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Dear Mr. Dosanjh:

Infant circumcision has been in the news quite a bit recently -- in fact, it made headlines across the nation in October. It was likened to criminal assault by Dr. Margaret Somerville, Founding Director of the McGill Centre for Medicine, Ethics, and Law, and to child mutilation by Dr. Eike Kluge, Chair of the Department of Philosophy at the University of Victoria and a former Director of Ethics of the Canadian Medical Association.

Routine infant circumcision involves the amputation of a normal body part. It is carried out on healthy individuals in whom no disease or disorder is present. Originally introduced into the practice of medicine by Victorian physicians bent on keeping sexual pleasure to a minimum, it is now known to have no medical indication. It has been opposed by the Canadian Paediatric Society for some twenty-five years.

The essence of newborn circumcision is to expose a healthy individual to surgical risk while depriving him of his own erogenous tissue without his consent. I would be grateful if you could briefly outline for me the implications under the current law in British Columbia of carrying out this procedure. It is my understanding that, in general, any consent given by parents for non-therapeutic surgery on infants is ineffective, on account of the respect that must be paid under the common law to the physical integrity of an infant as a distinct person. I understand further that forcible non-therapeutic circumcision violates the provisions of both the Criminal Code of Canada and the Infants Act of British Columbia.

Is it legal to carry out routine infant circumcision in British Columbia?

Yours sincerely,
 
[signed]
 
D ennis H arrison
 

Dear D ennis H arrison:

Thank you for your letter of December 12, 1997, concerning the legality of infant circumcision in British Columbia. Please accept my apology for the delay in responding.

Your letter inquires whether infant circumcision contravenes the federal Criminal Code. Infant circumcision is a medical procedure which has been accepted for many years, and is required by some religious groups. It is not expressly prohibited under the Criminal Code.

Public health matters are the responsibility of my colleague, the Honourable Penny Priddy, recently appointed as Minister of Health. Therefore, I have taken the liberty of forwarding a copy of your letter to Minister Priddy for her attention.

I appreciate the opportunity to respond.

Yours sincerely,
 
Ujjal Dosanjh
 
Attorney General

cc:  The Honourable Penny Priddy
 

The Honourable Ujjal Dosanjh
Attorney General
Province of British Columbia

Dear Mr. Dosanjh:

I would like to raise questions in regard to infant male circumcision, a subject on which we have had previous correspondence. In a letter dated December 12, 1997, I inquired about the legal status of this procedure. You responded as follows in a letter dated July 8, 1998: “[infant male circumcision] is not expressly prohibited under the Criminal Code.”

Must a particular practice be expressly prohibited under the Criminal Code to be illegal?

You characterized infant male circumcision as a public health matter, and forwarded my letter to the Honourable Penny Priddy, Minister of Health, who in turn passed it along for consideration and reply to Ms. Janet E. McGregor, Assistant Deputy Minister. I received a thoughtful response from Ms. McGregor dated August 14, 1998.

With respect, infant male circumcision is more than a public health issue. The consensus of medical opinion today is that circumcision of newborn boys has no medical indication. Putting vulnerable persons at risk to perform nonessential surgery has legal and human rights dimensions that cannot be ignored.

The medical rationale for infant male circumcision has focused on health benefits that are uncertain, remote, and vanishingly small. The benefits of normal anatomy have been excluded from consideration, as have the rights of children to security in their persons. These rights are guaranteed under Section 7 of the Charter of Rights and Freedoms.

Disturbing parallels can be drawn on many levels between male circumcision on the one hand and the practice commonly known as female genital mutilation, or FGM, on the other. Both practices have found support in the medical community. According to Dr. Saed Thabet, a professor of gynaecology at Cairo’s Kasr El Aini Teaching Hospital, girls who have not undergone circumcision “are more liable to infections and cancers.” (British Medical Journal, 3 August 1996, page 249). Dr. Thabet’s views have been echoed by Dr. Munir Fawzi, a British-trained gynaecologist and professor at one of the leading institutions of higher learning in the Middle East: Ain Shams University in Cairo (The Washington Post, June 25, 1997, page A26).

