Canada’s Anti-Witchcraft Law

A friend of mine down in London Ontario, who is the branch manager of a paralegal company, recently drew my attention to section 365 of the Criminal Code of Canada. This is the section which deals with the practice of witchcraft. It reads as follows:

365. Every one who fraudulently
(a) pretends to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration,
(b) undertakes, for a consideration, to tell fortunes, or
(c) pretends from his skill in or knowledge of an occult or crafty science to discover where or in what manner anything that is supposed to have been stolen or lost may be found,
is guilty of an offence punishable on summary conviction.

R.S., c. C-34, s. 323.

It’s been in the news recently due to the case of Vishwantee Persaud, a woman charged with witchcraft after bilking a Toronto lawyer of more than ten thousand dollars by posing as the embodiment of his dead sister. As part of the article goes:

“She said she came from a long line of witches and could do tarot-card readings,” says Detective Constable Corey Jones, who investigated the case. “It was through this that she cemented [the lawyer’s] trust,” setting the stage for the fraud to follow, which, according to Det. Constable Jones, included claiming fictitious expenses such as law-school tuition and cancer treatments.

Det. Constable Jones says it’s rare to charge someone under Section 365, but the circumstances of this case fit.

“It’s a historical quirk,” says Alan Young, a professor at Osgoode Hall Law School. Some sections of the Canadian criminal code reflect offences that were more prevalent centuries ago. When the code was enacted in 1892, witchcraft per se was no longer a punishable offence, he says, but lawmakers wanted to ensure witchcraft wasn’t used as a cover for fraud.

Read the whole article here.

My friend down in London is lobbying the government to get that law repealed. His letters to the Attourney General are posted to the discussion board of a Facebook group, and you can read them here.

When he described this lobbying work to the pagan community (via that Facebook group), some of the local pagans argued for the preservation of this law. The most widely circulated statement of support for the law from the pagan community came from an acquaintance of mine who works at The Occult Shop, in Toronto. In her view, the law is necessary in order to clamp down on those who claim to possess magic powers and who advise their clients poorly, and (again) bilk them of many thousands of dollars. Here’s a portion of her note:

As someone who works in the Occult business, there are hundreds of so-called psychics out there who make their pitiful livings by preying on the confused, hurt and weak. They will do a $10 dollar reading for you, and then charge you hundreds or thousands-or TENS of thousands- to remove your ‘curse’ for you, or bring back your straying other half.

Read the whole note here.

There are a few things I don’t like about this debate. The first one I’ll mention only in passing: I don’t like the way certain people from the “opposition” camp have solicited my support for their point of view, before I had a chance to find out for myself what the issue was. One person even telephoned me at home asking for my help. I don’t like this because I would rather make up my own mind, rather than be roped on to a bandwagon. And at any rate, my word on this matter is less influential than such people may think. I’m a fairly well known pagan writer, but I don’t have “followers” in the sense of people who will agree with anything I happen to say.

But more to the point: the more that I study the law, and the case of Vishwantee Persaud, and the debate taking place on the Facebook group and following NC’s note, the more I agree with the proposition that the anti-witchcraft law should be repealed, and the more I find arguments against this proposition unsatisfactory. Here are some of my reasons why.

For the purpose of protecting people from hucksters and frauds who would prey upon the vulnerable, it seems clear to me that the existing fraud laws already suffice in this case. I think it redundant and unnecessary to include a special mention for witchcraft. At any rate, the law as stated now declares witchcraft punishable “on summary conviction”, so the punishment here is not necessarily any worse than the punishment for ordinary fraud.

The key word in the legislation is the word “pretending” (in subsections (a) and (c).) As pointed out to me by my friend in London via private correspondence: the word “pretending” here suggests that the State does not believe that witchcraft could be real: anyone who says they are practicing witchcraft is only pretending. That can potentially include those who say that they are practicing the religion. With this in mind, it’s not difficult to imagine a religiously conservative or puritan judge ruling that anyone who practices the religion of Wicca is “pretending” to practice witchcraft.

Our religious practices are already protected by the Canadian Charter of Rights and Freedoms, which is part of our constitution and thus trumps the Criminal Code. But a lot will depend on the eye of the beholder here. It is not difficult to imagine a future government much more conservative than our present one, declaring that witchcraft and wicca is not a religion, and that anyone who practices it is “pretending”. Remember, it doesn’t matter if you think it’s a religion: it matters if the law thinks so. I do not know if any judicial precedents have established wicca and witchcraft as a religion in the eyes of the law. So I’ve written to a lawyer that I know, and I await his response.

