In this case, the British Columbia Court of Appeal held that the religious freedom protections in the Charter of Rights and Freedoms do not protect a parent from criminal prosecution, in a case in which a father circumcised his son himself for religious reasons, and in defiance of doctors' advice, harming the child.
The accused became convinced that his son must be circumcised “to make things right with God”, but doctors refused to perform the procedure for medical reasons. The accused attempted to circumcise his four-year- old son in the kitchen of his home. The attempt injured the boy and he had to undergo an operation to prevent disfigurement and functional impairment. The accused was convicted of criminal negligence causing bodily harm, contrary to s.221 of the Criminal Code. He was acquitted of aggravated assault (s.268(2)) and assault using a weapon (s. 267(a)). The Crown appealed the acquittals and the accused appealed the conviction.
The accused argued on appeal that “freedom of religion” was a defence to the charges against him. The Court of Appeal held that the Criminal Code provisions did not infringe the accused’s religious freedom because his religion did not demand that the circumcision be performed by the accused, nor did it demand that the circumcision be performed immediately so that the accused had no alternative than to do it on his own. The accused also argued that since a parent may consent to a circumcision, performed by a person who is not a doctor, on behalf of their child, they may also perform a circumcision on their child personally. The Court of Appeal held that a parent may only consent to have force applied to their child where the force is reasonable in the circumstances and in the child’s best interests. Performing this operation in such a dangerous manner as the accused employed here was unreasonable. It was not in the child’s best interests.
December 22, 2011
Link to Decision
Meagan Jemmett
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