Female circumcision was practised in the United States for over a hundred years. As late as the 1970s, it was touted in a medical journal as a cure for frigidity (L. Wollman, “Female Circumcision,” Journal of the American Society of Psychosomatic Medicine and Dentistry, 20: 130-1, 1973).

Male circumcision cannot be readily distinguished from FGM on the basis of severity. Some forms of female circumcision involve removal of only the clitoral hood, while others involve making a symbolic nick without excising any tissue whatever. These forms of female circumcision are clearly less invasive than male circumcision.

In summary, I can see no theoretical basis for drawing a distinction between circumcision of girls and circumcision of boys. In the absence of medical need, both operations amputate healthy genital tissue without patient consent.

Can you tell me why boys born with normal genitals are not enjoying the same degree of protection under the law as girls born with normal genitals?

I enclose the following background information:

• Dr. Eike-Henner Kluge’s ethical analysis of female and male circumcision published in the Canadian Medical Association Journal 1993. Dr. Kluge is Chair of the Department of Philosophy at the University of Victoria. He is also a member of the Advisory Committee on Ethical Issues in Health Care at the Ministry of Health and a former Director of Ethics and Legal Affairs at the Canadian Medical Association.
   
• Copies of two letters, dated November 10, 1997 and January 28, 1998, from Dr. Margaret A. Somerville, Founding Director of the McGill Centre for Medicine, Ethics and Law to Dr. C. Robin Walker, a member of the Fetus and Newborn Committee of the Canadian Paediatric Society and co-author of that society’s 1996 position statement on neonatal circumcision.

Sincerely,
 
[signed]
 
D ennis H arrison

encl.

cc:

The Honourable Penny Priddy, Minister of Health
Ms. Janet E. McGregor, Assistant Deputy Minister, Ministry of Health
Dr. T.F. Handley, Registrar, College of Physicians & Surgeons of B.C.
 

Dear D ennis H arrison:

Thank you for your further letter of June 10, 1999, concerning infant circumcision. Please accept my apology for the delay in responding.

You assert that infant male circumcision should be made illegal. Initially, your letter implies that this could be achieved outside the Criminal Code but later you question why male circumcision does not fall under the Criminal Code in the same way as female genital mutilation. The Criminal Code is a federal responsibility and you may therefore wish to contact the Honourable Anne McLellan, federal Attorney General. Ms. McLellan is responsible for proposing amendments to the Criminal Code to Parliament.

You also raise concerns about human rights and circumcision and I note you have copied your letter to Mary-Woo Sims, Chief Commissioner of the B.C. Human Rights Commission. Although I am the Minister responsible for human rights, the Commission independently investigates complaints that may fall under a protected ground of the B.C. Human Rights Code.

In addition, I note you have directed a copy of your correspondence to the Minister of Health and officials of that Ministry with whom you communicated on this same matter. Because this is a health matter on which professional and public opinion is divided, Ministry of Health staff may be able to advise you on where best to express your health-related concerns.

I appreciate the opportunity to review the documentation you provided to support your point of view.

Yours sincerely,
 
[signed]
 
Ujjal Dosanjh, QC
Attorney General

cc:

The Honourable Penny Priddy
Mary-Woo Sims
Dr. T.F. Handley
Dr. Ian Courtice, President, B.C. Medical Association
 

The Honourable Ujjal Dosanjh
Attorney General
Province of British Columbia

Dear Mr. Dosanjh:

Thank you for your letter of August 18th concerning infant circumcision. I apologize for not expressing myself more clearly in my letter of June 10th. I did not mean to suggest that infant male circumcision should be made illegal; rather, I meant to suggest that infant male circumcision was illegal under current provisions of the Criminal Code, though like most other forms of wounding, male circumcision is not specifically mentioned in that document.

With respect, your letter has not assisted me to understand why girls and boys are not receiving equal protection under the law. It seems to me that if surgical interference with female genitals for non-medical reasons is unlawful, then surgical interference with male genitals for non-medical reasons must be equally unlawful.

You state that infant male circumcision is a matter on which professional and public opinion is divided. However, there has been a consensus in the medical community for at least a quarter of a century that neonatal circumcision is not medically required. Neither the Canadian Paediatric Society nor any other organization of medical professionals in the world recommends this procedure.

