreams which she interpreted as symbolic of circumcision.  They led her to the conclusion that the circumcision only needed to be a clipping.  They believed that a medical circumcision would cost between $4,000 and $6,000.

[96]         After Linda S.’s family and two other families decided to circumcise the men in their households’ families, they read about the subject on the Internet.  They decided to perform the circumcisions a couple of weeks before Passover in the spring of 1999.  Earlier on the day of the procedures, Linda S.’s husband phoned to tell her that he had attempted to circumcise himself and had cut himself in a number of places.  She decided to take charge.  She went to her doctor to discuss her planned method, and then to the pharmacy to get supplies.

[97]         Linda S. and her family now celebrate the Jewish holidays.  She believes that a man must be circumcised in order to observe Passover.  An uncircumcised male would not be welcome in her family’s home during Passover. 

[98]          Linda S. did not meet the accused before he circumcised DJ.

[99]         Chad J. testified that he had performed a circumcision on himself in March 2005 in order to keep the Passover feast and be obedient to the Bible’s instructions. He used a utility blade and wooden board, and took off about a quarter of an inch of his foreskin.  He had prepared a bandage in advance with polysporin on it.  He used ice to numb his penis.  He estimated that he had bled about five to 10 millilitres of blood into the bandage and that his penis took about three to four weeks to heal.  He said the pain of the actual circumcision was about eight on a 10 point pain scale.  His father-in- law at the time was Brian M. who had been circumcised by Linda S. and who had told Chad J. of the procedure.

[100]     Chad J. met the accused at the Passover feast in his home in April 2007 after DJ’s circumcision.  Chad J. described the killing of the lamb at Passover as a significant Biblical practice.

The Law

Count 1 – Criminal Negligence Causing Bodily Harm

[101]      Section 219(1) of the Code defines criminal negligence:

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.

[102]     Criminal negligence was succinctly reviewed by Hill J. in R. v. Menezes, (2002), 50 C.R. (5th) 343 (Sup. Ct. Justice), at para. 72:

Criminal negligence amounts to a wanton and reckless disregard for the lives and safety of others: Criminal Code, s. 219(1). ...  This is a marked and substantial departure in all of the circumstances from the standard of care of a reasonable person: R. v. Waite (1989), 48 C.C.C. (3d) 1 (S.C.C.), at 5 per McIntyre J.; R. v. Barron, (1985), 48 C.R. (3d) 334 (Ont. C.A.) at 340 per Goodman J.A.  The term wanton means “heedlessly” (R. v. Waite (1986), 28 C.C.C. (3d) 326 (Ont. C.A.) at 341 per Cory J.A. (as he then was)) or “ungoverned” and “undisciplined” (as approved in R. v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. C.A.) at 430 per Morden J.A.)) or an “unrestrained disregard for consequences” (R. v. Pinske (1988), 6 M.V.R. (2d) 19 (B.C. C.A.) at 33 per Craig J.A. (affirmed on a different basis, [1989] 2 S.C.R. 979 per Lamer J. (as he then was)). The word “reckless” means “heedless of consequences, headlong, irresponsible”: R. v. Sharp, supra at 30.

[103]     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.

[104]     The accused says he took all the necessary precautions against excessive bleeding or infection and did a straight cut that was aesthetically pleasing.  Although he knew that doctors would have used a general anaesthetic, he said they would have snipped away for about 30 seconds and he would only take one or two seconds. 

[105]     The accused was adamant that DJ wanted the circumcision and understood that he would have to be still while his father cut his penis with the knife.  He testified that DJ had a calm, even temperament and was not fidgety or squirmy.  However, on the morning of the circumcision, social workers had arrived regarding an incident that had occurred a few days earlier.  Gina W. had left the home to go to London Drugs in order to spend some time by herself and instructed the children to stay with their father in the home.  When she was a short distance from the house, DJ came running after her crying.  A passerby called 911 and told her that “in Canada you do not leave your children”. 

