(The Crime of) Pretending to be a Witch

Jason Pitzl-Waters —  November 29, 2012 — 35 Comments

Canadian papers are paying a lot of attention to newspaper owner Gustavo Valencia Gomez, who is charged with using all of the old tricks to convince a client that she was under supernatural attack, and that a large influx of money was necessary to remove the danger.

Gustavo Valencia Gomez

Gustavo Valencia Gomez

“The most frightening point, she alleged, was when she was told to bring pictures of her two children to an appointment. When eggs were cracked over them, there was blood in the yolks, she recalled, adding she was told this meant her children were marked for death. […] Another ritual involved putting lemon oil on her body. The oil turned black another sign of a curse, she said she was told. […] On another occasion, worms were used to scare her…”

This isn’t unique, it is, in fact, a pretty common con. Usually, when someone is caught running such a con they are charged with fraud, but Gomez’s case is garnering additional attention for an additional charge under Canadian law: Pretending to practice witchcraft.

“Early Tuesday afternoon, Mr. Gomez was arrested and charged with fraud over $5,000, false pretences, possession of the proceeds of crime and pretending to practice witchcraft, a summary (less serious) offence that carries no minimum or maximum penalties under the Criminal Code.”

Pretending to practice witchcraft? Yep. Here’s what the criminal code says about that.

365. Every one who fraudulently

  • (a) pretends to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration,
  • (b) undertakes, for a consideration, to tell fortunes, or
  • (c) pretends from his skill in or knowledge of an occult or crafty science to discover where or in what manner anything that is supposed to have been stolen or lost may be found,

is guilty of an offence punishable on summary conviction.

In recent years, some Canadian law enforcement agencies have taken a liking to this law, reviving it when dealing with fraud cases involving fortune telling and related services. However, its recent revival has been controversial, with some Pagans worried that these charges could be abused in the future.

“Brendan Myers, a pagan and philosophy professor at the Cégep Heritage College, worries that the law could be used against law-abiding pagans. “It may put people in my community at risk of not being able to practice their faith,” he said, adding that although the law has not been abused in the past, but he worried it could be in the future. The law only targets people who purport to practice witchcraft, but there are no equivalent laws for charlatans that abuse other faiths, he said.”

When I first reported on this relatively obscure statute, Myers explained why he found the law deeply problematic.

“The key word in the legislation is the word “pretending” (in subsections (a) and (c).) As pointed out to me by my friend in London via private correspondence: the word “pretending” here suggests that the State does not believe that witchcraft could be real: anyone who says they are practicing witchcraft is only pretending. That can potentially include those who say that they are practicing the religion. With this in mind, it’s not difficult to imagine a religiously conservative or puritan judge ruling that anyone who practices the religion of Wicca is “pretending” to practice witchcraft.

Our religious practices are already protected by the Canadian Charter of Rights and Freedoms, which is part of our constitution and thus trumps the Criminal Code. But a lot will depend on the eye of the beholder here. It is not difficult to imagine a future government much more conservative than our present one, declaring that witchcraft and wicca is not a religion, and that anyone who practices it is “pretending”. Remember, it doesn’t matter if you think it’s a religion: it matters if the law thinks so. I do not know if any judicial precedents have established wicca and witchcraft as a religion in the eyes of the law. So I’ve written to a lawyer that I know, and I await his response.”

Of course, not all Pagans are opposed to fraudsters being charged with pretending to be a witch, Ariana L’Heureux told Metro Toronto that she feels the law helps separate genuine Witchcraft from the con-artists.

Police will often lay fraud charges, but L’Heureux said the witch law aids them in their investigation by helping them narrow in on that specific kind of fraud from the beginning. The law separates witches, like herself, who use the power of the nature and universe and offer spiritual advice, from charlatans who “pretend to be something they’re not for monetary gain, exploiting people’s weaknesses.”

Perhaps, but I’m troubled that the open-ended nature of the law’s language could invite abuse. Also, do we really want to open the door into deciding who is and isn’t a “real” Witch? Back in 2010 I made clear my reservations with this law’s revival. 