Every human being has the right to be free of surgery that is not medically required. As Justice Cory of the Supreme Court has observed,

Canadians think of their bodies as the outward manifestation of themselves. It is considered to be uniquely important and uniquely theirs. Any invasion of the body is an invasion of the particular person. Indeed, it is the ultimate invasion of personal dignity and privacy... the innate dignity of the individual... is, to a large extent, based upon the integrity and sanctity of the body. (R. v. Stillman [1997] 1 S.C.R. 607).

Yours sincerely,
 
[signed]
 
D ennis H arrison

cc:

Dr. Ian Courtice, President, B.C. Medical Association
Dr. T.F. Handley
The Honourable Penny Priddy
Mary-Woo Sims
 

Dear D ennis H arrison:

I am writing regarding your additional letter of August 24, 1999, responding to my comments on infant circumcision. I must once again apologize for the delay in my reply.

You suggest that infant male circumcision is a type of wounding and therefore is illegal under the Criminal Code of Canada. I respect your right to hold this opinion. However, criminal charges could not presently be supported for this practice, given the requirement of the prosecutor to prove that the medical practitioner intended to cause harm, or by his or her actions, was criminally reckless as to whether harm was caused.

Law enforcement and prosecution authorities do not interpret the Criminal Code in the way you describe regarding this practice. As Attorney General, I would not be prepared to challenge the accepted understanding without direction from the federal government through a specific amendment to the Criminal Code.

As to your assertions respecting the medical community, male infant circumcision, and medical requirements for surgery, I defer to the Honourable Penny Priddy, Minister of Health. I note that you have provided a copy of your letter to my colleague.

Yours sincerely,
 
[signed]
 
Ujjal Dosanjh, QC
Attorney General

cc:  The Honourable Penny Priddy
 

The Honourable Ujjal Dosanjh
Minister of Justice and Attorney General
Province of British Columbia

Dear Minister:

Thank you for your letter of November 15th.

You write that criminal charges cannot presently be supported for the practice of infant male circumcision, given the prosecutor's requirement to prove the medical practitioner either intended to cause harm or was acting recklessly.

With respect, I have some difficulty accepting the validity of this argument. Female circumcision, like male circumcision, is performed because its supporters view it as beneficial, not because they intend to cause harm. It seems to me that if a person can be prosecuted for circumcising a girl without intending to cause harm, then a person can be prosecuted for circumcising a boy without intending to cause harm. To suggest otherwise is to practise discrimination on the basis of sex.

I believe there are other instances where a person can be prosecuted for a criminal offence despite lack of intent. Causing a serious motor vehicle accident while intoxicated is an obvious example.

As for acting recklessly, infant male circumcision is the surgical amputation of a normal body part without specific medical indication, without patient consent, and against the recommendation of virtually every medical organization in the world. I believe such an act falls well short of the standard of care expected of a reasonable person.

For your information, I enclose an abstract of the Canadian Paediatric Society's position statement on neonatal circumcision. Note the recommendation: "Circumcision of newborns should not be routinely performed."

I am still unable to understand why the legal system is failing to grant males and females equal protection from unnecessary surgical operations on the genitals.

Yours sincerely,
 
[signed]
 
D ennis H arrison

Enclosure

cc:

The Honourable Penny Priddy
Mary-Woo Sims
 

Dear D ennis H arrison:

I am writing in response to your letter of letter of November 19, 1999, expressing your ongoing concerns about infant male circumcision. Please accept my apology for the delay in responding.

In my previous letter dated November 15, 1999, I explained that I would not be prepared to challenge the accepted understanding of the provisions of the Criminal Code related to wounding. I respect your right to disagree with me and to hold strong views about the subject of circumcision. The Criminal Code is a federal responsibility. You may wish to contact the Honourable Anne McLellan, federal Minister of Justice and Attorney General of Canada, about your concerns in that regard. [Contact info supplied] I cannot add anything further to my previous response and must advise you that I will not reply to further letters from you on the topic of circumcision.

Yours sincerely,
 
[signed]
 
Ujjal Dosanjh, QC
Attorney General
 

Dear Mr. Dosanjh:

Thank you for your letter of December 31st.

I wish to draw your attention to a letter I have received from Dr. Margaret Somerville, founding director of the McGill Centre for Medicine, Ethics and Law, and professor in the faculties of law and medicine at McGill University. I provided Dr. Somerville with copies of your correspondence. Dr. Somerville believes there are mistakes in the analysis you set forth in your letter of November 15, 1999.

