Codification can be a wonderful thing. It helps consolidate all of the myriad of rules and exceptions that exist in the common law, and lays it out in one place for everyone to find.
But codification also has its drawbacks. Once enshrined in statute, there can be a tendency towards complacency.
The best example of this of course would be the Criminal Code of Canada. First enacted in 1892, it was modeled after a proposed a codification in Britain written by James Fitzjames Stephen, which never made it past Second Reading there. The reason for its codification was that John A. Macdonald was insistent that criminal law be included in s. 91 of the BNA Act, and that there be consistency across the nation for criminal laws.
Of course the Code has changed since then, including a significant reform in 1955, reducing the number of sections from 1,100 to 753. The greatest impact on the Code though has been in the advent of the Charter, which under s. 24 and in conjunction with section 52 of the Constitution Act, has resulted in the striking down, suspending the declaration of invalidity, reading in and reading down of innumerable provisions.
The Hon. Marc Rosenberg stated in 2009, on the 25th anniversary of the Charter,
Arguably, the impact of the Canadian Charter of Rights and Freedoms is most visible in the field of criminal law. It has changed the way crime is investigated in this country. It has changed the way offences are prosecuted. It has changed the way that criminal law is practised. And, it has changed the way that due process is valued in society.
Although the impact of the Charter on the criminal law does not lend itself to easy quantification, the volume of Charter motions which pass before trial judges on a daily basis illustrates its reach. Charter motions can dominate the simplest of criminal cases as well as the most serious…
The only problem with a constitutional challenge is that the charges typically need to be laid for a party to bring a Charter motion. Earlier this year, Alysha Hasham of the Toronto Star made reference to the “fake news” provision under s. 181 the Code, which was successfully struck down in 1992 under R. v. Zundel,
You wouldn’t know that, however, from the publicly available version of the Criminal Code on the government website.
“It doesn’t take much to think it’s kind of outrageous, that the government would say: ‘Here is the law of the land. Go look it up. Here online is the Government of Canada website saying the criminal law of Canada.’ And it’s wrong,” said Steve Coughlan, a criminal law professor at the Schulich School of Law at Dalhousie University in Halifax.
Also still listed as offences: abortion, duelling, making and selling comic books that show crimes being committed, advertising Viagra, blasphemous libel and pretending to practise witchcraft.
Fortunately, last month the federal government introduced the much needed Bill C-39 to help repeal many of these provisions.
For now, the witchcraft provision is not included. It states the following,
Pretending to practise witchcraft, etc.
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.
If someone does not pretend to use witchcraft or sorcery, and actually does use it, they apparently should have nothing to fear. At least not from the Code.
It might seem absurd, but this provision is still tossed around from time to time. The only case to challenge its constitutionality of this provision was in R. v. Duarte,  O.J. No. 690. District Court Judge rejected an appeal of a conviction on the basis of a violation of ss. 2(a) and 15(1) of the Charter,
I do not accept the appellant’s argument that section 365(a) of the Criminal Code is a breach of section 15 the Charter. Section 365(a) does not put the burden on the practitioner to prove he honestly believes what he practices, rather any threat is to the dishonest person who pretends belief in these matters and that is not a threat to freedom of religion.
It is the appellant’s position that the accused was denied his rights under section 2(a) of the Charter because he was required to establish the honesty of his belief and according to the appellant, that is a breach of religious freedom. As I have set out, I am not persuaded that the accused’s Charter rights were breached. There was no obligation or onus on the accused to testify, the burden was always upon the Crown to prove dishonesty, not upon the accused to prove the honesty of his religious or spiritual beliefs.
There are some reasonable limits to even honestly-held Wiccan beliefs in Canadian law. In R. v. Appleby,  A.J. No. 849, the accused was charged with carrying a concealed weapon, contrary to s. 89 of the Code. Provincial Court Justice Laven summarized the facts and the accused’s defence as follows,
The knife was a pointed and fairly sharp double edged dagger type knife – about 9 inches in overall length – divided 1/2 and 1/2 by blade and unfinished handle. The knife and sheath are set out as Exhibit No. 1 in the trial.
