'Modern Law, Modern Hammers: Canada's Witchcraft Provision as an Image of Persecution' by Natasha Bakht and Jordan Palmer in (2015) 35
Windsor Review of Legal and Social Issues 123
examines
Canada’s retention and application of the archaic offence of pretending to practise witchcraft in the Criminal Code. The disproportionate effect that the offence has on women and certain religious and racialized groups is highlighted. The historic persecution of women accused of practising witchcraft is discussed in order to provide some background to the history and ideology of the witchcraft offence in Canada. The gendered nature of the offence 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. An analysis of the confused judicial interpretation of the offence and consideration of the social goals achieved in criminalizing such activity when several fraud offences already exist in Canada follows. Finally, the constitutionality of section 365 is examined using a feminist and religious freedom lens. The recent case of R v Persaud provides the modern day backdrop to examine Canada’s witchcraft offence and propose the repeal of section 365.
The authors comment
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 offences. 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.
They go on to argue
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 offence. 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. …
When viewed in combination with the historic disadvantage of women created by law, the disproportionate targeting of women in enforcement of witchcraft laws makes section 365 ripe for reform. The general trend is and should be clear:
Over the past twenty years [in Britain]...case law and legislation have emerged to provide liberty to practise witchcraft, within the limits prescribed by the general criminal law, giving its practitioners a freedom of thought, conscience and belief.
Canada has followed the trend to greater freedom; it now needs to take the next step and repeal section 365.
Other jurisdictions are not as resistant to reform. For example, the 1961 reform of New Zealand criminal law deleted the provision “pretending to practise witchcraft,” and “many offenses, of whimsical historical interest only, were swept away.” Between 1984 and 1993, there were six British prosecutions under the Fraudulent Mediums Act, with five convictions. The Act was repealed in 1993. Neither jurisdiction has, to date, collapsed into chaos.
Australia, another Anglo-centric common law legal system has also moved away from criminalizing witchcraft, albeit in a patchwork way since
criminal jurisdiction is not centralized. The Australian state of Victoria decriminalized witchcraft in 2005, and the Northern Territory of Australia recently promised to delete a provision against witchcraft and fortune telling. The penalty for that offense was “a mandatory one-year imprisonment and every quarter, [one was] brought to the market and pilloried for the purpose of people throwing vegetables and such things at you.” The decision was supported by a policy review paper in 2010 by the Northern Territory’s Legal Policy Division, which described the witchcraft provision as “irrelevant and silly” and concluded that “[i]f fraud is found to be involved
then fraud or criminal deception can be charged...[the witchcraft provision]
should be repealed.” A news article on the change reported that criminalization of witchcraft “has since [1735] been repealed in most other parts of the Western world.” Canada is an outlier in this respect.
Until full decriminalization is achieved, courts should adopt a contemporary approach to the provision in keeping with common sense and the requirements of the Charter, as was done in R v Markovitch. In this case, the accused was convicted
after,
she deliberately inveigled two of the three people into a long-term relationship with her. That was the basis of the fraud. She told all of those people that she was capable of rectifying certain personal problems that each had...With a good deal of pre-planning and with a number of direct and veiled threats, Mrs. Markovitch, when she had placed her victims within her web, continued to suck money from them on the threat to them that if they did not keep on paying the money, certain unfortunate things would happen to them... In the result, the total loss of all three was $17,000.
What is the impact for defendants such as Persaud? First, the provision provides a sensational charge that shifts the discourse from alleged fraud to an archaic charge reflecting patriarchal suspicion of independent, strong, dissenting women. Secondly, it exposes the defendant to a traditionally unbalanced legal framework, where their true beliefs may be used against them. Though the evidence did not suggest that Persaud sincerely believed she was practicing witchcraft, had she been a sincere Wiccan, it is unclear which line of reasoning would be relied upon.
Third, an accused in the position of Persaud could be subject to religious analysis and criticism as per Labrosse about the validity of her beliefs. Such a disturbing trend was articulated in the case of NS, where the majority judgment advocated a searching analysis of whether a sexual assault complainant truly believed she must wear her niqab to testify in court. While NS may technically comply with Amselem, the decision, together with the wording of section 365 and conflicting jurisprudence, may force a court to delve into the nature of Persaud’s belief. When combined with the absence of a requirement for those observing the witchcraft to believe the power of the accused, the law has created the potential for a crime based on genuine religious belief, historically used to subjugate women and vulnerable communities.
Finally, the charging of any defendant under such an antiquated section robs the Crown and the trier-of-fact of much needed flexibility. The claims against Persaud were serious, and a charge under section 365 carries only the weight of a summary conviction. A prosecution under the generic fraud section would allow for the offense to be treated as an indictable offense, arguably better representing the seriousness of the alleged crime.
