Bad Religion and Bad Business: The History of the Canadian Witchcraft Provision

Abstract

Witchcraft is a fascinating subject on which many volumes continue to be published. But not in Canada. This article stands in contrast to earlier Canadian pieces on witchcraft whose primary goals were to prove that the witchcraft provision marginalized women and to encourage legislators to repeal it. Parliament finally repealed the Canadian witchcraft prohibition in 2018. The moment is thus ripe to ask how—and why—this legislative oddity migrated from England into Canada. The first section of the paper considers the religious origins of the witchcraft prohibition in England and how it made its way into the Canadian Criminal Code. The second section explores how the prohibition evolved from one against unwanted spiritual practices to one against unwanted economic practices. The last section of the paper considers how witchcraft morphed into a viable Charter defence based on freedom of religion and why the prohibition against it was eventually repealed. In conclusion, the article reflects on the peculiar trajectory of witchcraft in Canada and what it might suggest not only about Canadian criminal law, but also about broader Canadian society.

Résumé

La sorcellerie est un sujet fascinant sur lequel de nombreux travaux continuent d’être publiés. Au Canada, ce sujet n’a toutefois pas fait l’objet de publications récentes. De ce fait, cet article se distingue des articles canadiens plus anciens sur la sorcellerie; articles dont les principaux objectifs étaient de prouver que la disposition sur la sorcellerie marginalisait les femmes et d’encourager plus largement les législateurs à abroger cette disposition. Le Parlement a finalement abrogé l’interdiction de la sorcellerie au Canada en 2018. Le moment est donc venu de se demander comment – et pourquoi – cette bizarrerie législative avait migré de l’Angleterre vers le Canada. Pour y arriver, la premiére section de l’article examine les origines religieuses de l’interdiction de la sorcellerie en Angleterre et la façon dont elle avait été introduite dans le Code criminel canadien. La deuxiéme section étudie l’évolution de l’interdiction qui avait muté d’une interdiction contre les pratiques spirituelles indésirables à une interdiction contre les pratiques économiques indésirables. La derniére section de l’article examine comment la sorcellerie s’était transformée en un moyen de défense constitutionnel fondé sur la liberté de religion et pourquoi l’interdiction qui la concernait a finalement été abrogée. En conclusion, l’article propose une série de réflexions sur la trajectoire particuliére de la sorcellerie au Canada et sur les constats qu’elle peut révéler sur le droit criminel canadien et plus largement sur la société canadienne dans son ensemble.

You shall not suffer a witch to live. (Exodus 22:18 ¹)

Canada is a pluralistic society. (Reference re Same-Sex Marriage, 2004 SCC 79, para 22)

I. Introduction

Anyone researching the subject of witchcraft in Canada will immediately be struck by how little has been written on Canada’s 130-year prohibition against practising witchcraft—a prohibition that stayed in the Criminal Code until 2018. This dearth of Canadian publications stands in stark contrast to the myriad volumes and treatises published elsewhere with names such as Witchcraft and Magic in Europe, ² six volumes of English Witchcraft, 1560–1736, ³ and the thirty-two essays in The Oxford Handbook of Witchcraft in Early Modern Europe and Colonial America. ⁴ Another book came out in August 2021 dealing with witchcraft specifically in the little English town of Bideford in the 1670s and 1680s. ⁵ There are many more titles like these for different times and places the world over. But not in Canada.

The only other article published in a Canadian law journal on the topic of witchcraft is a 2015 article by Natasha Bakht and Jordan Palmer called “Modern Law, Modern Hammers: Canada’s Witchcraft Provision as an Image of Persecution.” ⁶ This helpful and instructive article addresses the misogynistic application of witchcraft prohibitions in England and in Canada. There are also two other short web articles. Both are advocacy pieces similar to Bakht and Palmer’s calling on Parliament to repeal the provision and denouncing the misogynistic application of Canada’s witchcraft prohibition—one written by Omar Ha-Redeye ⁷ and the second by Kristy Isert. ⁸ But there are no articles or books that focus on how—and why—the prohibition evolved, start to finish, from England into Canada.

This article seeks to fill that gap. As with the rest of criminal law, the story of witchcraft in Canada is the story of social ills. The first social ill that prohibitions against practising witchcraft—including the prohibition that would eventually make it into Canada—tried to address was bad religion, that is, unwanted spiritual practices or perceived spiritual evil. The second social ill was the one that kept witchcraft in the Criminal Code for so many years, even though the fear of actual witches had all but disappeared in Canadian society: fraud, or bad business. Preventing bad religion and, later, bad business was the goal of the legislative prohibition against witchcraft and of the courts applying it. But it was a slow evolution from one to the other—an evolution that would, in the end, bring the witchcraft provision back into the realm of the religious as a viable Charter defence. This article tells the story of this evolution.

