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Natasha Bakht, Associate Professor, University of Ottawa Faculty of Law and Jordan Palmer, PhD Candidate, University of Ottawa Faculty of Law
(2015) 35 Windsor Review of Legal and Social Issues 123
Excerpt: pp 123-125, 131-143
[Footnotes omitted. They can be found in the original via the link above]
In 2009, Vishwantee Persaud, a woman of South Asian descent, was charged under section 365 of Canada’s Criminal Code for “pretending to practise” witchcraft. Persaud was accused of posing as a witch to gain the trust of a Toronto lawyer and subsequently defrauding him of more than $27,000. Persaud claimed to be the embodiment of lawyer Noel Daley’s deceased sister, whose spirit would guide him to financial success. Persaud told Daley that she had come from a history of “good witches” with occult powers and that she could do a tarot reading for him. This tarot reading appears to be the primary reason for the charge of witchcraft, which was eventually dropped when Persaud pled guilty to other more serious and verifiable fraud offenses. Another recent example of the charge of witchcraft in Ontario, also involving a person of colour, was dropped when the accused made full restitution of monies received.
The charges against Persaud highlight the persistence of the facially-neutral but deeply patriarchal offense of “pretending to practise witchcraft” and its continued use as a method of social control for minority groups and women. The phenomenon of targeting women for witchcraft, with attendant negative consequences, is a practice that has a long history and wide application globally. For example, in May 2011, after having been accused of practicing witchcraft, forty-one-year-old Gauri Devi Saha of Bara, Nepal was severely beaten, stripped publicly, and forced to eat human waste by her neighbours. Women accused of witchcraft in Nepal are severely traumatized and suffer extreme physical and mental torture. They are ostracized by society, they lose self-respect, some are even rejected by their families, and many turn to suicide. It is primarily vulnerable women who are accused of witchcraft including widows, elderly women, women with low economic status, and those who belong to the so-called lower castes. In Northern Ghana, Oxfam Canada spokesperson Karen Palmer described “witch camps” populated by “old, emaciated, quite pathetic-looking women who are too old and too vulnerable to be living on their own…They were older women who had sort of outlived their usefulness and ended up being accused of witchcraft [and driven away].” It is unsurprising that this practice, fed by belief in witchcraft, “makes people distrustful and fearful of their own neighbors and family members.” The violence associated with this communal fear is concerning: “[h]ardly a week passes in South Africa without press reports of witches being killed.”
Canada’s retention and application of the archaic offense of pretending to practice witchcraft is problematic, both in its purpose and the disproportionate effect it has on women and certain religious and racialized groups. This article examines the historical persecution of women accused of practicing witchcraft in order to provide background to the history and ideology of the witchcraft offense in Canada. The gendered nature of the offense is considered along with the imperial role of the dominant Judeo-Christian belief structures in curtailing religious deviance and suppressing women’s powerful positions in the community as healers, midwives, and holders of holistic herbal and agricultural knowledge. An analysis of the witchcraft offense in Canada follows, including an examination of the confused judicial interpretation of the offense, and consideration of the social goals achieved by criminalizing such activity when overarching fraud offenses already exist in Canada. Finally, the constitutionality of section 365 is examined using a feminist and religious freedom lens. The recent case of Vishwantee Persaud provides the modern day backdrop to examine Canada’s witchcraft offense and propose the repeal of section 365.
THE WITCHCRAFT OFFENSE IN THE CRIMINAL CODE OF CANADA
Section 365 is contained within Part IX of the Code, “Offenses Against Rights of Property” and reads:
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 offense punishable on summary conviction.
This section raises several questions. While a provision against fraud and duplicity in a spiritual context is a salutary goal, why is there a need for such historically discriminatory and gendered language? What gains are made by adopting language still used to persecute vulnerable people globally? What does “pretend” mean, especially as it is absent from subsection (b)? Moreover, when is such conduct “fraudulent”? Why is the section a summary conviction offense, as opposed to a hybrid offense that can be treated as a more serious indictable offense? Why is the section necessary at all given the blanket legal prohibition on fraud found elsewhere in the Code? And perhaps most importantly, what fulfills the actus reus and mens rea required for a conviction?