[106]     DJ testified at the trial and sat through some of his mother’s testimony until I requested that both children be removed from the courtroom despite Gina W.’s belief that they should remain to “hear the truth”.  In my opinion, DJ was a typical six-year- old boy – delightful, shy and polite, but energetic and frequently squirmy and restless.  It was unreasonable for the accused to believe that DJ could remain still for the circumcision.

[107]     There was evidence that when Detective Wu attended the family home on April 6 to search it, the house and kitchen were in an unclean condition.  Another officer took photographs of the home that day.  Detective Wu noted clutter everywhere with no room to walk about.  She did not think the house was clean and she observed a large brownish stain on the carpet in front of the sofa in the living room.  It looked like blood but she did not know the results of testing.  There were dirty dishes in the kitchen and apparently no place to cook.  She thought the floor looked dirty and seemed grimy when she walked on it, although there was no dirt visible in the photos.  Gina W. thought the kitchen floor had been mopped that morning by one of her rehabilitation helpers.  There is no evidence as to the state of the kitchen on April 2 when the circumcision was done.

[108]     Detective Wu said she observed a cockroach trap in one of the kitchen cupboards.  Gina W. said that she did not know whether it was a bug trap of some sort.  She said it was there when they moved into the home in 2000 and she never looked at it carefully. 

[109]     The accused was asked if one of the photographs depicted mice droppings. He agreed that it probably did.  He said that the tenant downstairs had mice and sometimes the mice would come upstairs but he would get rid of the droppings when he saw them.  At some point, he had got Gina W. a cat to take care of the mice. 

[110]     I am satisfied that a reasonable person in the accused’s circumstances would have appreciated that it was dangerous to attempt a home circumcision on his four-year-old son.  His conduct was a marked and substantial departure in all of the circumstances from the standard of care of a reasonable person.  I am also satisfied that the accused showed both wanton and reckless disregard for DJ’s safety. 

[111]     Mr. Christie submits that circumcision is a reasonable religious practice and that the removal of extraneous skin is not a dangerous or life threatening action. He suggests that the accused’s actions were designed to perform a religious ritual or covenant rather than a medical procedure, and that the actual circumcision was no more “a surgical operation” than lancing a boil.  Alternatively, it is akin to body piercing or tattooing.  While piercing children’s ears may be an acceptable practice, it is likely that a parent could not legally tattoo or invasively body pierce a four-year-old child.  Mr. Christie also describes the foreskin as extraneous tissue and that cutting it off is akin to cutting off a hangnail.  Such an analogy is inapt.  The risks of a carelessly performed circumcision – blood loss, infection, and penile disfigurement − are not comparable to any risk from the careless removal of a hangnail.

[112]     Mr. Christie also submits that circumcision is not “a harm or an injury” because if it were, doctors could not perform such an operation.  Because DJ’s circumcision did not result in an infection or dangerous blood loss, the circumcision cannot amount to “bodily harm”.  In Mr. Christie’s opinion, the best test of negligence is found in the result.  With respect, that reasoning is fallacious.  A patient may develop an infection after an operation conducted by a skilled and careful surgeon in sterile surroundings.  That unfortunate result does not invite the necessary conclusion that the surgeon was negligent.

[113]     Mr. Christie seeks to draw an analogy between mental retardation and the accused’s sincere religious beliefs, which affected his judgment and limited his options.  I consider that analogy to be without merit.

[114]     In R. v. Ubhi (1994), 27 C.R. (4th) 332 (B.C.C.A.), the Court granted an application to adduce fresh evidence that suggested the accused was a 25-year-old man whose mental functioning was that of a six or seven-year-old.  The accused had been convicted of criminal negligence causing death and criminal negligence causing bodily harm when the brakes on his dump truck had failed and the truck struck a number of people.  The brakes on the truck had not been adjusted for a considerable time before the accident.  The court noted, at p. 334, that R. v. Creighton, [1993] 3 S.C.R. 3, established that the fault standard for criminal negligence was objective mens rea was and that “individual characteristics of an accused, short of incapacity to perceive or assess the risk of danger to the lives or safety of others, are irrelevant to the determination.”  However, the court concluded that evidence of the accused’s mental retardation was directly relevant to the question of capacity to understand or appreciate the risk in not performing brake inspections and adjustments.  

