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Challenging Criminal Code of Canada s.365

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Challenging Criminal Code of Canada s.365

Postby FTP » Tue Dec 15, 2009 9:24 am

Below is my December 15, 2009 letter to The Honourable Robert Douglas Nicholson,
Minister of Justice and Attorney General of Canada. In this letter I challenge section 365 of the Criminal Code of Canada on the basis of the religious rights protected in Canada under Section 2 of The Canadian Charter of Rights and Freedoms and later supported by the 1985 R. v. Big M Drug Mart Supreme Court of Canada ruling of Chief Justice Brian Dickson. Section 365 is directly discriminatory against religious and cultural groups within Canada that include traditions of witchcraft and divination. I conclude by urging The Honourable Robert Douglas Nicholson to act in removing this problematic section of the Criminal Code of Canada. I will update this posting with any response received.

-FTP


The Honourable Robert Douglas Nicholson
Minister of Justice and Attorney General of Canada
284 Wellington Street
Ottawa, Ontario K1A 0H8

The December 9, 2009 edition of the Globe and Mail included an article regarding a Toronto woman by the name of Vishwantee Persaud who has been charged under section 365 of the Criminal Code of Canada. While the media reported facts of the case suggest that the accused is guilty of fraud, she has been charged under CC 365 for practicing witchcraft. This section of the Criminal Code reads as follows,


"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."


Canada includes minority populations of religious and cultural practices that include witchcraft. Section 2 of The Canadian Charter of Rights and Freedoms guarantees Canadians the freedom of conscience and religion as follows,


"2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association."


Chief Justice Brian Dickson ruled in the 1985 Supreme Court of Canada case R. v. Big M Drug Mart that Canadians have "the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination."

Section 365 of the Criminal Code of Canada specifically targets minority religious and cultural populations in Canada contrary to Section 2 of The Canadian Charter of Rights and Freedoms and the 1985 Supreme Court of Canada R. v. Big M Drug Mart ruling. Beyond being discriminatory in nature, The Criminal Code of Canada has adequate law covering acts of fraud making section 365 redundant. Further, Section 365 qualifies the offence by placing a burden upon Prosecutors to prove that the Defendant "pretends" to hold or practice their religious or cultural beliefs making the law problematic to prosecute and making an issue of the Defendant's sincerity of belief rather than focusing on the act of fraud itself.

For the above reasons, I would respectfully request that the Minister of Justice and Attorney General of Canada act to remove section 365 from the Criminal Code of Canada. This section of the Criminal Code of Canada is discriminatory and contrary to the protections offered to Canadians by law. I look forward to your response.
FTP
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Re: Challenging Criminal Code of Canada s.365

Postby FTP » Mon Feb 22, 2010 7:43 am

Attached below is my follow-up letter of February 22, 2010 to The Honourable Robert Douglas Nicholson regarding the repeal of cc 365.



The Honourable Robert Douglas Nicholson
Minister of Justice and Attorney General of Canada
284 Wellington Street
Ottawa, Ontario K1A 0H8

On December 15, 2009 I sent correspondence to your office, copy attached, regarding the repealing of Criminal Code section 365 on the basis that this antiquated section is a clear and direct violation of The Canadian Charter of Rights and Freedoms in the targeting of ethnic minorities in Canada. I have not yet received a response or confirmation of receipt of my request.

I would respectfully request confirmation of my correspondence on this issue and a response to my request.
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Re: Challenging Criminal Code of Canada s.365

Postby FTP » Mon Mar 08, 2010 9:42 am

Attached below is my March 8, 2010 letter to The Honourable Dominic Leblanc, Justice Critic for the Liberal Party of Canada.

-FTP

The Honourable Dominic Leblanc
328 Main Street, Suite 1
Shediac, NB
E4P 2E3

As the Liberal Party Critic for Justice, I would ask your assistance in repealing Criminal Code section 365, Canada's last remaining anti-witchcraft law. This antiquated section of Canada's Criminal Code is contrary to The Canadian Charter of Rights and Freedoms in that it targets minority cultures within Canada's culturally-diverse population where existing sections of the Criminal Code adequately cover acts of fraud without including the religious and cultural beliefs of the Defendant.

Please find attached my December 15, 2009 and February 22, 2010 correspondence to The Honourable Robert Douglas Nicholson. No response has yet been received from the office of the Minister of Justice and Attorney General of Canada. Included in the original letter are the legal grounds upon which I would ask that this section of law be repealed in treating Canada's aboriginal and other minority groups with fairness before the Courts.

I look forward to your response and may be contacted at the above address and telephone number should you have any questions.