The term “pretend” is extremely broad. It is defined by the Merriam Webster dictionary as “to imagine and act out (a particular role, situation)”, and has not been narrowed greatly by Canadian jurisprudence. Cases decided prior to a 1950s criminal amendment that added the term fraudulent, are relatively unhelpful on the issue of mens rea and actus reus. In R v Marcott, Justices Arbour and Osler concurred that an element of the offense was “that deception is practiced…and that the person undertaking to tell fortunes represents that he has the power to do so with the intention that such representation should be believed”, and “[where an] assertion, or undertaking [to predict the future] is made for reward…with intent to deceive, the offense is complete.” However, Justice Osler added the wrinkle that “the person so undertaking must know that he has no such power.”
Drawing on Marcott, the court in R v Pollock convicted a person with bona fide belief in spiritualism, finding that,
[t]here must be an intent, on the part of the person who is telling the fortune, to delude and defraud, but this, as I understand it, is not to be limited to cases where the accused is a cheat with no belief in his powers, but extends to every case where the accused intends that the person whose fortune is told shall believe that the fortune-teller is really possessed of the power; the intent to deceive or delude or defraud depending neither upon the honesty or dishonesty of the fortune-teller on the one hand, nor upon the fact that the other person is or is not deceived or deluded or defrauded on the other, but upon the existence of an intent on the part of the fortune-teller that the other person shall believe that the fortune-teller possesses the power.
In other words, because the law knows the accused is pretending, the law imputes an intention to pretend, thus criminalizing their behaviour.
A question remains: if the offense is supposed to encapsulate actual fraud, why is it punishable only on a summary conviction level? A hint may be found in Pollock, where Justice Orde recommended the suspension of the sentence based on the defendant’s good faith belief in her spiritual powers. However, a more troubling implication is also possible. The Code contains other sections which comprehensively prohibit fraud. Section 380(1) of the Code reads:
Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,
(a) is guilty of an indictable offense and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offense is a testamentary instrument or the value of the subject-matter of the offense exceeds five thousand dollars; or
(b) is guilty
(i) of an indictable offense and is liable to imprisonment for a term not exceeding two years, or
(ii) of an offense punishable on summary conviction,
where the value of the subject-matter of the offense does not exceed five thousand dollars.
In addition to this general prohibition of fraud, which captures all criminal activity under section 365, the Code also prohibits “uttering threats” against personal safety or property, which can be used where supernatural threats are made against a person. Section 365 is, at best, legally superfluous.
The fact that fraud involving high amounts of money can be prosecuted under section 380 of the Code means that the witchcraft section must have a different purpose, and a different ambit from the merely fraudulent. Even if rarely invoked, the section has a disciplinary effect: it is not about punishment, which cannot address large-scale fraud even as contemplated under section 365. Instead, the section is about keeping people who practice witchcraft, even in good faith, under societal power and discipline. In this context, the two divergent lines of cases on mens rea and actus reus, which continue into the Charter era, can be seen as a method of gendered, racialized, and religious social control.
The court in R v Larin convicted the accused, “Lady Tanagra”, despite the fact that she did not demand payment, and simply indicated to the police officer for whom she did a palm-reading that he could pay what he wanted. In Larin, the court interpreted the word “fraudulently” as inherent in any prohibition, but did not require proof of an intent to deceive or knowledge by the accused that their powers were false. In R v Dazenbrook, Justice McConnell held that the addition of the concept of fraud had added elements to the offense that did not exist under previous legislation. “The legislators, therefore, must have envisaged fortune-telling that is not fraudulent as being acceptable—legal. That is, the mere telling of a fortune,per se, is not illegal.” Justice McConnell held that the actus reus required the action to be undertaken “to delude or defraud” and acquitted the accused. On the face of it, this is a sensible reading, albeit superfluous given other provisions against fraud.
However, the courts could not let common sense reign for long. In the juvenile case of R v PS, Dazenbrook was essentially overruled when the court concluded that “while there must be an intent to deceive, in a limited sense, on the part of the accused, it is not necessary for the prosecution to show that the complainant was in fact deceived or misled.” The decision held that two defences were open to the accused, “that it was for amusement only or that she honestly believed that she had such powers.” The latter defence is questionable after Pollock, as the court held the essential deception was claiming to tell fortunes. As PS called no evidence, the trial judge ruled that a prima facie case had been made out and convicted the accused.
