Calling Houdini

Some of you have probably seen this news(?) item, already.

The headline is “Canadian charged with sham witchcraft“.

Excerpts from the article:

A Canadian woman is to appear in court on Christmas Eve for posing as a witch in order to defraud a grieving Toronto lawyer in a case that invokes a century-old law, police said Thursday.

The bogus witching law was enacted in 1892 when witchcraft was no longer a punishable offense in Canada, but fears persisted that it could be used as a cover for fraud.

It makes it illegal for anyone to fraudulently pretend to exercise witchcraft or sorcery or enchantment.

[the accused] is now in custody awaiting trial, after being denied bail last month.

The text section under which she was charged is:

Criminal Code, R.S.C. 1985, c. C-46
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 she vanishes from her cell while it is locked, will that be sufficient disproof of fraud?

The Crown is going to have to prove she was “fraudulently pretending” to exercise a power she does not have? Curious minds want to know how the Crown plans to prove that. She can’t be forced to testify. Is the Crown going to call expert evidence? Is there circumstantial evidence upon which the judge could convict? The article refers to failed business ventures. But that could just be the economy.

I guess dunking is the equivalent of a lie detector test. So, if she agrees to dunking, and floats, that’s proof she’s a witch. Too bad it won’t be admissible.

I can figure out what the actus reus might be. (Cue the Macbeth scene.) But what’s the mens rea if she honestly believes she’s Samantha Stevens?

There’s a reported case, from Ontario, about 35 years ago: R. v. Dazenbrook 1975 CarswellOnt 1022, 23 C.C.C. (2d) 252 (Ont. Prov. Ct.) The charge was witchcraft and fortune telling. The judge held that the Crown must prove that fortunes told with intent to delude or defraud others.

The reasons for the case indicate there were older cases. But, these were before the legislation was amended to add “fraudenlently”. The accused was acquitted. The judge wrote, in part:

7. All these cases were decided prior to 1954 and the amendment to the Code. In 1954 the section dealing with fortunetelling was amended to the present wording in s. 308.

8. The major change was the addition of the word “fraudulently.” 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.

9. The prior cases were clearly decided on the act of the telling of the fortune, and I am not aware of any decided cases subsequent to the amendment to the Code.

10. Notwithstanding, I find the Marcott case sets out the reasoning that should be followed in fortune-telling cases. I refer in part to what has already been referred to above.

…there must be evidence upon which it may be reasonably found that the accused was asserting or representing that he had the power to tell fortunes, with intent that his assertion or representation should be believed and with intent to delude or defraud others.

11. In the case before the Court, the accused advertised that she told fortunes and charged for such services. She implied that she had the power to tell fortunes, and probably expected her assertions or representations should be believed but, it has not been shown she told fortunes with intent to delude or defraud others. In other words, it has not been shown in this case that she fraudulently undertook for consideration to tell the officer’s fortune. For this reason the charge is dismissed. Mrs. Dazenbrook, you are free to go.

Someone alert Christie Blatchford. This one could use her wit.