The accused stated that:
…”the knife is as much a part of me as my arm is. It’s an integral part of my belief structure, and its’s a part of my life. I use it for magical reasons…I also use it for cutting string.”
The accused stated his belief system, or religion, is The Craft – a Celtic version of the Goddess or mystery religion.
“I was born a witch and follow ‘Wicca’. Wicca is a group of people who worship the Goddess and the gods and who have been hiding out for the last three or four hundred years because they were getting burnt at the stake and boiled in oil”.
Wicca, therefore, he stated, has been an underground religion.
“My family is descended from some of the people who didn’t get burnt at the stake.”
The accused stated the knife was a phallic symbol and Wicca is a fertility religion.
“The knife grows with the person. I was working on it, sharpening it, and was going to put the traditional white handle on it. Sometimes I sleep with it on.”
The accused admits his use of drugs is part of his religious or belief system — because they (drugs) do exist. He stated that all modern pharmaceutical drugs have their basis in the herbs that the midwives were using. The midwives were the witches, or supposedly the witches, at that time:
“He believes in the writings set out in ‘The Book of Shadows’, I’m not a traditional witch, but I am an integral part of their (Wicca) religion.”
Justice Laven rejected this defence, and the Charter arguments that went along with it,
I find it totally ludicrous and simply untenable that the accused, a self confessed witch and a deliberate drug user and substance abuser who takes drugs and conceals a dangerous weapon for the purposes of, or under veil or guise, of his beliefs, religious or otherwise, in the occult, magic, mystery and the craft of Wicca should for those reasons and under such circumstances, have a right or privilege so to do.
I also find that any comparison by the accused of his right or privilege in his drugged and halluncinogenous (sic) condition to carry concealed on his person a pointed, sharp, double edged dagger – in comparison to the right or privilege of a Sikh to carry a Kirpan is merely absurd and entirely derisive.
Further, exclusion of evidence under Section 24(2) of the said Charter would discredit the Charter – and place at risk the religious freedoms which it guarantees – rather than protecting them.
But what of the honestly-believing witch or sorcerer who doesn’t carry sharp knives why under the influence of hallucinogens? Must they have to prove their magic to an officer in question to escape s. 365?
Natasha Bakht and Jordan Palmer point out in a 2015 journal article in the Windsor Review of Legal and Social Issues, that the Supreme Court’s decisions in R. v. Kapp and Syndicat Northcrest v. Amselem, and subsequent jurisprudence, likely make the analysis in Duarte obsolete.
They note that the last reported conviction under this provision was in R. c. Turgeon,  J.Q. no 523, which was upheld by the Quebec Court of Appeal (leave to appeal to SCC refused). Charges in more recent cases, in 2009 and 2013, were dropped when the accused plead guilty to more serious offences, or made a full restitution.
Just over a week ago, Toronto police pressed charges against “Master Raghav,” also known as Murali Muthyalu, for witchcraft, extortion and fraud. He had apparently advertised as an astrologer and psychic, and charged a local resident $101,000 to remove an evil spirit.
Because the onus is still on the Crown to prove this provision beyond a reasonable doubt, they would have to demonstrate that Master Raghav did not in fact remove an evil spirit. If the Master was my client, I’d suggest that in this instance he not take the stand, and let the Crown make their case.
Perhaps I would ask for his astrological assistance in scheduling, and ask him to predict the outcome of the case. Subject solicitor-client privilege, of course.
Then again, I might wonder why he didn’t predict the police coming in the first place.
Bakht and Palmer conclude,
The witchcraft offense in Canada, and its continued primary application to women and vulnerable groups, reveals problematic views about spirituality and the scope of Charter-protected religion. The harm is compounded by the provision’s superfluous character: other Canadian criminal prohibitions of fraud prevent any religious or spiritual tradition being used to defraud.
Canada is a pluralistic society” and this mindless fossil from a Victorian-era past should be recognized as the “historical quirk” that it is: “a section of the Canadian [Criminal Code] that carries a hint of the Dark Ages.” Other similar jurisdictions have rid themselves of this antiquated offense. Canada should follow suit with the repeal of section 365 to ensure human rights, religious freedom, and gender equality are respected.