Dear Mr. Bender:

This letter is in response to your correspondence to Mr. David Tsubouchi, M.P.P., dated August 12, 2000, a copy of which you forwarded to the Professional Standards Bureau of the Halton Regional Police Service.

It has been determined that your complaint is one of Conduct and the Officers that you have named are Staff Sergeant Douglas and Sergeant Eakins.

As you outlined in your letter, Sergeant Eakins met with you and reviewed your complaint against Dr. Chiu. You also state the he pointed out to you several reasons why he would not file your complaint. Sergeant Eakins advised you that because you were only 4 days old at the time, you would not be able to serve as a witness to the event.

Mr. Bender, a police officer must have "probable grounds" for believing that an offence has been committed before a charge can be laid for a criminal offence. "Probable grounds" means: "that a reasonable person, standing in the shoes of the officer, would have believed that reasonable and probable grounds existed." However, the police need to go further and establish a "prima facie" case (R. v. Storrey, [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316, 75 C.R. (3d) 1).

In your situation, Sergeant Eakins having been provided by you with the consent form, executed by your mother on October 18, 1978, would not be able to prove the "intent" required for a criminal offence and thus prove a "prima facie" case.

You were advised by the officer that your complaint centred on a civil matter. It is your decision not to pursue the matter in civil court.

I appreciate that your feelings are genuine and that you have been deeply affected by your circumcision, but the Halton Regional Police Service will not be investigating this matter any further.

This decision does not preclude you from laying a private information before a Justice of the Peace. Should you be interested in pursuing that avenue, please contact the Provincial Court in Burlington at [phone no.] to make an appointment with a Justice of the Peace.

Sincerely,
 
[signed]
 
Dave Denton
Detective Sergeant
 
Enclosure
 

Ontario Civilian Commission on Police Services
Toronto, Ontario

To Whom It May Concern,

This letter is to officially request that the commission review my complaint. The Professional Standards Unit has failed to adequately generate reasonable justification for the dismissal of my case.

In explaining the ruling of the Professional Standards Unit, Officer Dave Denton states that

...a police officer must have "probable grounds" to believe that an offence has been committed before a charge may be laid for a criminal offence. "Probable grounds" means: "that a reasonable person, standing in the shoes of the officer, would have believed that reasonable and probable grounds existed. However, the police need to go further and establish a "prima facie" case. (R. v. Stor[r]ey, {1 S.C.R. 241, 53c.c.c. (3rd) 316, 75 C.R. (3rd) 1 (7.0). [Sic]

The importance of this requirement to citizens of a democracy is self-evident. Yet society also needs protection from crime. This need requires that there be a reasonable balance achieved between the individual's right to liberty and the need for society to be protected from crime. Thus the police need not establish more than reasonable and probable grounds for an arrest. (Emphasis added).

In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest." (Emphasis added).

...there is no indication that the arrest was made because a police officer was biased towards a person of a different race, nationality or colour, or that there was a personal enmity between a police officer directed towards the person arrested. These factors, if established, might have the effect of rendering invalid an otherwise lawful arrest. However, the arrest of the appellant was in every respect lawful and proper.

The arrest of Storrey did not violate the accused's charter rights as outlined in section 9 because the police had probable grounds for the arrest. Similarly, the police in this case do not need to establish a prima facia case against Dr. Chiu. Dr. Chiu's section 9 rights will not be violated by an arrest, if the police have probable grounds. However, I fail to understand why the Storrey decision is relevant in this case. Storrey was arrested without a warrant. In the case before the commission, no arrest has been made. As such, the police can obtain a warrant to arrest Dr. Chiu and avoid the entire complications presented in the Storrey case.

It is undeniable that probable grounds for arrest exist in this case. Section 268 of the Criminal Code of Canada defines aggravated assault as "Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant." Since circumcision results in the permanent disfigurement of the penis, it must be considered an aggravated assault.

To further this argument, Margaret Somerville, a medical ethicist and professor of law at McGill University, states

All wounding of one person by another person is prima facie criminal assault (indeed, aggravated criminal assault), but it can become justified-that is, not illegal, not a crime-on certain conditions. The most common and important situation in which funding is not a criminal assault, is when it is indicated as medically required surgery and it is undertaken with the informed consent of the person on whom it is carried out or, if this person is incompetent, of their legal representative (in the case of children, the parents). The difficulty with infant male circumcision is that when it is not medically indicated-the Canadian Paediatric Society, for instance, has stated it is not medically indicated as a routine procedure-medical justification is not present and, although adults can consent to have a non-therapeutic intervention carried out on themselves provided the intervention is not considered to be contrary to public policy, in general, they may not consent to having such interventions carried out on their children. The exception to this is if the intervention is considered to be what the law calls de minimis, that is, a trifle of which the law will not take notice. (http://www.courtchallenge.com/letters/somer1.html).

