Persaud and Canadian Witchcraft Law

'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.

Trust

'Constellations of Trust and Distrust in Internet Governance' by Jeanette Hofmann in the European Commission Report of the Expert Group 'Risks of Eroding Trust - Foresight on the Medium-Term Implications for European Research and Innovation Policies argues

Trust typically becomes an issue when we find it wanting. In Internet governance, it was the disclosure of mass surveillance that has drawn new attention to trust as a crucial resource of engagement and collaboration. But what exactly is trust? Public discourse tends to create a binary understanding that portrays trust as a positive and distrust as a negative thing. This article challenges this view by suggesting that trust and distrust co-occur and that distrust can be a productive source of institution-building. It will be argued that modern constitutions are examples of how distrust towards the abuse of power has been transformed into generalized trust. Democracies are able to generate basic cultures of trust by institutionalizing the fear of its abuse. Normative certainty, reliable mechanisms of accountability and the enforcement of rights, duties and responsibilities are among the conditions conducive to the development of general trust in governance arrangements. Internet governance, characterized by a constitutional framework still in its infancy, faces the challenge to generate the specific conditions itself.for creating generalized trust in its institutions. 

The first section of this paper discusses concepts of trust with implications for the political sphere. The second section illuminates the sphere of Internet governance from a trust perspective. The third section briefly describes the crisis of confidence in Internet governance caused by Edward Snowden's revelations about mass surveillance on the Internet. This crisis of confidence serves as the empirical background for two scenarios sketching out potential trajectories in Internet governance. Referring to Albert Hirschman's concept of voice and exit, the first scenario assumes that a significant loss of trust facilitates a process of constitutionalization of Internet governance while the second suggests that the decline of trust accelerates a gradual fragmentation of the Internet.

Energy Regulation

'European Energy Regulators: An Empirical Analysis of Legal Competences' (University of Groningen Faculty of Law Research Paper No. 2015/24) by Thijs Jong and Edwin Woerdman offers an empirical examination of

whether differences in legal competences of National Regulatory Authorities (NRAs) of European gas and electricity markets are rationally aligned to the corresponding countries’ divergent levels of 1) security, 2) competitiveness, and 3) carbon-neutrality of energy supply. Scores are derived (a) on the extent to which these energy supply characteristics are realized and (b) on how many competences NRAs have regarding these policy objectives. Although higher energy scores should reduce the need for regulatory intervention and thus legal competences, it appears that this does not hold for most policy objectives. In fact, gas and electricity market unbundling and/or liberalization imply higher degrees of regulatory intervention. Finally, the legal competences do not completely follow the 'optimal' competence arrangement for regulatory authorities; compared to a theoretical benchmark there are relatively more 't

Nationhood

'Canadian Constitutional Identities' by Eric M. Adams in (2015) 38(2) Dalhousie Law Journal (Forthcoming) comments

 Constitutions are stories nations tell about themselves. Despite the famous declaration in the Constitution Act, 1867 that the “Provinces of Canada…Desire…a Constitution similar in Principle to that of the United Kingdom,” most of Canada’s constitutional history can be understood as the search for a distinctly Canadian constitutional identity. Canadians have always looked to their constitutional instruments to both reflect and produce a particular vision of the nation and its citizens. This article focuses on the search for Canada’s constitutional identity during its first century as a nation, from Confederation until the 1960s. Drawing on a varied array of sources and voices, this article argues that the powerful yearning for identity operated as a driving force in Canadian constitutional law, politics, and culture in an era before the catalytic arrival of the Canadian Charter of Rights and Freedoms. 

Adams states

Today, Canada’s constitution serves as an object of law for lawyers, a set of rules for governments, and as a repository of politics for political scientists and journalists. A constitution is, of course, all of those things, but a constitution also consists of the  stories a nation tells about itself. A constitution finds full meaning and expression in the multiple, diverse, layered, and conflicting claims made about its histories, purposes, and defining characteristics. Just as personal identity is forged and sustained in a narrative of the self, constitutional stories are driven by the desire to make coherent these varied strands of constitutional text, perspective, and experience. Such stories serve as a living oral history, always in the process of being made and re-made in the telling. A particular constitutional story may be dominant or subversive, popular or obscure at any particular moment, but regardless these stories draw from, and also give shape and meaning to, the constitution itself as well as the constitutional law, politics, and culture in which it is embedded. The creation of constitutional meanings, in this sense, are the products not only of judges, politicians, and civil servants, but of a broader “interpretive community” comprising lawyers, scholars, journalists, artists, and citizens. Not all are equally influential, but all may play a role in telling more or less compelling stories of constitutional significance. The stories themselves tell us much in their content and omissions, proponents and critics, tenor and tone. In this, Sanborn was surely right: a constitution endures in its capacity for affection, in the stories it tells, in the identities it fosters. 