The confusion continues with the decision in R v Corbeil, where the Quebec Court of Appeal affirmed a conviction where the accused represented that she had special training in palm reading, and charged an undercover police officer ten dollars. The court found that the trial judge correctly understood that the transaction must be fraudulent. The court held that the act of palm-reading, the assertion that the reading would be effective, and payment met this standard. There is no evidence to suggest the accused’s belief was sincere, and the dated cases cited by the court suggest that it agreed with the view that claiming to know the future was inherently impossible and the mark of a charlatan.
The Supreme Court of Canada’s sole foray into section 365 was in the brief decision in R v Labrosse. The court upheld the conviction on the grounds that the trial judge did not believe the accused had an honest belief. The reasoning does not elaborate on whether fraudulently is implied by a lack of good-faith belief on the part of the accused, but does note that the trial judge read down the section to avoid mere amusements “as one often sees in tombolas or amusement parks.”
Justice Nasmith of the Ontario Provincial Court attempted to inject some sensitivity into the law in R v MKM, a prosecution under the generic fraud section of 380. Justice Nasmith noted the historic problems of the special provision before decrying that such thinking could also infect general provisions:
It is interesting that there is a special section in the Code under the heading “Pretending to Practice [sic] Witchcraft Etc.” under which all the cases relied on by counsel were decided… For the most part, I do not think it matters which Section is used. In either case, the Crown must now establish the elements of fraud beyond a reasonable doubt. In Canada telling fortunes has not been treated as inherently evil since 1955. The special section has a long history and is tainted with archaic thinking. In that sense, a general charge of fraud is refreshing. On the other hand, archaic remnants seem to have been brought into this prosecution anyway.
Elements of potential racial targeting were present as, “[t]he police officer was working on a ‘project’ which involved the ‘investigation of Gypsy families in Toronto’.” The judgment is worth quoting extensively for its compassionate and logical analysis:
[W]hy did [Parliament] stop [at decriminalization] with the introduction of money[?] Is this the line where amusement stops[?] Do we not pay money for many of our ‘amusements[?]’ Is it not very difficult to measure the extent to which there is an element of amusement, entertainment or curiosity in the mind of a customer who goes out to find this kind of a service[?] Are we not looking at an unnecessarily arbitrary line between an intention to amuse and an intention to defraud[?]
The last reported prosecution of pretending to practice witchcraft was in R v Turgeon, where fraudulently was defined as a sincere representation that the defendant’s power was real. That case, concerning a fortune-teller, also resulted in a conviction, upheld by the Quebec Court of Appeal. The status quo appears that any representation of supernatural power outside of dominant religious contexts will trigger prosecution and conviction. Unsurprisingly given the offense’s history, all of the cases that form the backbone of the jurisprudence prosecute women. Further, notwithstanding the paucity of jurisprudence, the use of undercover police resources and intensive judicial consideration raise the question of whether resources could be used more efficiently.
Few commentators would argue the law should not protect people from frauds perpetrated under threat of misfortune or promise of unattainable goals by a charlatan. However, the provision that differentiates this type of fraud from others is mired in historic oppression of women and religious minorities, and is not necessary to prosecute fraud. While there is a social good inherent in preventing fraud, the line between legitimate practices, such as religious prophecy or spiritualism, and illegitimate or criminal pretending seems arbitrarily drawn.
CURRENT PRACTICES OF WITCHCRAFT AND CONTRADICTORY STATE RECOGNITION
What is objectionable about section 365 is not that it targets fraud perpetrated in the name of faith, but that it does so without judging fraud impartially. One person’s “witchcraft” is another person’s religion. Prior to the early witch-hunts, witchcraft was understood as the religion of the country-folk. It revolved around pagan beliefs and rituals, dating back to hunting times and the Paleolithic caves. Women’s power and roles were central in this belief system. Within neo-pagan circles the term “witch” is viewed as an accolade that describes a person of power. “Witch” is derived from the Old English word wik, meaning to bend or shape. Thus witches are individuals who have learned the craft of bending or shaping reality. Adherents of witchcraft characterize their religion as a return to a pre-Christian, pan-European faith, where the earth or the worship of the Mother Goddess is revered.