This issue of consent is very convoluted in my case. Since I was only four days old at the time of the mutilation, I could not legally provide my consent to the excision. My mother, Rachel Bender, granted proxy consent for the procedure. The courts have been very clear with regards to parents' right to grant proxy consent on behalf of minor children under their care. In B.(R.) v. Children's Aid Society of Metropolitan Toronto, the court concluded that parent's right to grant proxy consent (or in this case proxy refusal), does not extend to the point of endangering the child. The court further stated "There is no room in section 7 for parents to override the child's right to life and security of the person."

Clearly, circumcision was a violation of my fundamental human right of security of the person as guaranteed under both domestic and international law. Security of the person is provided for by the Canadian Bill of Rights (section 1 subsection a), the Canadian Charter of Rights and Freedoms (section 7), the Universal Declaration of Human Rights (article 3) and the International Covenant on Civil and Political Rights (article 9).

Even more shockingly, the state, by sanctioning and funding this procedure is violating article 19 paragraph 1 and article 24 paragraph 3 of the UN Convention on the Rights of the Child. Also, since female genital mutilation is illegal in Canada, the state is violating gender equity rights which are enshrined in the Canadian Bill of Rights (section 1), the Canadian Charter of Rights and Freedoms (section 15 subsection 1 and section 28), the UN Declaration of Human Rights (article 2), the International Covenant on Economic, Social and Cultural Rights (article 2 paragraph 2) and the International Covenant on Civil and Political Rights (article 2 paragraph 1).

Obviously since my mutilation occurred in 1978 it predates the Charter of Rights and Freedoms, but my legal action does not. On August 4, 2000, the night I attempted to file my complaint against Dr. Chiu, I was fully under the protection of the Charter. The actions of the police on that night violated my Charter rights. If I had been a woman claiming that I had been circumcised, the police would have acted in a much more pro-active manner. However, since I was a male claiming that I had been violated by the same offence, I was treated in an unfair, prejudicial manner. By their actions the police violated sections 15 and 28 of the Charter. I demand that this miscarriage of justice be rectified. If the situation is not promptly remedied, the Ontario Human Rights Commission will be presented with my case.

It is obvious that this matter has grave legal ramifications. It is absolutely imperative that this matter be presented before the courts so that they may determine the legality of routine male genital mutilation. Since thousands of newborn Canadian males are being mutilated each year, it is necessary to present this matter before the judiciary as soon as possible in order to prevent further human rights abuses from occurring. Since my appeal of the Professional Standards Unit was unjustly quashed based on misinformation, the Chief must instruct the police to act on my complaint.

Best regards,
 
[signed]
 
Paul Bender
 

Ontario Civilian Commission on Police Services
Commission civile des services policiers de l'Ontario

Dear Mr. Bender:
 

I wish to acknowledge receipt of your fax/letter dated October 19, 2000, in which you requested the Ontario Civilian Commission on Police Services to review the decision of the Halton Regional Police Service with respect to the above-noted matter.

The review file will be prepared for examination by the Members of the Ontario Civilian Commission on Police Services. The Members will then make a decision pursuant to the provisions of the Police Services Act.

If you wish to provide any comments or additional information, please provide them in writing to our office by November 9, 2000.

The Commission's decision will be sent to all parties in writing.

Sincerely,
 
[signed]
 
Sheldon Prior
Case Manager
 

Ontario Civilian Commission on Police Services
Commission civile des services policiers de l'Ontario

Dear Mr. Bender:
 

We are writing in response to your request for a review of the decision by Detective Sergeant D. Denton of the Halton Regional Police Service regarding your complaint against Staff Sergeant K. Douglas and Sergeant D. Eakins of that service.

The Ontario Civilian Commission on Police Services is a civilian agency which is independent of and autonomous from the police services of this Province. Your file came before a Review Panel composed of Commission members.

The Panel considered the contents of the file including the initial complaint, the correspondence that you sent to our office for review, the complaint file provided by the Halton Regional Police Service and the decision by Detective Sergeant Denton.

Upon reviewing your file, the panel is satisfied that the decision of the Halton Regional Police Service dated September 26, 2000, is appropriate considering the findings in its investigation. As you may know, the evidentiary standard required by the Police Services Act to allege misconduct is one of clear and convincing evidence.

Please be advised that under Part V of the Police Services Act, s.72(12), the Commission's decision is final and binding and there is no appeal therefrom. Accordingly, our file is now closed.

Sincerely,
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
Per:
 
[Signed]
 
Sheldon Prior
 

^Top