However, as we will see, there was also another, hidden social ill that it would take early writers such as William Blackstone, the eponymous author of the well-known legal treatise, and James Crankshaw, editor of one of the first annotated Canadian Criminal Codes, and, much later, several (feminist) authors to point out: the fact that this prohibition was disproportionately applied to women living on the margins of society, particularly in the early, religious phase of its development. The Bakht and Palmer article, as well as the two short web articles dealing with witchcraft in Canada, are all of this variety. In contrast, the present article takes aim not at the application of the provision, but rather at its intent. The article tries to explain why people might have enacted such a prohibition in the first place and why this historical oddity remained law in Canada until 2018. It is a story first of bad religion and second of bad business.

But we must first define witchcraft. It has been said that the term witchcraft is an “unwieldy mass” ⁹: a catch-all that the Oxford English Dictionary defines as “[m]agic or other supernatural practices; (the use of) magical or supernatural powers, esp. for evil purposes or as used by witches.” ¹⁰ As the dictionary suggests, there seem to be two essential elements to the word: (i) a belief in invisible forces; and (ii) that those forces are used for evil purposes. ¹¹ As we explore the topic of witchcraft, we will call any formal prohibition against practising witchcraft a witchcraft provision or witchcraft prohibition because the reference information for the specific prohibitions changes with time and place, but the essence remains stopping sorcery in its tracks.

By tracing legislative prohibitions back in time and by looking at books, parliamentary debates, academic and news articles, as well as case law and annotated criminal codes in both French and English, this article follows witchcraft from England into Canada until the Canadian prohibition against it was repealed in 2018. The article deduces from this research two lenses through which to view the Canadian prohibition against witchcraft. The first lens is religious, hence “bad religion” in the title, and the second is economic, hence “bad business.”

The author’s interest in the topic of witchcraft is twofold: in his first-year criminal law class, several years ago now, he was made to read aloud Canada’s prohibition against witchcraft. He was shocked that something like that existed in Canada and laughed himself to tears while reading it. However, in the preface to her informative book, European Magic and Witchcraft: A Reader, Martha Rampton says that these kinds of snap judgements do not allow one to empathize with the people of the past. We may laugh, sure, but we must also ask why.

In an eloquent expression of the principle of charity, Rampton reminds us that the people who enacted and applied these laws, as much as those who argued against them, are like us in their “desire to be safe, to see justice done, and to make sense of their existence.” ¹² So, although we may laugh at the idea of witchcraft or reject prohibitions against it out of hand for being misogynistic, irrational, or religiously intolerant, the principle of charity would dictate that we assume that the people enacting, applying, and suffering under these laws were intelligent, well-meaning individuals who simply had a different understanding of the world.

II. The Early Years

In some way or another, witchcraft as a spiritual practice has been outlawed in Europe since the early Middle Ages. ¹³ The earliest English prohibition dates back to Henry VIII in 1541. ¹⁴ To appease people in her royal entourage, in 1562, Queen Elizabeth I—though not personally bothered by witches—enacted a moralizing prohibition against “any Invocacõns or Conjuracõns of evill and wicked Spirites” on pain of death. ¹⁵ But it was during the 1640s that the witch craze in England reached its peak. ¹⁶

The statute invoked during this time was King James’s 1604 law, An Acte against Conjuration Witchcrafte and dealinge with evill and wicked Spirits, ¹⁷ which put the quasi-spiritual, moralizing adjectives evil and wicked in the title of the statute, not just in the body, and “tighten[ed] the noose around the neck of any poor wretch who might formerly have escaped.” ¹⁸ Sir James Fitzjames Stephen—a man whose writings later influenced the drafters of the Canadian Criminal Code ¹⁹—wrote in 1883 that, by the time King James I had enacted this law in 1604, witchcraft had come to be regarded with “special horror” and to be believed in with an “ardour and eagerness” that were “a natural result of religious excitement.” ²⁰ In essence, the word witchcraft came to denote spiritual and occult practices that drew religious ire or that did not otherwise fit the dominant religious mould. ²¹

The last English conviction for witchcraft was in Hertfordshire in 1712, after which the religious zeal against witchcraft seemed to die out. ²² In the years following, witch prosecutions became so rare in fact that, when a bill repealing England and Scotland’s various witch laws was introduced into the English Parliament in 1736, many members of Parliament laughed at the mere mention of witchcraft. ²³ The bill eventually passed. The goal of the law was not only to repeal the earlier laws on the books, but also to better punish anyone “pretend[ing] to exercise or use any Kind of Witchcraft, Sorcery, Inchantment or Conjuration … undertak[ing] to tell Fortunes, or pretend[ing] from his or her Skill or knowledge in any occult or crafty Science.” Following the “wise example of Louis XIV in France,” ²⁴ the English Witchcraft Act (1736) was eventually passed, making prosecuting witchcraft per se illegal, but still allowing the prosecution of anyone pretending to practise witchcraft. ²⁵

One could imagine that the reason for eliminating the actual practice of witchcraft from the statute, and leaving only pretending to practise it, is that British parliamentarians thought that all forms of witchcraft were, in fact, pretending. In other words, no form of supposed witchcraft was ever actually witchcraft because no such thing existed. This language of “pretending to practice witchcraft” would remain on the books in England and eventually be copied almost verbatim into the Canadian Criminal Code.

