For years, the Criminal Code has been in need of an overhaul.
As the cornerstone of criminal law in Canada, the Criminal Code, is a large piece of federal legislation officially called An Act respecting the Criminal Law that includes the majority of Canada’s criminal offences, procedures, and punishments. It has been described by provocative and brilliant Osgoode Hall Law Professor Alan Young as “a patchwork quilt of ancient common-law offences, procedural rules, trivial infractions and contemporary offences created in response to a perceived social crisis” or simply – the “bible”. The Criminal Code is intended to be an easy one-stop-shop representing the line where behaviours cross over from acceptable to unacceptable; where unacceptable behaviour warrants punishment by the state which in turn is supposed to discourages these behaviours, bringing the life lesson full circle. In theory, the Criminal Code acts as a guide for our conduct, advising which behaviours must be avoided.
Just as the world is not static, neither can the law be. When the criminal law was first incorporated into one piece of legislation in 1892, it copied a significant portion of proposed English law that went before the United Kingdom House of Commons in 1878 but was never passed. Despite several amendments to the Criminal Code over the years, which created new offences to address modern social problems like impaired driving for example, much of the original criminal law has remained. Of course, the world looks very different than it did in 1878 or even 1892 and laws that were created during those times may not make sense anymore. As such, even despite numerous amendments, the Criminal Code could use, at least, moderate work with some legal experts calling for its complete revision.
On June 6, 2017, Bill C-51 was introduced to amend the Criminal Code in several ways. One of which is by repealing outdated sections that are no longer needed because the social problem they sought to address no longer exists or the social problem can be addressed by another broader provision of the Criminal Code. On December 12, 2017, Bill C-51 received first reading of the Senate. By the end of March 2018, the law still had not been passed, as it continued debate at second reading of the Senate.
One of the outdated sections of the Criminal Code that would be repealed by Bill C-51 is the law against Pretending to Practice Witchcraft, etc under section 365 of the Criminal Code:
- 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.
The origins of section 365 can be traced back to the laws of Great Britain where witchcraft had originally been prohibited outright. The law was later rewritten to prohibit pretending to practice witchcraft which oddly leaves actually practicing witchcraft legal in Canada today. Besides problematically singling out of a particular belief system, the witchcraft provisions have been used to largely target minority cultures and religions. Despite the many years where section 365 of the Criminal Code received very little use (the last reported conviction under section 365 was in Quebec in 1993), charges have been recently lain under this provision to address a growing issue.
In 2009, Vishwantee Persaud was charged with pretending to practice witchcraft after telling a a man that she was from a family of witches and following a tarot card reading, that she was embodying the spirit of his deceased sister and would assist him with his business. The victim provided Persaud with more than $27,000 for unnecessary medical treatments and various business ventures. In August 2010, Persaud plead guilty to four counts of fraud and received a sentence of time served in consideration of the nine months she has already spent in pre-trial custody.
The origins of section 365 can be traced back to the laws of Great Britain where witchcraft had originally been prohibited outright. The law was later rewritten to prohibit pretending to practice witchcraft which oddly leaves actually practicing witchcraft legal in Canada today. In 2012, Gustavo Valencia Gomez was charged with pretending to practice witchcraft, fraud and possession of the proceeds of a crime after accepting $23,000 to treat an ill woman who believed she suffered from a curse. The treatments involved bloody egg yolks, lemon oil, and worms. In February 2013, all charges against Gomez were dropped after he returned the $23,000 to his victims.
In February 2017, Murali Muthyalu (AKA “Master Raghav”) advertised astrology and psychic services through the Sri Gayatri Astrological Center. He accepted $101,000 to exorcise an evil spirit from a client’s ill family member. Muthyalu was charged with pretending to practice witchcraft, extortion and fraud. In April 2017, he pled guilty to one count of fraud and was ordered to pay $67,100 in restitution.
Tragically, the victims were preyed upon for their vulnerability and desperation. These examples illustrate the fact that section 365 is not needed to prosecute fraudulent witchcraft-related behaviours. These behaviors can continue to be prosecuted under the general fraud provision of the Criminal Code. As such, repeal of section 365 by Bill C-51 will do very little from a practical perspective. In fact, as a hybrid offence, the general fraud provisions have the potential to result in a greater punishment as opposed to section 365 which is a summary conviction offense potentially punishable by a maximum fine of $5,000 and/or six months in prison.
You might find yourself asking – so what? If repealing section 365 the Criminal Code has no practical impact, what is the point? Are lawyers just making work for themselves, fumbling around in legal jargon? While skeptics might say yes, one must remember that the Criminal Code is only valuable if it accurately reflects the current state of the law and the joint expectations of the public and state such that it can guide the actions of the people. The intent of including all standards of conduct in one piece of legislation, was to create a tool that the public could use to guide their conduct. Or as Alan Young would say – “At least, that’s the dream.”
In theory, the Criminal Code acts as a guide for our conduct, advising which behaviours must be avoided.
In its current state, Young stated that the Criminal Code is “an abysmal failure” at guiding conduct, it “has a chaotic structure, vague prohibitions and numerous gaps.” It cannot function as a guide for conduct because regular people cannot understand the rules. In addition to the present challenges, new technologies, experiences, and advancements are changing our perception of the world. Just as the world is not static, neither can the law be. As the public’s ideas about right and wrong shift, our law needs to also shift to reflect changing expectations. In the perfect world, shifting expectations would result in simultaneous changes to the law. In reality, changes to the law often occur many years later.
The Government of Canada has been very clear in its intention – the Criminal Code should only be used when all other methods of achieving social control are insufficient or inappropriate. Section 365 of the Criminal Code is not needed to achieve social control. It is a lasting oddity, outdated and unnecessary. Similarly, repeal of section 365 is not necessary, and we could continue to largely ignore it. But this approach is what got us into this position in the first place; any steps towards cleaning up the ghosts in the legal machine is a good thing.
About Kristy Isert