This article argues that a great deal of constitutional law, culture, and politics can be explained in terms of the making, contestation, and transformation of such struggles to define the balance of federalism in the relationship between the provinces and federal government, to ongoing controversies concerning the place of Quebec in the federation, the application of individual rights and their proportionate limits, judicial remedial discretion and deference, and aboriginal rights and sovereignty, Canada’s constitution has been defined as much by a struggle to determine Canada’s constitutional identity as to interpret its formal constitutional text. My purpose in this article is to examine one particularly enduring strand among the battles over Canada’s constitutional identity: the search for “constitutional autochthony,” or, what Peter Oliver usefully describes as the “constitution of independence”. The term autochthony originates in the comparative constitutional work of Kenneth Wheare as a way of explaining the twentieth-century desire of some Commonwealth countries, including Canada, to constitutionally separate from Great Britain. But Wheare intended the term to gesture to something altogether deeper and less tangible than mere autonomy: authochthony, he observed, described the desire for an indigenous constitutionalism “sprung from their own soil.” 

Despite the famous declaration in the Constitution Act, 1867 that the “Provinces of Canada ... Desire ... a Constitution similar in Principle to that of the United Kingdom,” much of Canada’s constitutional history can be understood as the search for an autochthonous and distinctly domestic Canadian constitutional identity, one tied up with, but not limited to, independence, a domestic amending formula, and recognition and expression of the diverse political, social, and cultural realities of Canada. That yearning for a uniquely Canadian constitutional identity emerged from and textured Canada’s constitutional jurisprudence, scholarship, and culture just as it came to drive the constitutional politics of Confederation, independence, patriation, and the Meech Lake and Charlottetown Accords.  

This article has three parts. Part I sketches more fully what I mean by constitutional identity, charts the forces which create those identities, and argues that constitutional identities play a crucial role in Canadian constitutional law, politics, and culture. Part II identifies constitutional nationalism as an early and influential strand in the formation of Canadian constitutional identity. As I have explained elsewhere, constitutional nationalism “locates its demand for national self-determination, ideology, and sovereignty in formal constitutional instruments. It takes seriously the legal authority of the constitution to effect change but also the symbolic role of the constitution as an instrument to construct and cement national identity, unity, and purpose.” Early efforts to define Canadian constitutional distinctiveness by Thomas D’Arcy McGee, among others, transformed into calls for constitutional autonomy from Great Britain, and, ultimately, the search for complete constitutional independence, alongside a distinct and indigenous expression of Canadian constitutionalism. Part III examines arguments for a Canadian constitutional identity within the context of the political, cultural, and constitutional debates of the 1960s. In discussions about the new national flag, national unity, and repatriation of the constitution, Canadians were at once unified by a desire for constitutional self-definition, but also on the cusp of profound disagreement about how new constitutional arrangements might best express and reflect the nation’s true nature and essential characteristics.

Breaches

The UK Independent reports on yet another data breach (with the standard response from the database owner).

This time it is Adult FriendFinder, with the a hacker supposedly exposing "the personal and sexual details of nearly 4 million users on one of the world-leading dating sites".

The data reportedly includes sexual orientation, preferences, partnership status, names, email addresses, postcodes, dates of birth and IP addresses. The coverage includes data regarding previous members who had deleted their accounts.

The service is claimed to have  63 million users

Response?

FriendFinder Networks Inc understands and fully appreciates the seriousness of the issue. 

We pledge to take the appropriate steps needed to protect our customers if they are affected.

Meanwhile the NY Times reports on another health sector breach in the US -

CareFirst, a Blue Cross Blue Shield plan, on Wednesday became the third major health insurer in the United States to disclose this year that hackers had breached its computer systems and potentially compromised some customer information. 

The attack could affect as many as 1.1 million of its customers, but CareFirst said that although the hackers gained access to customer names, email addresses and birthdates, they did not obtain sensitive financial or medical information like Social Security numbers, credit card information and medical claims. The company, which has headquarters in Maryland and serves the Washington area, said the attack occurred in June and described it as “sophisticated.” 