III. La Corriveau, Sorcery, and the Canadian Criminal Code

Any discussion of witchcraft in Canada and the Witchcraft Act (1736) would be incomplete without mentioning La Corriveau. In a way, the story of La Corriveau, though not her actual murder trial, provides a cultural backdrop for the statute and its importation into the Province of Canada—a window into what people at the time might have been willing to believe. At the very least, it sheds light on the narrative appetite of some Canadians in the nineteenth century. But the true story of Marie-Josephte Corriveau, or “La Corriveau” as she is better known in Quebec, starts over a century earlier when Marie-Josephte was born in 1733 near modern-day Lévis, across the Saint Lawrence from Quebec City. ²⁶

After the death of Corriveau’s second husband, Louis Étienne Dodier, in April 1763—only two months after New France was formally ceded to the British—the governing British military charged her (along with her father) with Dodier’s murder. ²⁷ Marie-Josephte and her father were both convicted but, the night before his execution, her father declared that he had only helped Marie-Josephte move the body and that she alone had killed her husband. ²⁸ Faced with this and other incriminating evidence, Marie-Josephte then admitted killing her husband with two hatchet blows for physically abusing her. ²⁹ A British court-martial then sentenced La Corriveau to hang until death in an iron cage specifically smithed for the dimensions of her body.

The cage used in the execution of La Corriveau would become significant in how she is remembered in Quebec. Although La Corriveau was not charged with pretending to practice witchcraft under the Witchcraft Act (1736), once the iron cage used in her execution was unearthed in the church cemetery of Saint-Joseph-de-la-Pointe-Lévy (now part of Lévis, Quebec) in 1851, nearly one hundred years after her execution, myths and legends about La Corriveau began to overshadow the facts of her case.

Her story would eventually take on a life of its own and, before long, legends of all sorts about La Corriveau—and, notably, tales of witchcraft—would appear in novels, art, theatre, and folklore. ³⁰ For example, in a novel published in 1863, author Philippe Aubert de Gaspé used his poetic licence to describe how La Corriveau, having already been dead for some time and serving a 4,000-year sentence in purgatory, took swipes at passersby while suspended in her cage and pleaded with them to take her to a witches’ Sabbath and a Will-o’-the-whisp—according to the novel, two ceremonies frequently attended by witches—at the Îsle d’Orléans just outside of Quebec City. ³¹ The legend of La Corriveau, though not the factual account of Marie-Josephte Corriveau, gives us a sense of what the social context surrounding the Witchcraft Act (1736) might have looked like in the mid-nineteenth century, at least in Quebec.

However, it was in the province of Ontario that the Witchcraft Act (1736) was first applied in a Canadian court of law, rather than in the court of public opinion. In 1890, in a case called R. v. Milford, ³² the Ontario High Court of Justice (the section 96 superior court at the time) held that the British Witchcraft Act (1736) applied in Canada by virtue of An Act for the Further Introduction of the Criminal Law of England into this Province ³³ and that, under English criminal law as it was in 1792, simply pretending to tell fortunes still constituted an offence.

Given that the question of law in this appeal was relatively narrow, it is difficult to discern from Chief Justice John Douglas Armour’s laconic reasons whether bad religion or bad business motivated the court to apply the old English statute, or the court was simply content to answer the narrow question of law without addressing the raison d’être of the statute. Chief Justice Armour also did not address the fact that the English Witchcraft Act (1736) had, for many years, rarely been used in England and the fact that the Vagrancy Act (1824) ³⁴ had all but made the Witchcraft Act (1736) redundant by preventing anyone from “pretending or professing to tell Fortunes, or using any subtle Craft, … by Palmistry or otherwise, to deceive any of His Majesty’s Subjects.” ³⁵ Witchcraft, it seemed, was illegal in the Dominion of Canada as a matter of course.

