II. The Early Years

In some way or another, witchcraft as a spiritual practice has been outlawed in Europe since the early Middle Ages.Footnote ¹³ The earliest English prohibition dates back to Henry VIII in 1541.Footnote 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.Footnote ¹⁵ But it was during the 1640s that the witch craze in England reached its peak.Footnote 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,Footnote 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.”Footnote ¹⁸ Sir James Fitzjames Stephen—a man whose writings later influenced the drafters of the Canadian Criminal Code Footnote 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.”Footnote 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.Footnote ²¹

The last English conviction for witchcraft was in Hertfordshire in 1712, after which the religious zeal against witchcraft seemed to die out.Footnote 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.Footnote 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,”Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ²⁸ Faced with this and other incriminating evidence, Marie-Josephte then admitted killing her husband with two hatchet blows for physically abusing her.Footnote 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.Footnote 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.Footnote 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,Footnote 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 Footnote 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)Footnote 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.”Footnote 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.”Footnote 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 Footnote ³⁷, cited in likely the first annotated Criminal Code of Canada Footnote 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.”Footnote 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.”Footnote 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.”Footnote 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.”Footnote 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.Footnote ⁴³

In 1893, not long after R. v. Milford in 1890, the Parliament of Canada adopted the Criminal Code of Canada Footnote ⁴⁴ based on the common law, existing legislation, Sir James F. Stephen’s Digest of the Criminal Law,Footnote ⁴⁵ George Wheelock Burbidge’s Digest of the Criminal Law of Canada,Footnote ⁴⁶ and the English Draft Code of 1878.Footnote 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.Footnote ⁴⁸ At the time at which it was imported, the provision read:

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 IFootnote 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).Footnote ⁵¹ The court in R. v. Marcott was at pains to distinguish unlawful fortune-telling from the kind commonly done at fairs.Footnote 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.”Footnote 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.”Footnote ⁵⁴

We again see the focus shift towards bad business, rather than bad religion, in two early Ontario cases. In R. v. Monsell (1916),Footnote 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),Footnote 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.”Footnote 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),Footnote 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.”Footnote 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.Footnote 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.”Footnote 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.”Footnote ⁶² He clarified that “it is not a case of witchcraft or no witchcraft; it is a case of fraud or no fraud.”Footnote ⁶³ The version of the provision that came into force on 1 April 1955 readsFootnote ⁶⁴:

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,”Footnote 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.Footnote 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.”Footnote ⁶⁸ In the 1974 case before the Municipal Court, R. c. Larin,Footnote ⁶⁹ the accused, Denise Larin, had not expressly asked for consideration for a palm reading, but she had hinted that people typically leave $5.Footnote ⁷⁰

The main issue at trial was whether or not the defendant fraudulently told someone’s fortune.Footnote 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.”Footnote 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!”Footnote ⁷³

One year later, in 1975, the word fraudulently was considered in Ontario for the first time in R. v. Dazenbrook. Footnote 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.”Footnote 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”Footnote ⁷⁶ and, because the prosecution had not done so in the case at bar, the court acquitted the accused.Footnote 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.,Footnote 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.”Footnote 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.Footnote 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,Footnote 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.Footnote 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.Footnote ⁸³

Six years later, in 1987, the Supreme Court of Canada rendered its only decision on Canada’s witchcraft provision in R. v. Labrosse Footnote 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.Footnote 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.Footnote 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.Footnote 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),Footnote 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.Footnote 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.”Footnote 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.”Footnote ⁹¹ According to Justice Nasmith, “the criminality in these early offences was closely connected to notions of heresy.”Footnote 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.”Footnote 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.Footnote ⁹⁴

The Canadian Charter of Rights and Freedoms Footnote ⁹⁵ was enacted in 1982. The focus of the prohibition fundamentally shifted back to its religious origins in R. v. Duarte (1990)Footnote 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.Footnote 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 womenFootnote 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.”Footnote 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,Footnote 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.Footnote 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.”Footnote 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 Footnote 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,Footnote 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.Footnote 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.”Footnote 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),Footnote ¹⁰⁷ Christopher Zablon was accused of witchcraft in his home country of Kenya.Footnote ¹⁰⁸ Based on this allegation, his accusers burned down his house and murdered a police officer who was there to protect him.Footnote 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. Footnote ¹¹⁰ The Federal Court overturned that decision and sent his application back to the board for redetermination.Footnote ¹¹¹ Later, in Fofona c. R.,Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ¹²⁰ She targeted this provision “given the paltry number of prosecutions” and the fact that it is redundant with the other fraud provisions.Footnote 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.”Footnote 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.Footnote 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.”Footnote ¹²⁴ On 13 December 2018, Bill C-51 became law and the witchcraft prohibition was finally repealed in Canada.Footnote 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.Footnote 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.”Footnote ¹²⁷ In 1883, Sir Stephen wrote that this “odious superstition” led to the deaths of far too many “poor old creatures.”Footnote 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.”Footnote 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.Footnote 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.Footnote ¹³¹ The Supreme Court of Canada has had similar difficulties in pinning down a definition of religion. Footnote 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.”Footnote 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.”Footnote ¹³⁴

In general, religious belief is declining worldwide and in Canada in particular.Footnote ¹³⁵ This is probably one of the main reasons why Canadians are less excitable about spiritual practices that are unlike their own.Footnote 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,”Footnote 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.Footnote ¹³⁸

Once a criminal charge made with “ardour and eagerness … as a natural result of religious excitement,”Footnote ¹³⁹ nowadays, modern Canadian society seems ready to accept that “[o]ne person’s ‘witchcraft’ is another person’s religion.”Footnote 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”Footnote ¹⁴¹ and that, as one member of Parliament put it, the witchcraft prohibition “impinges on the rights of some religions.”Footnote 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.Footnote 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.