I enclose a copy of Dr. Somerville's letter for your information.

Yours sincerely,
 
[signed]
 
D ennis H arrison
 

Hon. Andrew Petter
Attorney General of British Columbia

Dear Mr. Petter:

I support your initiatives with respect to equal status for same-sex marriages. I am writing, however, in reference to a different matter, though it also has to do with equality. I am writing in regard to circumcision of male infants.

To place this issue in perspective, I would like to present some background information:

1. In 1996 the Canadian Paediatric Society (CPS) issued a policy statement recommending that "circumcision of newborns should not be routinely performed." This policy statement reaffirmed earlier statements issued by the CPS in 1975 and 1982. In 1984, newborn circumcision was dropped from the list of services covered by the Medical Services Plan. Clearly, there is now a high level of consensus in the medical community that infant male circumcision is not medically justified.
   
   
2. Leading Canadian ethicists such as Dr. Margaret Somerville (founding director of the McGill Centre for Medicine, Ethics and Law) and Dr. Eike-Henner Kluge (Chair, Department of Philosophy, University of Victoria, and founding director of the Department of Ethics and Legal Affairs at the Canadian Medical Association) have stated that since infant male circumcision is not medically justified, the procedure presents serious ethical difficulties.
   
   
3. Except in a medical emergency or with statutory authorization, no one can intrude on another person's body without that person's consent. Since children are not legally capable of giving consent, "substituted consent" is given on their behalf by parents or, if necessary, by a court. However, a 1986 Supreme Court decision (E. (Mrs.) v. Eve [1986] 2 S.C.R. 388) affirmed that parents can legally consent to a surgical operation on their child only if the operation is medically required. In Eve, a mother applied for the legal authority to have her mentally incapacitated daughter sterilized. The court denied the application on the grounds that the proposed sterilization was not necessary for the daughter's mental or physical health. Since routine circumcision is not required for a baby's mental or physical health, it would seem on the basis of Eve that a parent cannot legally give the consent necessary to perform it.
   
   
4. The courts have placed limits on the ability of parents to make decisions regarding medical treatment of their children, even when the parents are motivated by deep-felt religious beliefs. In M.(R.E.D.) v. Alberta (Director, Child Welfare Act) (1986), 32 D.L.R. (4th) 394, 4 R.F.L. (3d) 363, [1987] 1 W.W.R. 327, 47 Alta. L.R. (2d) 380, 74 A.R. 23, the presiding Justice ruled:
   
   

   ...that with regard to s. 7 of the Charter, the Act did not deprive the child S of the right to life: it protected that right. Assuming that the parents had a right under the same Charter provision to be free from state intervention, there had to be a balancing of protected but competing rights. The child's right to life took precedence over any competing right of the parents. The right to freedom of religion guaranteed by s. 2 of the Charter was not without qualification, despite its fundamental nature.

...criminal charges could not presently be supported for this practice, given the requirement of the prosecutor to prove that the medical practitioner intended to cause harm, or by his or her actions, was criminally reckless as to whether harm was caused.

In light of the above information, I would appreciate it if you could explain why the legal system is failing to grant males and females equal protection from medically unnecessary surgical operations on the genitals.

Sincerely,
 
[signed]
 
D ennis H arrison
 

Dear Sir:

I have been asked to respond to your letter of July 24, 2000, addressed to the Honourable Andrew Petter, Attorney General of British Columbia.

As I understand it, the purpose of your letter of July 24, and of previous letters written to then Attorney General Ujjal Dosanjh, is to question why those in the medical profession who carry out circumcisions of male infants are not charged with a criminal offence.

I have enclosed for your information a photocopy of the Criminal Justice Branch policy relating to the laying of charges. Crown Counsel must be satisfied both that there is a substantial likelihood of conviction, and that it is in the public interest to proceed with a prosecution. In my view, Crown Counsel would not be satisfied that there is a substantial likelihood of conviction, and in any event, would conclude that it is not in the public interest to proceed with a criminal prosecution.