Ironically, the very same year in which courts brought the British witchcraft prohibition into Canada in R. v. Milford—in 1890—George Wheelock Burbidge, one of the influential voices in drafting the Criminal Code, opined that “it is doubtful whether or not the [English] Act on which it [the witchcraft article] is founded would be held to apply to Canada.” ³⁶ This is doubly so because, under the newly imported Witchcraft Act (1736), pretending to practise witchcraft in Canada could still be punished by death. The author of an undated news article from the Montreal Star ³⁷, cited in likely the first annotated Criminal Code of Canada ³⁸, reasoned that “[w]hen we remember that a similar heroic treatment [the death penalty] was applied in the case of sheep stealing, we are inclined to look for authority elsewhere than in obsolete [English] statutes.” ³⁹

Bristling at the illegal-as-a-matter-of-course approach adopted in R. v. Milford, the Montreal Star article heralds that, when legislators “return to the light of the present day, after their explorations in the catacombs of precedent,” they will see that the fortune-telling under false pretenses is already “punishable at common law” and under the Vagrancy Act (1824), which punishes all “rogues and vagabonds.” ⁴⁰ The author of the article concludes presciently by claiming that relying on the Vagrancy Act (1824) instead of the Witchcraft Act (1736) is “better calculated to subserve the interests of justice than the revival of the old statutes against witchcraft, against which both humanity and enlightenment revolt.” ⁴¹

Clearly approving of this view, James Crankshaw then closes his 1893 annotation of section 396 by saying that, under the old witchcraft laws, “many poor wretches were sacrificed to the prejudices of their neighbors, and their own illusions.” ⁴² Crankshaw’s complaint about how the provision was applied echoes that made over a century later by authors such as Omar Ha-Redeye, Kristy Isert, Natasha Bakht, and Jordan Palmer, who would on this basis encourage the Parliament of Canada to repeal it. Nevertheless, the legislator does not speak in vain, and the Dominion legislators presumably kept the arguably redundant Witchcraft Act (1736) around because they in fact saw an important difference between the “idle and disorderly persons” telling fortunes under the Vagrancy Act (1824) and those doing so under the pretence of witchcraft. ⁴³

In 1893, not long after R. v. Milford in 1890, the Parliament of Canada adopted the Criminal Code of Canada ⁴⁴ based on the common law, existing legislation, Sir James F. Stephen’s Digest of the Criminal Law, ⁴⁵ George Wheelock Burbidge’s Digest of the Criminal Law of Canada, ⁴⁶ and the English Draft Code of 1878. ⁴⁷ Like the rest of the Criminal Code, the Canadian Parliament imported the provision against witchcraft—section 396 at the time—almost verbatim from section 258 of the English Draft Code, 1878, which was never actually adopted in England. ⁴⁸ At the time at which it was imported, the provision read:

396. Every one is guilty of an indictable offence and liable to one year’s imprisonment who pretends to exercise or use any kind of witchcraft, sorcery, enchantment or conjuration, or undertakes to tell fortunes, or pretends from his skill or knowledge in any occult or crafty science, to discover where or in what manner any goods or chattels supposed to have been stolen or lost may be found. ⁴⁹

IV. From Sorcery to Fraud

The early witchcraft prohibitions were originally enacted to deal with unwanted spiritual practices, or bad religion. Given how little the Witchcraft Act (1736) was applied and the laughter of British parliamentarians when the subject was brought up in 1735, one can infer that bad religion was less of a serious concern by the time that the statute made its way into the Canadian Criminal Code. Indeed, by the turn of the twentieth century, the focus of lawmakers had apparently shifted from England and Scotland’s concern with preventing devil worship—the biggest preoccupation for the likes of King James I ⁵⁰—to the bad business of defrauding people. We can see this shift in attitudes in the Canadian case law that applied the provision.

The Ontario Court of Appeal decided the first witchcraft case under the brand-new Criminal Code: R. v. Marcott (1901). ⁵¹ The court in R. v. Marcott was at pains to distinguish unlawful fortune-telling from the kind commonly done at fairs. ⁵² One can imagine that this was to distinguish the entertainment afforded to patrons by temporarily suspending their disbelief for a modest sum from the fraudulent hoodwinking of the particularly credulous for more significant amounts of money. In Marcott, the main issue was how to define the word undertaking in the Criminal Code provision that prohibited “undertak[ing], for a consideration, to tell fortunes.” ⁵³ This discussion shows us how contractual consideration—the service of fortune-telling in exchange for money—had become the primary concern, rather than illicit spiritual practices. Nevertheless, the concurring judges still felt the need to point out that “undertaking to tell fortunes” simply meant professing a power or ability to tell fortunes, something that “no sane man can believe” because the accused “must know that he has no such powers.” ⁵⁴

We again see the focus shift towards bad business, rather than bad religion, in two early Ontario cases. In R. v. Monsell (1916), ⁵⁵ the Ontario Court of Appeal applied R. v. Marcott and held that, while intent to defraud must be shown, it is not necessary to show that the accused succeeded in defrauding the client. In R. v. Pollock (1920), ⁵⁶ the Ontario Court of Appeal once again considered the peculiar history of the witchcraft provision and its “unusual terms” with reference to the English Witchcraft Act (1736). The court clarified that, although there is no law that prevents an accused “from communicating with departed spirits”—an interpretation with which King James I might well have disagreed—the witchcraft provision “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” and, echoing the reasoning in R. v. Marcott, that deception is “necessarily inherent in claiming the power to tell fortunes.” ⁵⁷ As with many other fortune-telling cases, the court gives no explanation as to why people cannot tell fortunes.