The contemporary religion most associated with witchcraft, Wicca, has been described as “an anti-dogmatic, anti-authoritarian, diverse, decentralized, eclectic, experience-based, nature-oriented, religious movement whose followers…in some sense believe in, experience and/or invoke and/or worship the Mother Goddess and…her God-consort.” Wiccans are practitioners of Wicca, “a syncretistic reconstruction of naturebased witchcraft religion rendered public by Gerald B Gardner in England in the 1950s.” Wiccans can be polytheistic, animistic, or pantheistic. Witchcraft is a generic term covering numerous perspectives, as Wicca does not have a set of unified beliefs, dogmas, or a central institution. Wicca is considered a Pagan religion. Thus some Wiccans identify as both Wiccan and Pagan, while others use only the broader term Pagan to distance themselves from the popularity of Wicca or to signal an inclusion of other Pagan traditions. Some “contemporary witches claim identification with the witches who were persecuted in the early modern period, while others have been accused of performing similar deeds.” Starhawk, a well-known contemporary witch, states: “Witchcraft offers the model of a religion of poetry, not theology. It presents metaphors, not doctrines”.
Importantly, the women burned at the stake in medieval Europe did not openly identify as witches, but were accused of witchcraft. The charges against Persaud resemble the witch craze in that she was accused of practicing witchcraft for engaging in certain types of behaviour, though she did not self-identify as a witch. Section 365, even when not zealously enforced, may represent an ontological harm, and may have a potential chilling effect on the free practice of spiritual activity. As commentary on the Australian law of witchcraft notes, “if clear protections of religious liberty are not a part of the law, public pressure may be all that is needed to encourage law enforcement officials to proceed against persons thought to be witches.”
The continued criminalization of the pretense of witchcraft in the Code is at odds with the inclusion of Wiccans in the chaplaincy services of the Correctional Services of Canada. Since 1991, Wiccan chaplains have assisted prisoners in holding rituals such as sabbat observances and have provided consultation services to inmates and to other religious chaplains in order to foster a better sense of the faith and paths of Wiccans and Pagans. Three penitentiary institutions in Ontario also created a green patch of land next to the chapel where inmates have planted bulbs of flowers and conducted their sabbat rituals. One Wiccan chaplain said of her motivation to do this work:
It was simply a case of a body of Wiccans who seemed genuinely seeking a spiritual path, in…very difficult circumstances, and being aware that help was needed to continue visitation for them. I was semi-aware that getting recognition in a federal prison would add to public acceptance of Wicca as a valid faith — that was secondary at first.
The creation of these government services for Wiccans is in line with section 2(a) of the Charter of Rights and Freedoms, which guarantees everyone the fundamental freedom of conscience and religion. Such government services are also in accordance with provincial and federal human rights doctrines that call for the accommodation of religious beliefs and practices to the point of undue hardship. As per the Supreme Court of Canada, sincere individual belief with a nexus to religion garners Charter protection. This is in keeping with Wiccan decentralized traditions and the belief that each person has his or her own path to follow. Yet, the law remains skeptical of Wicca in ways it is not for “traditional” religions, and charges of witchcraft impact certain communities disproportionately.
This religious subjectivity can be seen in a different context in R v Welsh, where a police officer posed as an Obeah religious figure (an “Obeahman”) to gain a murder confession from two accused. The officer who set up the sting testified “that he thought that Obeah was not a religion but a form of witchcraft or voodoo and that he would not use a similar operation for an established religion.” Although the trial judge and Court of Appeal rejected this thinking, the defendants’ statements were not excluded, as the Court of Appeal asserted that:
[T]he consistent and dominant theme in the meetings between Leon and Ms. Robinson and the appellants was Leon’s claim to have power to control the police and the justice system. The ploys involving the dead crow and the ill officers were used to persuade the appellants that Leon could harm the police…there is no evidence that either appellant communicated with Leon to satisfy or fulfill some spiritual need or purpose. This situation is distinguishable from the hypothetical of a police officer posing as a priest and pretending to take a religiously motivated confession from a suspect. In that case, the communication would be religiously motivated and made to satisfy a spiritual need or purpose…The situation of a suspect who thinks he is speaking to a religious or spiritual figure for spiritual counselling or guidance is very different from that of a suspect who seeks assistance in thwarting the authorities.
It is an open question whether the court in Welsh would have condoned an undercover officer posing as a Christian minister claiming to have power to affect police investigations through prayer. However, the tone of the judgment suggests an implicit belief in the religious legitimacy of Christian confession and illegitimacy of Obeahan spiritual practices that purport to effect outcomes in the material world. R v Rowe presents a case with almost identical facts to those in Welsh, albeit the case involved a spiritualist who contacted the police. In each case, the courts appear to accord less respect to marginalized spiritual traditions than they would to mainstream religions.
