Typical police arrest bulletins are rather dry: so-and-so is 20 something years old and has been charged with the following offences; he will appear in court on this future date.
But twice this week, Ontario cops shared some rather unusual charges, ones thematically appropriate given Halloween is just a few days away and some little boys and girls will undoubtedly trick-or-treat in pointy black hats, brooms in hand.
Halton Police made the first arrest, charging a Milton psychic with a slew of charges including witchcraft and fortune telling. Next, York Regional Police made a similar arrest, charging a woman with witchcraft and fraud as a result of an evil spirit blessing scam that robbed a senior man of $600,000.
In that case, 27-year-old Samantha Stevenson is alleged to have posed as Evanna Lopez, convincing the man that to rid himself of evil spirits in his home, he had to sell it and transfer her the money (these charges have not been proven in court).
In explaining the charge, York Regional Police said the Criminal Code is quite clear that you cannot falsely portray yourself as having fortune-telling capabilities, nor can you pretend to be using witchcraft, enchantments, conjurations or other such sorcery (being a witch is not actually a crime).
The police release then goes on to clarify, “This charge is not connected in any way to any religion.”
That point is worth lingering on, says Jordan Palmer, a Hamilton, Ont.-based lawyer who co-authored a paper on section 365 in 2015, given that the section of the Criminal Code on pretending to practise witchcraft, section 365, is rooted in religion, upholding Christianity, to be precise.
“In the past, it’s been used as a tool of persecution against people who aren’t Christian and that’s certainly the way it still plays out around the world now.”
That two people are facing fresh witchcraft charges this week came as a surprise to Palmer, given Bill C-51 is expected to soon remove witchcraft from the Criminal Code, along with a series of other rather strange provisions.
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So, if this week’s charges aren’t about religion, the alleged crimes can be addressed using the Criminal Code’s fraud provisions, and the Criminal Code witchcraft references are on the way out, why trot out the headline-grabbing witchcraft charge?
“They’re obviously allowed to use any law that’s still on the books, even if it’s in the process of being repealed,” explains Omar Ha-Redeye, a lawyer at Fleet Street Law in Toronto.
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Think about cannabis legalization, he says. Even though the entire country knew for months marijuana would be legal for recreational consumption as of Oct. 17, cops continued to charge people with possession-related offences. Those offences are expected to be eligible for official pardons in the near future.
“They’re well within their rights to do it,” Ha-Redeye says. “But the likelihood of the Crown continuing to prosecute it is lower.”
From a policing standpoint, he says it’s likely a standard arrest tactic: throw as many charges as you can at a suspect in an attempt to worry them into entering a plea. In most cases, Ha-Redeye says, the witchcraft-specific charges don’t tend to go very far.
“What frequently happens is that the Crown will drop many of the charges and they won’t proceed on the witchcraft charges.”
Pretending to practise witchcraft is a summary offence, meaning a convicted person can face up to six months in jail and/or up to $2,000 in fines. It’s not clear how frequently witchcraft charges are laid. In Ontario, there have been only four witchcraft convictions in the last decade, although it’s not clear if those convictions come from four individual fake witches or one fake witch with multiple convictions.
One conviction was logged in 2009, a second in 2010, and two convictions were recorded in 2017. It’s unclear what will happen to Samantha Stevenson, charged with witchcraft by the York Regional Police, or Dorie (Madeena) Stevenson, charged with witchcraft by Halton Police.
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Even if the Crown does decide to proceed with the charges, Ha-Redeye says there’s no real reason they should. Both women are facing fraud charges.
“Fraud generally can already be used,” he says.
“We don’t need to go to these provisions, including witchcraft, which are inflammatory and strange when we have existing provisions in the books.”
Historically, the Criminal Code’s witchcraft provision has been about stamping out anything that runs contrary to Christianity, Palmer says. It’s been used target Wiccans, fortune-telling Roma people, and others who are inclined to tell fortunes or believe, and share their beliefs, in the supernatural.
As such, Palmer says, “the law inordinately affects women or minorities.”
Although most charges are dropped, in the 1990s someone did argue the provision on witchcraft was discriminatory all the way to the Supreme Court, Ha-Redeye says. The Supreme Court did not agree that “a dishonest person who’s basically taking money from someone is not a threat to religious freedom,” he says, but even in that decision, it revealed why the witchcraft provision is really mostly used now for fraud.
That’s why the federal government says it’s working to remove it, along with a slew of so-called “zombie laws,” meaning laws that haven’t been removed from the books but have been deemed unconstitutional by the courts.
In addition to axing the illegal practice of fraudulent witchcraft, Bill C-51, which is nearing its final vote, will remove provisions against challenging someone to a duel, publishing blasphemous libel, issuing trading stamps, possessing, printing, distributing or publishing crime comics, and advertising a reward for the return of stolen property “no questions asked.”
Not everyone thinks the witchcraft provision needs to be removed.
Last year, Peter Van Loan, a Conservative MP who retired last month, said he didn’t see what harm there was in keeping the provisions against fraudulent witchcraft.
“We all chuckle and laugh,” he said during a June Question Period, but, “the concern is, and we have all heard stories like this, that people use these kinds of fraudulent witchcraft powers to persuade people that, for example, if they put $10,000 in an envelope …. he or she will be saved.”
Van Loan bemoaned modernization for the sake of modernization.
“Does that provision, as it exists right now, cause any harm? No. Does it give the police an avenue or resource in the case of those particular unusual offenses? Yes, it does.”
Maintaining the witchcraft provision does harm, counters Palmer.
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It’s a constant reminder of police in the past harassing fortune tellers who weren’t really causing any harm, he says. Between the 1970s and 1990s, Palmer says police would frequently visit Roma people or immigrants from Eastern Europe and get their palms read only to slap them with a witchcraft charge.
Around the world “very bad things” still happen to people accused of being witches today, he says. Some are turned out of their communities, some have their property confiscated, and others pay for the allegations with their life.
“It’s superfluous,” he says, “and the optics of it aren’t good.”
The fate of the two Ontario women charged with practicing fake witchcraft this week has yet to be determined.
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