Justice Boyd McBride took this reasoning a step further in R. v. Stanley (1952), ⁵⁸ which took place in Edmonton, Alberta. Helen Stanley had clients sign a consent agreement saying that she would read palms “in accordance with the books on the subject.” ⁵⁹ She had even gotten a business licence from the municipality to engage in palm-reading. However, on behalf of the Supreme Court of Alberta (the province’s section 96 court), Justice McBride held that one cannot have a permit for something that is a crime. He went on, writing that telling fortunes amounted to “hoodwinking some who are credulous or ignorant” and that, whether it is reading cards, tea leaves, lines in the hand, or “a sort of pseudo-science which I think is called astrology,” conviction under this provision does not in fact turn on the technique being used. ⁶⁰

Not long after this case, the Parliament of Canada started to revise the Criminal Code. Parliamentary debates heated up around the witchcraft provision in early 1953. The Canadian Association for Civil Liberties claimed that the witchcraft provision “would be materially improved if the word ‘fraudulent’ was added to make it an essential element of the offence.” ⁶¹ This important addition further suggests the fundamental shift from bad religion to bad business. The shift was confirmed on 26 February 1954, when, while being criticized for the provision in the House of Commons, then Minister of Justice, Stuart Garson, retorted that the goal of the provision is “not witchcraft in the old sense” and that fraud was “the gravamen of the offence.” ⁶² He clarified that “it is not a case of witchcraft or no witchcraft; it is a case of fraud or no fraud.” ⁶³ The version of the provision that came into force on 1 April 1955 reads ⁶⁴:

308. Everyone who fraudulently

1. (a) pretends to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration, etc.

2. (b) undertakes, for a consideration, to tell fortunes, or

3. (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. ⁶⁵

Tellingly, although one minister had (helpfully) argued that leaving the word witchcraft in the heading “would help a student or a lawyer find this [provision] more easily,” ⁶⁶ the word was ultimately dropped from the heading. This subtraction, the addition of the adverb fraudulently, and the division of the provision into separate paragraphs can all tell us something about the priorities of lawmakers and the shifting importance of pretending to practise witchcraft (para (a)) in the old sense as opposed to dishonest fortune-telling (para (b)). After 1955, convictions under the witchcraft provision would, with few exceptions, happen under paragraph (b), which prohibits fortune-telling, rather than paragraph (a), which explicitly prohibits witchcraft, sorcery, enchantment, and conjuration. Indeed, paragraph (b) against fortune-telling had become so important that one of the last annotated criminal codes discussing the witchcraft provision only listed jurisprudence under this paragraph, entirely omitting the other two. ⁶⁷

V. Fraudulent Intent vs. Strict Liability: the Moving Target

With its 1955 revisions to the provision, Parliament somewhat belatedly endorsed the shift from bad religion to bad business that had long since occurred before the courts. But the word fraudulent in the revised provision was not without its difficulties. The main hitch was that the new word seemed contrary to what the common law had long ago established in cases such as R. v. Marcott, R. v. Pollock, and R. v. Stanley, in which the offence was made out once the prosecution proved the simple act of telling fortunes, irrespective of what the fortune-teller in fact believed or intended. Witchcraft was previously treated as an offence of strict liability. Now, in theory, the revision meant that the prosecution had to also prove fraudulent intent.

By the time the first witchcraft prosecution under the revised provision made it to the Montreal Municipal Court in 1974, the Ontario Court of Appeal had already established that, elsewhere in the Criminal Code, the word fraudulently denoted conduct that was not simply unauthorized, but rather “dishonest and morally wrong.” ⁶⁸ In the 1974 case before the Municipal Court, R. c. Larin, ⁶⁹ the accused, Denise Larin, had not expressly asked for consideration for a palm reading, but she had hinted that people typically leave $5. ⁷⁰

The main issue at trial was whether or not the defendant fraudulently told someone’s fortune. ⁷¹ Brushing aside the old cases that treated witchcraft as a strict-liability offence, the Municipal Court concluded that these cases were in fact decided “as if the word fraudulently were included in the section.” ⁷² It found the accused guilty right before asking rhetorically: “why invite strangers into one’s home to tell their fortunes if it’s not with the intention of receiving consideration!” ⁷³

One year later, in 1975, the word fraudulently was considered in Ontario for the first time in R. v. Dazenbrook. ⁷⁴ Relying on R. v. Marcott and making no mention of Quebec’s R. c. Larin, Justice McConnell held that the “mere telling of a fortune, per se, is not illegal.” ⁷⁵ Unlike the court in R. c. Larin, Justice McConnell clarified that, while simply telling a fortune was enough to infer intent before the legislative revision, now, the prosecution had to show the intent “to delude or defraud” ⁷⁶ and, because the prosecution had not done so in the case at bar, the court acquitted the accused. ⁷⁷