[115]     In Creighton, Justice McLachlin stated, at p. 58:

Objective mens rea, on the other hand, is not concerned with what the accused intended or knew.   Rather, the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated.  Objective mens rea is not concerned with what was actually in the accused's mind, but with what should have been there, had the accused proceeded reasonably. 

[116]     Further, at p. 67, McLachlin.J. underscored the merits of a uniform standard of conduct for everyone:

These considerations suggest that the practical as well as the theoretical concerns of the criminal law in the field of penal negligence are best served by insisting on a uniform standard of conduct for everyone, subject to cases where the accused was not capable of recognizing and avoiding the risk attendant on the activity in question.  Beyond this, the standard should not be individualized by reason of the peculiar personal characteristics of the accused.  The purpose of Parliament in creating an offence of objective foresight, as in manslaughter, is to stipulate a minimum standard which people engaged in the activity in question are expected to meet.  If the standard is lowered by reason of the lack of experience, education, or the presence of some other "personal characteristic" of the accused, the minimum standard which the law imposes on those engaging in the activity in question will be eroded.  The objective test inevitably is transformed into a subjective test, violating the wise admonition in R. v. Hundal, supra, that there should be a clear distinction in the law between subjective and objective standards, and negating the legislative goal of a minimum standard of care for all those who choose to engage in criminally dangerous conduct (per Cory J. at p. 883; per McLachlin J. at p. 873).

[117]     The Crown relies on s. 216 of the Code which is designed to protect doctors and others who perform a surgical or medical treatment:

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.

[118]     The applicable standard of care in s. 216 is that of a competent person possessing reasonable knowledge and skill and exercising reasonable care in performing a circumcision.  That standard applies to a general practitioner, a urologist, a mohel, or anyone else who undertakes a circumcision.

[119]     In R. v. Rogers, [1968] 4 C.C.C. 278 (B.C.C.A.), the Court considered the standard of “reasonable knowledge, skill and care” imposed by the precursor section to s. 216 of the Code.  There the accused, a doctor who practiced as a naturopath after he had been struck from the rolls of the College of Physicians and Surgeons,  was convicted of criminal negligence causing death when he improperly prescribed a low protein diet for a one-year-old child.  The accused argued, on appeal, that a subjective test ought to have been applied and that the jury should have been told that if the accused held an honest belief that his treatment was beneficial to the child, he must be acquitted.  The Court disagreed.  At p. 285, Tysoe J.A .stated:

In my opinion the standard of “reasonable knowledge, skill and care” which a person who undertakes to administer medical treatment to another must have and use, within the meaning of Code s. 187, is not that of the person himself, but of those who possess reasonable knowledge and skill and are qualified by proper training to administer such treatment – in this case members of the medical profession generally.  It if were otherwise, the requirement that the person “have … reasonable knowledge, skill” would seem to be meaningless. It follows that the test is not a subjective one but an objective one.

[120]     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.

[121]     Mr. Christie submits that the accused took the following steps which show that he took reasonable care in circumcising DJ: He sterilized the knife and the cutting board.  He placed clean, unused plastic garbage bags under DJ.  He did a lot of research on circumcision, including the negative aspects of it and did not ignore the dangers.  He communicated with others who had done home circumcisions, including Troy M.  He circumcised himself.  He was alive to the risk of bleeding and obtained the Wonder Dust as a precaution against blood loss.  He placed paper towels around the circumcision so that he could observe any blood loss.  He intended the wine to have an anaesthetic effect on DJ – and if his intended effect is reasonable, then the intent cannot be unreasonable.  He consulted rabbis and doctors and asked them to perform the circumcision or stand by while he did it. He obtained DJ’s consent and co-operation.  After the circumcision, he gave DJ ice cream and ensured he was warm and comfortable.  He left DJ that evening and the next day in Gina W.’s charge with appropriate instructions.  In the night, when DJ’s penis began bleeding, he washed the area, pinched the vein, and applied more Wonder Dust. 

[122]     In my opinion, the fact that the accused had previously ineptly circumcised himself exacerbates, rather than minimizes, his awareness of the risks of home circumcision and his negligence. 

