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.
My friend down in London is lobbying the government to get that law repealed.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.
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.)