Although the section numbers had shifted over the years, the wording of the provision remained the same as it was in 1955. In 1977, in R. v. P.S., ⁷⁸ the Ontario Provincial Court essentially overruled Dazenbrook. In R. v. P.S., the youth printed leaflets in which she claimed to have a “spiritual power [that] is a gift of God!” and that “[t]here’s no problem so great she can’t solve.” ⁷⁹ Although Justice Kechin Wang held that the facts in R. v. P.S. were similar to those in R. v. Dazenbrook, he found that, once the Crown had made a prima facie case that the accused had foretold the future for consideration, then the accused had to rebut the presumption that her foretelling was deceptive. ⁸⁰ In other words, she had to prove that her claim to be able to predict the future was not fraudulent. And, because the accused in R. v. P.S. did not rebut that presumption, she was therefore guilty of the offence. Ontario courts were pushed back to the earlier standard of strict liability.

In 1981, Quebec followed suit with R. c. Corbeil, ⁸¹ in which the Court of Appeal held that the accused, Rejeanne Corbeil, was guilty under paragraph 365(b) when, for $10, she claimed that she could predict the future on the basis of the lines in a customer’s hand because she had taken courses in Europe. ⁸² Her appeal was dismissed because simply accepting money and telling the future was once again enough to infer deceit without the Crown needing to prove criminal intent. ⁸³

Six years later, in 1987, the Supreme Court of Canada rendered its only decision on Canada’s witchcraft provision in R. v. Labrosse ⁸⁴, another case from Quebec. In its three-page decision, the unanimous court leaned back towards strict liability, holding that the critical fraudulent element may arise simply from the accused’s gestures, actions, and words in making the victim believe in her powers of prediction. ⁸⁵ Despite the claims of Lucette Labrosse, neither the trial court, nor the Quebec Court of Appeal, nor the Supreme Court of Canada thought that she sincerely believed in the “special powers to predict the future” from which she claimed to benefit since childhood. ⁸⁶ The Supreme Court did, however, leave open the question of whether someone holding an honest belief in his or her powers could raise that as a defence. ⁸⁷ The whole case turned on fraud and bad business, and no mention was made of the spiritual origins of the provision or their one-sided application over the years to marginalized women.

VI. Full Circle: Witchcraft, Freedom of Religion, and the Charter

Two years after R. v. Labrosse, in R. v. M.K.M. (1989), ⁸⁸ Justice Arthur Peter Nasmith of the Ontario Provincial Court penned arguably the most lucid judicial reasons on the witchcraft provision. His judgment shifts the focus away from the somewhat post hoc fraud-preventing justifications for the witchcraft prohibition back to its religious inception. During a police operation that Justice Nasmith labelled “an embarrassment on the administration of justice,” the accused youth read tarot cards and a horoscope for an undercover police officer. ⁸⁹ Justice Nasmith then decried the religious roots of the provision when he remarked that the decisions made under it, as well as the case before him, are “tainted with archaic thinking.” ⁹⁰ Presumably the thinking was archaic because it dealt with undesirable religious practices.

He continues, condemning the “dogmatic tone” of the witchcraft provisions—provisions that “were probably intended to counteract the perceived threat to the right of predominant religious institutions to protect their exclusive domain for dealing with the realm of superstition or the supernatural.” ⁹¹ According to Justice Nasmith, “the criminality in these early offences was closely connected to notions of heresy.” ⁹² Foreshadowing the end of the provision nearly thirty years later, Justice Nasmith warns that discussions about believers, non-believers, and partial believers, as well as elements of curiosity, entertainment, and theatre, add up to a “very unsuitable atmosphere for prosecution under the Criminal Code.” ⁹³ Justice Nasmith called the addition of the word fraudulent “refreshing,” thus seeming to approve of Parliament’s newfound focus on bad business, but his gaze was unequivocally fixed on the prohibition’s religious inception. ⁹⁴

The Canadian Charter of Rights and Freedoms ⁹⁵ was enacted in 1982. The focus of the prohibition fundamentally shifted back to its religious origins in R. v. Duarte (1990) ⁹⁶ when the accused invoked freedom of religion under the Charter against an accusation of witchcraft. In this Ontario case, a woman brought her daughter to Antonio Duarte, a witch doctor, in the hopes that he would help the daughter with fiancé problems and suicidal ideation. ⁹⁷ Duarte was charged with witchcraft under paragraph 365(a) of the Criminal Code, which was the first time that charges had been brought under paragraph (a) since Parliament separated the provision into paragraphs in 1955. Paragraph 365(a) is the one that explicitly prohibits witchcraft, sorcery, enchantment, or conjuration, rather than the oft-invoked paragraph (b) that prohibits fortune-telling. And, somewhat paradoxically—given how witchcraft prohibitions had been used in earlier centuries to marginalize women ⁹⁸—the accused was a man.