The Defences of Necessity and Consent

[123]     Mr. Christie also submits that the accused was driven to circumcise his son by necessity: he was too poor to afford a doctor or even the Blood Stop powder recommended by Troy M., and DJ had to be circumcised before Passover.  After the motor vehicle accident, the accused had lost his job as a relatively high paid computer programmer and the family income consisted of their disability allowances and small programming contracts the accused procured from time to time.  In April 2007, the family’s monthly income was about $2,000.

[124]     Mr. Christie concedes that the accused may have been religiously obsessed and acted foolishly.  However, he felt it necessary to get DJ circumcised because he was feeling persecuted by the social workers and he had to make things right with God.  Hence, the circumcision was necessary for the maintenance of his family and his covenant with God. 

[125]     On some occasions the accused testified that, if he had the money, he would have had a doctor perform the circumcision.  However, at other times he said that he did not want a medical circumcision performed.  It was important that DJ have a religious circumcision because circumcision was a covenant with God and he did not wish more than a small portion of DJ’s foreskin to be removed.  His evidence as to whether he wanted a rabbi or a mohel to circumcise DJ was also inconsistent.

[126]     Mr. Christie further submits that DJ consented to his father circumcising him and understood the procedure and its consequences.  In the alternative, the accused consented to the procedure on his son’s behalf.

[127]     I have no hesitation in rejecting those submissions.  I accept the evidence of Drs. Colbourne and Afshar that circumcision is a serious medical procedure that must be carried out by a person with the necessary knowledge and skill, and that the potential consequences of the accused’s actions included uncontrolled bleeding, infection and disfigurement.  While the accused may have honestly believed that it was necessary to circumcise DJ when he did, he cannot avail himself of the legal defence of necessity.  Indeed, his motivations could be characterized as selfish or even deluded insofar as he believed that he was unable to live in his home at Passover with any uncircumcised male, including his four-year-old son.

[128]     Finally, a four-year-old child cannot, at law, consent to a procedure such as the negligently performed circumcision in question.  In any event, on the accused’s own evidence, any “consent” by DJ was obtained after the accused told him that God would give him special protection, he would be like his father, and he would have unlimited ice cream and movies.  There is no suggestion that the accused told DJ of the risks of the procedure, other than to say it would hurt for a short while.  DJ was far too young to understand and appreciate the possible consequences of the circumcision.  It is obvious that DJ agreed because he wished to please his father. Moreover, the accused could not validly give parental consent to himself − a person without the necessary skill and knowledge – to conduct a circumcision on his four-year-old son.

[129]     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;

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

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

·                 The accused could not legally consent as DJ’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 DJ’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 DJ;

·                 DJ 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;

·                 DJ 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 DJ in order to remove the black tarry Wonder Dust that had adhered to DJ’s penis and to properly circumcise him so as to prevent any disfigurement and functional impairment.

Bodily Harm

[130]     Section 2 of the Code defines bodily harm:

... any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.

[131]     In this case, DJ 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 DJ’s comfort for a number of days.  DJ 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 DJ’s penis and to prevent the likely disfigurement.  I would not characterize the injury as merely transient or trifling.

Conclusion Regarding Count 1

[132]     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 DJ.  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.

Count 2 – Aggravated Assault

[133]     The Crown submits that the accused is also guilty of aggravated assault.  Section 268(1) of the Code states: “Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.”  DJ was not maimed and his life was not seriously endangered.  Dr. Afshar’s operating prevented DJ 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 DJ’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.

[134]     In this case, DJ’s injury, while significant, should be placed at the lower end of the spectrum of bodily harm.  The actual degree of the bodily harm that he suffered is not analogous to a maiming or a disfigurement, and his life was not endangered.

[135]     I find the accused not guilty of the offence of aggravated assault.

Count 3 – 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 DJ’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. 

The Accused’s Notice of a Constitutional Question

[139]     Counsel may address the issue of the defence’s application for a Constitutional remedy under s. 24(1) of the Charter.

“M.J. Allan J.”

_______________________________

The Honourable Madam Justice Allan