“It should be stressed that all the accused perpetrators were caught and charged with existing laws against fraud, so why has this little-used witchcraft charge been dug up again? What real purpose does it serve other than to sensationalize, muddy the waters of religious freedom, and create potential problems for ethical practitioners of magic and witchcraft who happen to charge for various services? How long before an otherwise ethical magic-worker gets charged due to a vindictive former client? It doesn’t seem so far-fetched a scenario considering the recent frequency this law is getting invoked.”

Fraud needs to be punished, but in a Canada where the rights of Witches and Pagans aren’t always treated with respect and dignity, do we really want to simply trust that this law will always be used fairly? Laws that create blurry boundaries can be problematic even in the best of times, and I’m uncomfortable with any government body deciding when someone is really a Witch, or if they’re merely pretending.

Jason Pitzl-Waters


  • Pitch313

    It seems likely that, had the UK not put aside its laws against witchcraft, we would not in our numbers be Pagans and Witches here in 21st Century North America. Probably because nobody would have taken the steps they did to grow the movement back then. For fear of being prosecuted by the Crown of doing illegal witchcraft.

    I’m pretty sure that I’d know little to nothing of Gardnarianism (no matter that I am equally sure that I wouldn’t be an adherent of the established and presumably legal religion, whatever it would be).

    But maybe an underground Craft would have prevailed in any case?

    • Well, many of the pioneers of the recent revival (such as Crowley and even Gardner) predate the repealing of our UK anti-witchcraft laws. My understanding is that what they were doing could still technically be prosecuted, but nobody actually got prosecuted unless they were obviously a fraud or (as in the case of Helen Duncan) they revealed things people didn’t want revealed.

  • Lēoht Sceadusawol

    It’s a tricky one. One the one hand, I do applaud the law for combating charlatanry but, on the other, I do not trust my (or any) government to not allow that law to be manipulated for nefarious purposes.

  • At least in the Anglophone world its pretty clear that the end of the Witch Hunts only came about when Protestant Christianity decided to switch gears from (1) claiming that Witches are in league with their “Devil” to (2) claiming that Witches are common criminals perpetrating fraud and other crimes (such as practicing medicine illegally). At least that was how it was seen by the many Protestants who stuck to the Biblical view that Magick is real and its practitioners (regardless of whether their activities are beneficial or harmful) should be put to death.

    In other words, these laws that make “pretending” to be Witch a crime are a seamless continuation of the Christian tradition of criminalizing any form of Magick that is not officially approved by their Church.

    • Lēoht Sceadusawol

      We are seeing a swing back the other way, though.

      • Yes, and leading the charge are the spiritual descendants of John Wesley, who bitterly regretted the ending the Witch Trials.

        • Lēoht Sceadusawol

          War, it seems, is upon us. Whether we want it or no.

          Just need a decent, workable strategy. Preferably before it ceases to be metaphorical.

  • Hecate_Demetersdatter

    I don’t know anything about Canadian law, but the actual language of the statute says it’s illegal to “pretend” to exercise or use witchcraft or to “pretend” to use your occult knowledge to discover something lost or stolen.

    Truth should be a defense to a charge under that statute. So if you really are do exercise or use witchcraft, for example, you’re not guilty. How you’d prove that would be interesting, but I think I could make a pretty good case for most of the Witches I know. Their activities, membership in some groups, participation in social media, etc. would be a good place to start.

    Interesting case.

    • Trying to prove whether or not their beliefs are fraudulent would simply be putting ones spiritual-religious authenticity up on trial. Since half of Pagan legal proceedings masquerade as these kinds of farcical trials, it’s to be expected. But I’d still not like to see a piece of legislation that sets itself out with such an open-ended interpretation.

  • Charles Cosimano

    Of course there is one way for him to prove he is not a fraud and that would be to effectively curse any prosecutor assigned to the case.

  • Isabel

    I’m most worried about clause (b) : undertakes, for a consideration, to tell fortunes

    That one doesn’t say anything about pretending. This could mean that this law considers fortune telling for pay fraudulent by definition, or could be interpreted as such.

    Anyone know anything about how this works out in Canada, in practice?

    • Deborah Bender

      Similar anti-fortunetelling laws have been on the books in many U.S. jurisdictions; the Supreme Court struck them all down a couple of decades ago as an infringement of free speech protected by the First Amendment.