Rather than constituting a criminal offence of which the state could accuse someone, for the first time, witchcraft was now a religious identity being used as a criminal defence. However, Justice Patricia Riley German held that section 365 of the Criminal Code did not infringe anyone’s freedom of religion under paragraph 2(a) of the Charter. Nor did it discriminate against Duarte under section 15 of the Charter because he did not have to prove the sincerity of his belief. Once again, the dishonesty or falsity of witchcraft was simply assumed without further comment when the court wrote that “any threat [from the provision] is to the dishonest person who pretends belief in these matters and that is not a threat to freedom of religion.” ⁹⁹ Once again, there is no discussion about what would happen to someone not merely pretending to believe in these matters, but rather sincerely believing in them.

In R. v. Appleby, ¹⁰⁰ which also took place in 1990, the accused once more invoked paragraph 2(a) of the Charter as a religious shield against accusations of witchcraft. He claimed that being a Wiccan believer exempted him from section 90 of the Criminal Code, which prohibited him from carrying a nine-inch knife that he argued was of spiritual significance. However, Justice Bernard Laven held for the Alberta Provincial Court that, even if Appleby’s religious rights under paragraph 2(a) of the Charter were infringed, this was justifiable as a public safety measure under section 1. ¹⁰¹ He specified that the accused cannot carry around a dangerous weapon “under veil or guise, of his beliefs, religious or otherwise, in the occult, magic, mystery and the craft of Wicca” and that any comparison to the “right or privilege of a Sikh to carry a Kirpan is merely absurd and entirely derisive.” ¹⁰² As in R. v. Duarte, Justice Laven failed to elaborate on why this comparison was absurd and derisive, assuming that the reader would simply understand. Witchcraft might now be a religion, sure, but not one that warranted Charter protection.

Although, again in 1990, someone was acquitted of witchcraft on appeal in R. c. Carjaval ¹⁰³, the last actual conviction in Canada under the witchcraft provision, this one, back under the fortune-telling paragraph 365(b), was upheld in 1993 by the Quebec Court of Appeal in a case called R. c. Turgeon, ¹⁰⁴ just over one hundred years after the witchcraft provision was imported into Canada. Yet again, the question on appeal was whether the trial judge could infer fraudulent intent based solely on the accused’s claim to predict the future. ¹⁰⁵ Just as in R. v. Marcott, decided almost one hundred years earlier, in R. c. Carjaval, the Quebec Court of Appeal upheld the conviction at first instance by saying that “it is possible to infer mens rea simply from the fraudulent character of the actions.” ¹⁰⁶ And, like witchcraft, simply telling fortunes was again taken without comment to be both false and fraudulent.

VII. Eliminating the Witchcraft Provision

The witchcraft provision was last invoked in two immigration cases in which the person admitted to or was accused of practising witchcraft in another country. In Zablon v. Canada (2013), ¹⁰⁷ Christopher Zablon was accused of witchcraft in his home country of Kenya. ¹⁰⁸ Based on this allegation, his accusers burned down his house and murdered a police officer who was there to protect him. ¹⁰⁹ The Canadian Immigration and Refugee Board refused his application for refugee status because, among other things, his religious belief was not one covered under the Convention Relating to the Status of Refugees. ¹¹⁰ The Federal Court overturned that decision and sent his application back to the board for redetermination. ¹¹¹ Later, in Fofona c. R., ¹¹² the accused pleaded guilty in Canada to witchcraft under paragraph 365(a) but did not realize that it would harm his application for permanent residency. ¹¹³ The Superior Court of Quebec held that it would not be in the interests of justice or of predictability in the law to delay his deportation on this basis. ¹¹⁴

There have been no convictions under the witchcraft provision since R. c. Turgeon in 1993, but the Crown has laid several charges entirely on grounds of bad business rather than bad religion. ¹¹⁵ In 2009, Vishwantee Persaud claimed to be from a family of witches and said that she could embody the client’s deceased sister during a tarot reading. ¹¹⁶ She received $27,000 for her services. Prosecutors withdrew the witchcraft charge when Persaud pleaded guilty to four counts of fraud and returned the money that she had received. ¹¹⁷ In 2012, Gustavo Valencia Gomez was charged with witchcraft when, in exchange for $23,000, he treated an ill woman with egg yolks, lemon oil, and worms, believing her to be cursed. Again, the charges were dropped when he returned the money. ¹¹⁸ Finally, in 2017, one Master Raghave provided astrological and psychic services to exorcise an evil spirit from a sick person in exchange for the tidy sum of $101,000. Although he was charged with witchcraft and several other offences, as in the other cases, prosecutors again dropped the witchcraft charge in exchange for restitution and a guilty plea on another fraud charge. ¹¹⁹

