On June 6, the next step in this process was taken: bill C-51:An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, was tabled in the House of Commons.
While this bill is designed to bring the criminal code closer into line with the Canadian Charter of Rights and Freedoms, it’s what’s buried deeper in the text that makes for interesting reading.
Under the higher-profile sexual assault provisions and other amendments is a list of outdated laws have been deemed obsolete and irrelevant. These are proposed to be stricken from the criminal code with the bill’s passage. They include:
- Challenging someone to a duel (section 71);
- Advertising a reward for the return of stolen property “no questions asked” (section 143);
- Possessing, printing, distributing or publishing crime comics (paragraph 163(1)(b));
- Publishing blasphemous libel (section 296);
- Fraudulently pretending to practise witchcraft (section 365); and,
- Issuing trading stamps (section 427).
Many of these laws are from Canada’s distant past, and holdovers from when Canadian law was codified in 1892. This system was adapted from English law, which inspired Canada at the time.
The bill was introduced by the Minister of Justice and Attorney General of Canada, and includes the removal of Section 365, which is of particular interest to Canada’s Witchcraft and Pagan communities.
Section 365 has been a sore spot for many Witches and Pagans in Canada, and has caused much confusion. It does not make it illegal to be a witch, or practise witchcraft, but it does specify that it is illegal to “fraudulently pretend” to practise witchcraft.
In an interview with The Wild Hunt in April 2017, Kerr Cuhulain, a retired Vancouver police officer, prominent Pagan author, hate crimes investigator and anti-defamation expert stated, “This law has to do with pretending to provide a service for money. The word ‘witchcraft’ in this law doesn’t refer to religion, it refers to magic. The courts really can’t interpret this as a religious law because then they’re crossing into human rights laws, that protect people’s rights to choose their spiritual path.”
While is has been recently reported by other non-Canadian media sources that “it is now legal to practise Witchcraft in Canada”, it is important to note that it is not illegal to be a Witch in this country. Section 365 of the Criminal Code of Canada clearly states that it is the element of pretending or fraud that is the problem:
Section 365 – Pretending to practise witchcraft, etc.
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.
Another important distinction to make is that the bill has not yet passed, but it has just been presented, and is “in committee” and being considered. The law will not be stricken from the books until it is passed by members of parliament.
Charges under section 365 of the criminal code are usually added to the more serious charge of fraud. During a plea bargain, the fraudulent witchcraft charge is typically dropped.
For example, in March of 2017, Murali Muthyalu was charged with fraud over $5,000, extortion and “pretending to practise witchcraft.” He extorted $101,000 Canadian dollars (approximately $75,305) from a desperate parent, who believed that Muthyalu would be able to cure his mentally ill daughter. Muthyalu told the parent that his daughter was possessed by evil spirits, and that for a fee, these spirits could be banished over several healing sessions.
During his plea bargain, the charge of pretending to practise witchcraft was dropped. Muthyalu, a visitor to Canada, was charged with fraud, ordered to pay restitution of $67,100 and ordered to leave the country
Crimes, such as the one committed by Muthyalu, are effectively covered by general fraud law in Canada. This makes the 125-year-old law citing witchcraft redundant.
The penalty for fraud can be a sentence of up to 14 years, whereas the penalty for section 355 (pretending to practise witchcraft) is a summary conviction of six months in jail and/or a fine of $5,000, which is why it is occasionally used in the plea-bargaining process.
For the general Canadian public, bill C-51 is most notable for the sexual assault reforms it contains. In addition, the bill would impose a new duty on the Minister of Justice to table a Charter Statement with every government bill. It will repeal or amend several criminal code provisions in order to better align them with the charter, and/or update them so they continue to be relevant in the 21st century. Finally, it clarifies the sexual assault provisions of the criminal code to reinforce protections for sexual assault complainants throughout the trial process, while preserving trial fairness for the accused. The inclusion of Section 365 is merely a curious and amusing leftover from a bygone era, along with the sections pertaining to dueling and publishing crime comics.
For Canadian Witches and Pagans, particularly those who may charge for their services, the removal of section 365 will potentially bring an end to the cloud of confusion over what constitutes a crime in our country.
No date is set at present, for the passing of bill C-51. The Wild Hunt will continue to update this story.