      The Court’s reasoning, IIRC, was that a variety of professionals such as investment counselors and weather forecasters make their living by making predictions about the future and that no religiously neutral distinction can be drawn between them and psychics.

      Z. Budapest famously lost a case disputing her arrest for reading Tarot for money in Los Angeles in the late 1970s, some years before this court ruling came down.
      Statutes and regulations of this kind are inherently discriminatory in enforcement, if not on their face.

      • The problem being that Canada doesn’t have the same protections of free speech (and religious freedom) that the United States has built into our Constitution.

        • Deborah Bender

          I believe that Canada passed a declaration of rights some years ago that has the force of law and contains protections similar to those in the First Amendment to the U.S. Constitution. I defer to the Canadian readers on what application, if any, that declaration would have.

          • The Canadian Charter of Rights and Freedoms, which is linked-to in the article above (in a quote from my blog) offers broad and strong protection for freedom of religion and of expression. As of 1981 it is part of our Constitution. It can be enforced either through the usual court system, or through the human rights tribunal system. Most provinces also have provincial human rights codes as well, and provincial human rights tribunals.

  • I don’t pretend to know the answer, but is there any tradition of Indian and Inuit tribes in Canada that “use any kind of witchcraft, sorcery, enchantment or conjuration”? If so, I wonder how this law would mesh with the existing laws concerning them.

    I disagree with the interpretation that the use of the word “pretending” here implies that everyone who claims to practice witchcraft, etc. is pretending. It merely differentiates between those who are pretending from those who actually are. The problem lies in the fact that the criteria is never defined, and thus is left up to the court.

    I’m all for prosecuting fraud, but I have to concur with Jason that leaving the determination of just who is and is not “pretending” in the hands of the courts to be problematic at best. If read broadly enough, it could even be applied to things as broad as faith healing and channeling dolphins. And no maximum sentence? Yikes.

    • GOPagan I think in that instance, they’d probably be treated as separate entities with various treaties to the Canadian government, with “tribal practices” recognized as distinct from the law, that kind of thing. But that’s just conjecture here.

    • Baruch Dreamstalker

      Regarding your second paragraph: If only some religions are singled out for the “pretence” penalty, this fails the standard of equal treatment under the law (a US formulation that must have Canadian correspondences).
      BTW sorry to be so tardy in response. My computer’s been in the shop and I’m catching up.

  • kenneth

    “Pretending to be a witch” is an absurd, amateurish construction for a law that has some underlying merit. The issue the government is trying to address, or should be concerned with, is fraud and abuse of a client relationship through tactics involving intimidation and manipulation. It is a problem with a much broader scope than witchcraft or fortune telling or any new age practice. It is a potential problem within any religion, and more than that, any relationship in which a paid professional is dealing with people who are spiritually or psychologically vulnerable.

    That’s the real crux of the issue underneath all of this. What sort of conduct should be considered out of bounds or exploitative in the interaction between someone in a personal counseling or spiritual advising role and a client who is investing a very personal and deep level of trust in that person? The principles of ethical interaction can readily be found in laws pertaining to medical and mental health professionals, with some adaptation.

  • Hey there! Canadian witch just pitching in here. The witchcraft law, I believe, is actually a vestigial limb, dating back to 1892 when witchcraft was till a hot topic and people were capitalizing on its fear, of a few hundred years back. When it got around to changing the laws, they kept it, seeing its anti-charlatanry benefits today, although much less so. We’ve actually tried to get them to change it a few times, but to WHAT, we’re not sure; obviously quantifying whether or not the witchcraft in question was “pretend” or not can be a bit of a grey area.

    As for Canada as a country and it’s views on Paganism (referring here to your previous mention of chaplains in prisons, among other Canadian Pagan news of note in terms of the law), we’re a little backward. It seems that the majority of Canadians actually don’t mind Pagans all that much, and it’s the laws that need to catch up. The amount of news articles about bad reactions to Pagan Pride Days, etc is incredibly low in comparison to law/crime articles such as this.

    Perhaps it’s time to try once again for law chage? Just food for thought.

