November 15, 2012
Top court hears botched home circumcision case Friday
By Natalie Stechyson
OTTAWA — The Supreme Court of Canada will hear on Friday the dramatic case of a B.C. father who, for religious reasons, tried to circumcise his four-year-old son on his kitchen floor with a carpet blade and a blood coagulant meant for horses.
Among the many issues the court will have to consider is the meaning of criminal negligence, and whether religious beliefs can go into the determination of what is reasonable behaviour, said Carissima Mathen, a law professor at the University of Ottawa.
“When you have something like this where, on an objective basis, the benefits of this procedure are mixed, and it seems like the primary motivation for circumcising your son is cultural or religious, are those beliefs something that we should factor into whether this a reasonable thing for someone to have done?” Mathen said.
“It raises questions such as why is it, in fact, that we permit infant circumcision?”
A trial judge found that over the years after his son’s birth, the father known only as D.J.W. decided to “make things right with God” by following the laws of Moses, according to court documents. This included circumcision.
The trial judge found that D.J.W. had consulted with two rabbis and four physicians, and had asked several doctors to perform his son’s circumcision. None would do it because the boy would have required a general anesthetic, which could not be justified for a child so young.
In 2007, after giving his son some homemade honey wine, D.J.W. attempted to circumcise the boy on the kitchen floor, according to court documents, wounding him in the process.
The boy later had to have corrective surgery.
D.J.W. was found guilty in 2009 of criminal negligence causing bodily harm, but was acquitted of two other charges. The B.C. Court of Appeal stayed the conviction and upped the charge to aggravated assault and assault with a weapon.
In delving into the case, the top court will also look at whether the injury D.J.W. inflicted was a “wound” and if the blade he used on his son, known only as D.J., can be considered a “weapon,” said Marie-France Major, a partner at Ottawa’s Supreme Advocacy LLP.
D.J.W. is seeking an acquittal, maintaining that the trial judge was wrong to convict him of criminal negligence, but right to acquit him of aggravated assault and assault with a weapon, according to court documents.
Counsel for D.J.W. will argue that the man’s actions were performed with “reasonable care” and without intent to harm his son.
The Crown will argue that this is a case about child abuse, not D.J.W.’s freedom of religion or even about circumcision.
[“The result,” according to court documents submitted by the Crown, was “the foreskin on D.J.’s penis stuck out like two arms.] “D.J. was not circumcised. He was disfigured,” the Crown’s factum reads.
A decision from Friday’s case is not expected for some time.