Another thing pointed out to me by my friend in London: someone charged with witchcraft would soon find his or her culture and deepest religious beliefs on trial. I find this argument very persuasive. Imagine if you were arrested and charged with witchcraft for doing a Tarot reading and charging only $10 for it. Is the reading part of your religion, or is it pretend-witchcraft? The court, and not you, will decide. Again, a lot will depend on the eye of the beholder here. Many of the things that witches do are not much different from things that other people in other religions do: light a candle and lay out an offering before an icon or representation of a deity, for instance. This is not much different than what Catholics, Hindus, Santarians, some Aboriginal persons, and the like, regularly do. That relativism gives the courts and the police enough flexibility to come down hard on ‘legitimate’ practitioners of Wicca, if they should so wish, without coming down on the Catholic next door who dons a scapular, and lights a candle, blessed by his local bishop.

But the psychic huckster next door to that Catholic, charged with witchcraft after having extorted huge sums of money from vulnerable clients, could use that very relativism to get the charges dismissed. By claiming that what he does is religion, and not pretend-witchcraft, he can exercise his Charter rights and have the charges dropped. Thus, instead of protecting the victim, the law might protect the predator. Charge these people with fraud instead, so that they can’t use the religion angle in their defence. Tighten up the fraud laws if necessary. But let’s not mix religion with it. The psychic huckster can probably afford a better lawyer than you. After all, the fees he charges to his clients are higher.

(With thanks to G.C.)

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5 Responses to Canada’s Anti-Witchcraft Law

  1. Anonymous says:

    You’re making too much of this Brenden.
    The British Witchcraft Act of 1735 exists both in Britain (in the form of the 1951 Fraudulent Mediums act) and many other previous british colonies, such as Israel, Canada and Ireland.

    The act is geared towards “fraudulence” in it’s modern day interpretation.
    Previous court rulings in all countries with such laws have clearly set a precedent to define “fraudulence” as deceiving another individual for services, payment or goods. i.e. This act has nothing to do with you do in the comforts of your own home or with your friends. But, if you claim to perform witchcraft or divination for a fee, you might find yourself on trial.
    The act is seldom used, and I honestly wish it would be used more often. I have no sympathy for charlatans who claim to read the future and feed of the last hopes of the hopeless.

    — Justin

    • admin says:

      Hi Justin,

      I don’t have any sympathy for charlatans either. What worries me is:

      – the prospect of accused con-men using the religion angle as a defence in their trials, and

      – the prospect that the political winds in this country might change, and a law like this could be used by the authorities to quell the practice of legitimate minority religions. It is already happening in the United States; there is no reason to believe it could not happen here.

      This is what I think is not seen by those who oppose the idea that the law should be repealed.

      • crusader13 says:

        For myself, I have to disagree with the last two paragraphs of your reply. I do disagree with repealing this law, and I do see the possibility of it being used unscrupulously by the wrong people in power. However, this sort of threat exists with many laws in this country. I think that instead of repealing said laws, we need to place a closer watch on those in power to prevent the misuse of their power.

        On the other hand, if, as Justin would like, this law were used more often against the fraudsters and charlatans, it might shed more light on the true pagans and psychics, bring the mainstream view of us out of the dark ages. Although I’m probably just being my usual optimistic self in hoping for that.

  2. erynn999 says:

    I absolutely agree with you — this law should be abolished and appropriate fraud charges pressed. No court of law should be tasked with deciding whether or not someone’s religion or spiritual practice is “real” or “pretend.” I applaud your efforts in this direction and I hope that you have every success in getting the word out and changing this mess.

  3. Anonymous says:

    This law has to go.

    I remember back in the late 80’s doing a psychic expo in Calgary. City Hall had forced us all to purchase $200 “Fortune Teller” Licenses, which we did after much protest. Few of us wanted to accept that label, never mind pay for the privilege. We were photographed, and I don’t recall if we were also finger-printed. At any rate, the local fundamentalists came out to the show to protest, dragging the police along. The cops wanted no part of arresting us all for doing what we literally had license to do (pun intended). The promoter’s compromise was to put up signs saying “These readings are for fun and entertainment purposes only” and the cops left, with the disappointed fundies following soon after.

    While all’s well that ends well, this archaic and bigoted law is still being used selectively to harass us. It’s a violation of our charter rights, and other fraud laws can (and must) be used to protect victims of scams.

    Those who are skeptics will scoff, but I know many people who perform a true service and offer spiritual counseling far better than some quacks with 2 or 3 letters on their name-plates, for far less money. Granted, there is no way to know in advance if you will end up with a fraud artist or someone sincere, but a little common sense goes a long way. If anyone tells you your love life is “cursed”, pick up your wallet and get away from them with all due haste.

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