On 6 June 2017, then Minister of Justice Jody Wilson-Raybould introduced Bill C-51, which would, among other things, finally eliminate the witchcraft provision. ¹²⁰ She targeted this provision “given the paltry number of prosecutions” and the fact that it is redundant with the other fraud provisions. ¹²¹ Once again, the bad religion dimension of the witchcraft prohibition faded into the background while the bad business of fraud stole the show. Doubtless with Persaud, Gomez, and Master Raghave in mind, one minister pointed out that people still use “fraudulent witchcraft powers … even in this day and age.” ¹²² The Conservative member of Parliament, Erin O’Toole, quipped that the Liberal Minister of Justice was too preoccupied with “removing critical parts of our Criminal Code, like witchcraft” instead of dealing with more pressing legislative concerns. ¹²³ In the end, enough members approved the bill, with one even echoing Justice Nasmith’s criticism in R. v. M.K.M. by noting that the provision “impinges on the rights of some religions.” ¹²⁴ On 13 December 2018, Bill C-51 became law and the witchcraft prohibition was finally repealed in Canada. ¹²⁵

VIII. Conclusion: From Bad Religion to Bad Business and Back Again

First and foremost, the long history of witchcraft in England and in Canada makes one think of all of the people—primarily women—who were tortured, imprisoned, or put to death under the early witchcraft prohibitions based on accusations of bad religion. The inequitable application of the witchcraft provision in Canada and elsewhere is something that has been discussed for many decades in the academic literature. ¹²⁶ It was also a significant concern for early writers, politicians, and influential thinkers who wanted to repeal witchcraft laws.

In 1769, William Blackstone would write that “to the terror of all ancient females in the kingdom … many poor wretches were sacrificed thereby to the prejudice of their neighbours.” ¹²⁷ In 1883, Sir Stephen wrote that this “odious superstition” led to the deaths of far too many “poor old creatures.” ¹²⁸ And, in 1933, a Canadian member of Parliament declared sorrowfully that, although “there never was actually such a thing as witchcraft, … many poor old women paid with their lives for that superstition.” ¹²⁹ The unequal, unfair, and misogynistic application of the witchcraft provision was noticed and decried long before the uproar about it in modern legal writing. ¹³⁰

The next thing that comes to mind is the religious dimension of witchcraft prohibitions. There is no one universally accepted definition of religion, and several scholars have noted how the magical aspects of witchcraft overlap with the worldly benefits—such as health, wealth, and resisting temptation—that religion is often said to procure. ¹³¹ The Supreme Court of Canada has had similar difficulties in pinning down a definition of religion. ¹³² In Syndicat Northcrest v. Amselem, Justice Frank Iacobucci defines religion as “belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions.” ¹³³ Later, he claims that religious freedom under the Charter is the ability to practise and “harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes.” ¹³⁴

In general, religious belief is declining worldwide and in Canada in particular. ¹³⁵ This is probably one of the main reasons why Canadians are less excitable about spiritual practices that are unlike their own. ¹³⁶ It is almost certainly what explains the transition from bad religion toward bad business: religion was just less important to everyone, including Parliament and the courts. Nevertheless, although Justice Laven in R. v. Appleby calls the accused’s comparison of his Wiccan religion to that of a Sikh “absurd and entirely derisive,” ¹³⁷ the freedom of religion defence invoking paragraph 2(a) of the Charter against an accusation of witchcraft would likely now succeed in light of Supreme Court decisions from the early 2000s such as Amselem and Kapp, especially now that there have been more and more Wiccans turning up since the 1970s. ¹³⁸

Once a criminal charge made with “ardour and eagerness … as a natural result of religious excitement,” ¹³⁹ nowadays, modern Canadian society seems ready to accept that “[o]ne person’s ‘witchcraft’ is another person’s religion.” ¹⁴⁰ Gone are the days of burning people at the stake. Gone, too, are the days of persecution and prosecution on the basis of illegitimate belief and social stigma. Now, in the twenty-first century, we find that “Canada is a pluralistic society” ¹⁴¹ and that, as one member of Parliament put it, the witchcraft prohibition “impinges on the rights of some religions.” ¹⁴² At least for the Honourable Wayne Stetski, witchcraft is not an absurd and derisive comparison to Sikhism, as it was for Justice Laven in R. v. Appleby: it is a religious belief that should be treated respectfully.

We now treat the bad business of quasi-spiritual fraud not as its own class of criminal offence, but as any other kind of fraud: under the general fraud provision of the Criminal Code. Once, witchcraft was a charge of blasphemy that led women living on the margins of society to their death. It then became a distinct kind of fraud with a spiritual flavour. Now, witchcraft has become a voluntary religious identity for some that “involves pantheism, goddess worship, environmentalism, [and] meditation”—an identity that many adopt precisely because of how radical and subversive witchcraft is. ¹⁴³ But our enlightened and tolerant view of witchcraft was hard-won. As the history of the witchcraft prohibition makes plain, this pluralistic attitude was born of strife, sacrifice, and stigmatization. Thankfully, modern Canadian society finally seems ready to coexist with witchcraft.