CONSTITUTIONALITY OF SECTION 365
The only case that deals directly with the constitutionality of section 365 is R v Duarte. The appellant was charged with pretending to practice witchcraft under section 365(a) for charging two women $120 for herbs and services as a spiritualist. Clothilde Cabral brought her daughter Susanne to see Duarte in the hopes that he might be able to help her with problems she was having with her fiancé and an attempted suicide. Duarte did not terminate the sessions, but after four meetings, the Cabrals became disenchanted with his claims that he could assist. Once charged, Duarte argued that section 365(a) of the Code violated his freedom of religion and right to equality under sections 2(a) and 15 of the Charter. He was convicted at trial and appealed.
The Ontario District Court’s appellate analysis in this case does not accord with recent jurisprudence on freedom of religion and equality. As the accused was not required to prove that his treatments were effective or that he was honest, the court held there was no violation of freedom of religion. Instead, the Crown was required to prove dishonesty by demonstrating that the accused did not believe his treatments would be effective. While superficially attractive, the decision leaves the accused’s religious belief at the center of the provision. While the onus was properly placed with the Crown, the court was left to adjudicate the nature of religious belief. Today, pursuant to Amselem, Charter protection is granted where one’s beliefs are sincerely held, and then subject to any reasonable limits. The inquiry into sincerity must be as limited as possible to ensure only that the asserted belief is in good faith. “Otherwise, nothing short of a religious inquisition would be required to decipher the innermost beliefs of human beings.” This renders Duarte of limited jurisprudential assistance, and an up-to-date constitutional analysis of section 365 may be required. This is in accordance with the Supreme Court of Canada’s recent pronouncement that a law previously adjudicated “may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate”. The Supreme Court of Canada further noted that “stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional.”
On the question of section 15, the Duarte court held that since section 365 did not require the practitioner prove honest belief in his practice, the section was only a threat to the dishonest person. This analysis fails to consider that the blunt instrument of the criminal law only threatens the religion of witchcraft and that no other religious believers carry this burden. Whether one considers section 365 an example of direct targeting of a religion or an effects-based distinction, the implication for those who practice spiritual activities associated with witchcraft is clear. The law makes a distinction based on the enumerated ground of religion that has the effect of perpetuating disadvantage, and potential criminal prosecution, on the basis of stereotyping. Practitioners of witchcraft and fortune-telling are not free to practice or declare their religious beliefs without criminal scrutiny. The fact that section 365 is overwhelmingly deployed against women also suggests intersecting discrimination on the basis of sex and religion in the application of section 365. Arguably, sections 27 and 28, which protect “the multicultural heritage of Canadians”, and ensure that the rights and freedoms in the Charter “are guaranteed equally to male and female persons”, could be used to bolster an intersectional analysis that more readily captures the lived realities of many individuals, including women of minority faiths.
In considering a section 1 analysis under the Charter, the government’s objective for section 365 must be assessed. Given that the offense was transplanted into Canada from the early criminal laws of England, and thus was only tangentially approved by Canadian legislative bodies, the initial English purposes of the legislation must be acknowledged. Given the impugned provision specifically names witchcraft, the objective of section 365 seems plainly associated with the subjugation of women and religious dissent from the dominant Christian church.
Some have suggested that the offense of pretending to practice witchcraft has little to do with the occult and is principally concerned with protecting vulnerable people from con artists posing as fortune-tellers who fabricate mystical powers. Arguably, such a purpose for section 365 is a shift from its original enactment, and shifting purposes are prohibited. However, the court may accept such a purpose with the 1950s amendment of section 365 that added the word “fraudulently” to the offense. Even if a rational link between the objective and the offense is found, the offense is not minimally impairing, given fraud offenses already exist to better protect the vulnerable from being misled. Finally, when the deleterious effects are balanced against the salutary effects of the impugned legislation, the impact of the limit on religious practice is disproportionate. The public benefit gained by the criminalization of witchcraft is minimal given that section 380 of the Code exists and offers more flexibility to prosecutors as a hybrid offense that addresses the loss of property or money through deceit, falsehood, or other fraudulent means. By contrast, the effect of the provision on minority religious groups is stark, harkening back to the days of overt religious and gendered persecution by threatening criminal prosecution for legitimate activity.