Without commenting on the merits or the lack thereof, of male circumcision, there is not a consensus in Canadian society with respect to this matter. It is not a proper use of the criminal law to criminalize otherwise law-abiding citizens in order to put forward or to advance a social or ethical position concerning activities which, up until the present, have been seen as well within the norms of acceptable behaviour. Laying criminal charges is not an appropriate substitute for discussion, education and advocacy.

I hope that this is of assistance to you.

Yours truly,
 
[signed]
 
David L. Winkler, QC
Director, Policy and Legislation
Criminal Justice Branch

Enclosure: Crown Counsel Policy Manual (Core Policy)
 

Dear Mr. Winkler:

Re: File number 55000-02

Thank you for your letter of August 23rd, with an enclosure, in response to my concerns about infant circumcision. I agree that criminal charges are no substitute for discussion, education and advocacy; but at some point the legal system must start protecting those who cannot protect themselves.

The gist of your letter, as I understand it, is that criminal charges are not currently laid against physicians who perform infant male circumcision because the likelihood of conviction is not substantial and in any event, proceeding with a prosecution would not be in the public interest. I would appreciate clarification of the following points:

1. Why is the likelihood of conviction not substantial?
    
2. Is the likelihood of conviction not an evidentiary test that is generally applied to individual cases, rather than to entire classes of criminal acts?
    
3. Why would it not be in the public interest to prosecute a physician who has undertaken an invasive, irreversible surgical operation without a demonstrable medical need and without the personal consent of the patient? The common law right to bodily integrity is deeply entrenched in our legal system. As Justice Cory of the Supreme Court noted in R. v. Stillman, [1997] 1 S.C.R. 607, "any invasion of the body is an invasion of the particular person. Indeed, it is the ultimate invasion of personal dignity and privacy."
    
4. Deciding which acts should be subject to criminal prosecution involves making value judgments. Value judgments must be justified. What is the justification for presuming that infant male circumcision is not a crime, and that physicians who perform it are not criminals?

You also state that "it is not a proper use of the criminal law to criminalize otherwise law-abiding citizens in order to put forward or advance a social or ethical position concerning activities which, up until the present, have been seen as well within the norms of acceptable behaviour." However, acceptable behaviour has never included unjustified incursions on the bodies of vulnerable persons. As the lack of medical justification for infant male circumcision becomes more apparent, the need for a change in the application of the law also becomes more apparent.

Your views on the purpose of criminal law do not seem to be shared by the federal Department of Justice. According to the department's Web site, "laws are not only designed to govern our conduct: they are also intended to give effect to social policies... Another goal of the law is fairness. This means that the law should recognize and protect certain basic individual rights and freedoms, such as liberty and equality." ¹

You refer to the lack of a consensus. However, there has been a consensus in the medical community for at least a quarter of a century that newborn circumcision is not medically justified. In 1975, the Canadian Paediatric Society (CPS) issued a policy statement describing circumcision of male infants as a "mutilative operation of questionable benefit." ² The CPS has reaffirmed this position in all subsequent statements.

While I recognize the need to avoid criminalizing otherwise law-abiding citizens, I also recognize the need to protect basic human rights. With respect, can the legal system subordinate the latter to the former and still maintain public confidence in the administration of justice?

I enclose a copy of a paper by Dr. Arif Bhimji entitled Infant Male Circumcision: A Violation of the Canadian Charter of Rights and Freedoms, published recently in a new electronic journal called HealthcareLaw. I would be interested in hearing your opinion of Dr. Bhimji's work.

Sincerely,
 
[signed]
 
D ennis H arrison
 

1.	http://www.canada.justice.gc.ca/en/dept/pub/just/CSJ_page3.html (accessed Aug. 31, 2000).
2.	Canadian Paediatric Society. Circumcision in the newborn period. (Statement no. FN 75-01).

cc: The Honourable Andrew Petter, Attorney General
 

Dear Sir:

This is in response to your letter of September 11, 2000, with respect to the issue of infant male circumcision. While I appreciate the sincerity of your interest in this issue, I am not prepared to engage in an extended exchange of views with respect to this subject. I have provided you with a brief statement of my position. You are of course, at liberty to agree or disagree as you see fit.

Yours truly,
 
[signed]
 
David L. Winkler, QC
Director, Policy and Legislation
Criminal Justice Branch

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