OTTAWA: DIY Circumciser loses his appeal

The Calgary Herald
November 16, 2012

Father who circumcised his son on the kitchen floor loses high court appeal

OTTAWA - The Supreme Court of Canada has abruptly dismissed the appeal of a British Columbia man who tried to circumcise his four-year-old son on his kitchen floor with a carpet-cutting blade.

The boy needed corrective surgery to repair the damage from the botched procedure.

In a 7-0 ruling from the bench, the justices left intact a Court of Appeal ruling convicting the man of aggravated assault and assault with a weapon.

The man, identified only as DJW, was convicted at trial in October 2009 of criminal negligence causing bodily harm and acquitted on the two assault charges.

The appeal court restored convictions on the assault counts and stayed the negligence charge, conditional on the conviction for aggravated assault.

The man's appeal to the Supreme Court sought to have the assault charges thrown out again, but the justices dismissed the case from the bench, saying their reasons would be available in 48 hours.

The original trial was told the man felt his religious beliefs required that his son be circumcised. Doctors advised him to wait until the child was older and stronger before performing the procedure.

In its factum on the case, the Crown dismissed the religious reasoning.

"This is a case about child abuse," the Crown argued. "This is not a case about the applicant's religious freedom or circumcision generally." [But how do the material circumstances of the operation bear on the man's religious freedom or circumcision generally? If he had done it "properly" would it no longer be child abuse? How does this differ except in detail from Dr Andrew Freedman of the AAP Task Force on Circumcision, who circumcised his own son on his parents' kitchen table?]

DJW's lawyer argued that the man took safety precautions, including extensive research on the topic of circumcision.

"The appellant's actions were performed with reasonable cause ... and without intent to assault or in any way harm his son," the factum said.

The trial judge found the kitchen was not a sanitary place for a surgical procedure [Someone should tell Dr Freedman], that the blade used wasn't as sharp as a surgical instrument and it was inappropriate to use a veterinary product to try and staunch the bleeding from the boy's partly severed foreskin.

DJW's religious background was as a Jehovah's Witness, although he was "disfellowshipped" by his family and the church. The Crown said his religious education and associations later led him to believe that male circumcision was a covenant with God.

He attempted to circumcise himself in 2005 and could not stop the bleeding. He had to go to an emergency room where a doctor sutured the wound.

His name is under a publication ban to protect the child's identity.

Earlier story

OTTAWA: DIY Circumciser to be heard by top court

Canada.com
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.

Earlier story