Chet Burrell, CareFirst’s chief executive, said the company contacted the Federal Bureau of Investigation, which is investigating attacks against the insurers Anthem and Premera. … 

Federal officials have yet to label the breaches at Anthem and Premera Blue Cross as state-sponsored hackings, but the F.B.I. is effectively treating them as such, and China is believed to be the main culprit, according to several people who were briefed on the investigations but spoke on the condition of anonymity. There are indications the attacks on Anthem, Premera and now CareFirst may have some common links. … 

The Breaches at Anthem, which is one of the nation’s largest health insurers and operates Blue Cross Blue Shield plans, and Premera Blue Cross, based in Washington State, were much larger. The one at Anthem may have compromised the personal information of 79 million customers and the one at Premera up to 11 million customers. 

Anthem has said the hackers may have stolen Social Security numbers but did not get access to any medical information. Premera said it was possible that some medical and bank account information may have been pilfered.

Payment

'Bitcoin: Economics, Technology, and Governance' by Rainer Böhme, Nicolas Christin, Benjamin Edelman and Tyler Moore in (2015) 29(2) Journal of Economic Perspectives 213-38 comments 

Bitcoin is an online communication protocol that facilitates the use of a virtual currency, including electronic payments. Bitcoin's rules were designed by engineers with no apparent influence from lawyers or regulators. Bitcoin is built on a transaction log that is distributed across a network of participating computers. It includes mechanisms to reward honest participation, to bootstrap acceptance by early adopters, and to guard against concentrations of power. Bitcoin's design allows for irreversible transactions, a prescribed path of money creation over time, and a public transaction history. Anyone can create a Bitcoin account, without charge and without any centralized vetting procedure—or even a requirement to provide a real name. Collectively, these rules yield a system that is understood to be more flexible, more private, and less amenable to regulatory oversight than other forms of payment—though as we discuss, all these benefits face important limits. Bitcoin is of interest to economists as a virtual currency with potential to disrupt existing payment systems and perhaps even monetary systems. This article presents the platform's design principles and properties for a nontechnical audience; reviews its past, present, and future uses; and points out risks and regulatory issues as Bitcoin interacts with the conventional financial system and the real economy.

Principles

'Judicial Independence From The Executive: A First-Principles Review of the Australian Cases' by Rebecca Ananian-Welsh and George Williams in (2015) 40(3) Monash University Law Review [PDF]

develops a first principles conception of judicial independence. It does so by way of synthesising the large volume of domestic and international materials that describe the idea. It then analyses the extent to which Australian judges have realised the concept through constitutional and other legal development. The article establishes the very significant steps taken by Australian judges to assert their independence from the executive, but equally it also identifies some important gaps. Means of remedying these gaps are discussed, including through the further development of constitutional principles and other non-judicial means. 

The authors comment

Judicial independence is a central pillar of Australia’s constitutional system. Courts themselves play a pivotal role in maintaining this, and recent years have seen a surge in cases and significant and rapid developments in the area. These developments have advanced and reinforced protections for judicial independence, particularly with respect to the independence of judges and courts from the executive branch. In this article we consider how the judiciary has asserted its independence from the executive through an examination of the case law of federal, state and territory courts, and assess whether these cases have fully realised the principle. 

In order to measure the extent to which courts have succeeded in establishing their independence from the executive, we must first identify what judicial independence means and what it requires. Courts, judges, lawyers, international associations, commentators and experts have tackled these same questions in countless forums. The result is a diversity of terminology and approaches describing and giving content to the notion of judicial independence. In Part II we synthesise the leading international and Australian resources to arrive at a first principles conception of judicial independence. Through this review we identify four key indicators of judicial independence, namely: appointment, tenure and remuneration; operational independence; decisional independence; and personal independence. 

These indicators frame our analysis of the Australian cases in Part III, and reveal that the jurisprudence has focused on some aspects of judicial independence at the expense of others. In addition to revealing gaps in the case law, our analysis highlights areas of unrealised potential and suggests ways in which the law might develop to more comprehensively protect judicial independence at the federal, state and territory levels. We discuss these gaps and areas for further development in Part IV. Ultimately, our analysis demonstrates the importance of judicial vigilance in respect of every facet of judicial independence.