    • The history goes back farther than that. The language was imported from the laws of Great Britain. According to this article [Note: PDF]:

      ‘Ultimately, in the 1730s lawmakers in Great Britain removed the legal prohibitions against witchcraft on the basis that no sensible Christian person would actually believe in such things. It replaced them with laws against pretending to be a witch or to engage in such rituals as “palmistry” and other forms of fortune-telling and occult practices. Punishment for witchcraft was, at one time, “burning” but with the change in offence, the penalty for pretending to be a witch became imprisonment for up to one year and time spent in the pillory.’

      Further discussions of the problematic nature of this section at page 9 of the article.

      • Lēoht Sceadusawol

        Actually, that is not technically correct.

        In 1736, the Witchcraft Act came in, making it illegal to claim that any human had magical powers or was guilty of practising witchcraft.

        It wasn’t until 1951 that practising witchcraft was (effectively) decriminalised, with the introduction of the Fraudulent Mediums Act.

  • I came across the following article just now, and while it deals with exorcism in Italy, I thought there was a passage in there that would be applicable to this story.

    “The Monsignor said he knew of one exorcist who had been seeing up to 120 people a day. … He warned that many worried and vulnerable people were at risk from charlatans. “Magicians demand money; we … give our time, give benediction … all for free. It couldn’t be any other way.””

    Again the notion that if one take’s money for magical practice, one is somehow a fraud. (Of course, it must be nice to not have to worry about a mortgage, groceries, and the like.)


    • And of course there is the fact that the Catholic Church is fabulously wealthy and they rake in huge piles of money from a variety of sources (including a significant cut of US foreign aid $$$ that goes directly into the pockets of Catholic Charities). Meanwhile, the average tarot card reader is hardly getting rich!!

  • An almost exactly-equivalent law was finally repealed in Australia in 2005, after a defendant in an anti-discrimination case attempted to rely on it to avoid charges of inciting religious hatred – his argument was that witchcraft was a criminal offense, therefore it was not an act of religious vilification to condemn it. (The case was settled out of court.)

  • Here in the UK, we are expected to include language along the lines of “for entertainment purposes only” when performing any kind of unverifiable services, just to cover ourselves under the consumer protection laws.

    It’s not a bad compromise, even if Catholic priests are not expected to include the same line every time they hold Mass (we can prove that wine hasn’t turned into blood, after all), because people who pay for those services very rarely do it just to be amused.

    • Imagine if Catholic priests felt compelled to stop and announce that “the following transubstantiation is intended for entertainment purposes only”!

      • Lēoht Sceadusawol

        That would be hilarious.

    • Unfortunately, when one religion’s practises are “entertainment”, and another’s is implicitly “legitimate religion”, that’s not equality, and equal protections cannot be guaranteed when the law mandates that one religion is merely “entertainment”.

  • Catholic priests perform the rite of exorcism in Canada. The archdiocese of Ottowa has an official exorcist (responsible for an average of four “major” exorcisms a year, on average). At least one Canadian priest has been sent to the Vatican’s own official school for training exorcists (the Vatican now has an exorcism hotline – srsly).

    Obviously there is something of a double standard here.

    Of course, if one does protection magic as a business, then one will be subject to the usual laws, regulations and practices of the business community – but that only means that you have to be as honest as a used-car salesperson.

    Caveat daemoniacus.

    (A good source on exorcism in Canada: http://life.nationalpost.com/2011/01/28/qa-the-reality-of-exorcism-for-canadian-catholics/ )

  • kittylu

    You can’t criminalize cracking an egg, Canada is being unreasonable. This is what brujos and santeros do to assess mal de ojo (evil eye). The question should be more what is a reasonable rate for the healers to charge for their cleansing services.

  • Kat

    excellent article that I can’t agree more with

  • GimliGirl

    As a Canadian Pagan who frequently reads tarot to help pay the bills, this part of our Criminal Code frustrates and frightens me. What I do is not fake but proving that in a court of law would be impossible. This is why when reading publicly at events I make sure to protect myself by attaching “For Entertainment Purposes Only” to any signage that I have. I shouldn’t have to protect myself in this way, but I do.

    • It really is akin to “separate but equal” bullshit from the days of racial segregation in the States.

    • Lēoht Sceadusawol

      From a certain point of view, I can get it, in your case.

      Do you have provable, reliable results? If someone goes to you after a prophecy (that is, after all what many think tarot is for) and it doesn’t work out, do they get a refund, or does the ‘for entertainment only’ clause actually protect you from persecution?