Sincerely,
FTP
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Re: Challenging Criminal Code of Canada s.365

Postby Ayana Owl » Sat Mar 13, 2010 7:34 am

This is fascinating.

In Britain our last Direct Witchcraft Law was repealed in 1951. I'm really surprised that a forward-thinking country such as Canada would still have such an active statute in it's books.

That being said, here in Britain we only obtained 'real' freedom to practice any religion therough the European Courts in 2003, and recognition that religious discrimination was separate from Ethnic discrimination in 2008. there are still instances of religious discrimination, but at last we here in Britain can now take action against it legally.

Suggestion for you. Over here if we have an injustice to protest, an individual can get his or her MP to intervene on their behalf. As you are not getting replies, could you not ask your MP to lean on them for you? After all, the public voted him or her into office, you can vote them out too! Worth a try.

Cheers, Ayana
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Re: Challenging Criminal Code of Canada s.365

Postby FTP » Tue Mar 16, 2010 8:54 am

That is good advice. If you would like to mail or email in the pre-written letter to the Canadian Government, I'm sure that it wouldn't hurt to have international voices arriving on the matter.

Section 365 was written before the Canadian Charter of Rights and Freedoms (1982). There is a mistaken belief evening within the Canadian Wiccan/Pagan communities that s.365 actually provides protection to those who consider themselves 'real' witches compared to others who they feel the Court will see as 'false' witches. Unfortunately, the Court simply sees anyone claiming to practice "any kind of witchcraft, sorcery, enchantment or conjuration" as "pretending." Part of repealing s.365 is dealing with the Canadian Government and part is public awareness within the Pagan/Wiccan and other effected communities.

Canada does have precedent cases for 'reasonable accomodation' in matters such as employment equity and housing issues. The Criminal Code of Canada however does not extend religious convictions as being a defence to criminal charges. I do agree that it is not only surprising, but also embarrassing to see this law still on our books here in 2010 Canada.
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Re: Challenging Criminal Code of Canada s.365

Postby FTP » Tue Mar 30, 2010 12:04 pm

The following is a letter dated March 30, 2010:

The Honourable Robert Douglas Nicholson
Minister of Justice and Attorney General of Canada
284 Wellington Street
Ottawa, Ontario K1A 0H8

I have not yet received a response from your office to my correspondence of December 15, 2009 and February 22, 2010 regarding the repeal of Criminal Code of Canada section 365. I respectfully ask for a confirmation of receipt of both letters and a response regarding repealing CC s.365.

Canada stands on the global stage as a leader in human rights and equality. This antiquated law was written approximately a century before the Canadian Charter of Rights and Freedoms and specifically targets minority cultures containing practices referred to derogatorily as 'witchcraft.' It is important to note that such practices are generally identical or similar to those as practiced in more mainstream religions and cultures. The Criminal Code of Canada has ample law covering acts of fraud that do not bring the Defendant's cultural beliefs into the consideration of the Court. From January 1999 to October 2009, 38 charges were laid in Ontario alone under this section of law.

I respectfully ask that you in your official capacity act to repeal this inequitable and discriminatory law.
FTP
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Re: Challenging Criminal Code of Canada s.365

Postby FTP » Tue Mar 30, 2010 12:12 pm

A second letter dated March 30, 2010:

The Honourable Dominic Leblanc
328 Main Street, Suite 1
Shediac, NB
E4P 2E3

I have not yet received a response from your office to my correspondence of March 8, 2010 regarding the repeal of Criminal Code of Canada section 365. I respectfully ask for a confirmation of receipt of my correspondence and a response regarding repealing CC s.365.

Canada stands on the global stage as a leader in human rights and equality. This antiquated law was written approximately a century before the Canadian Charter of Rights and Freedoms and specifically targets minority cultures containing practices referred to derogatorily as 'witchcraft.' It is important to note that such practices are generally identical or similar to those as practiced in more mainstream religions and cultures. The Criminal Code of Canada has ample law covering acts of fraud that do not bring the Defendant's cultural beliefs into the consideration of the Court. From January 1999 to October 2009, 38 charges were laid in Ontario alone under this section of law.

I respectfully ask that you in your official capacity act to repeal this inequitable and discriminatory law.
FTP
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Re: Challenging Criminal Code of Canada s.365

Postby FTP » Tue Mar 30, 2010 12:50 pm

March 30, 2010 correspondence to Glen Pearson, Member of Parliament for London North Centre asking his assistance in the repeal of CC s.365:

Glen Pearson
Member of Parliament for London North Centre
768 Maitland Street
London, Ontario
N5Y 2W3

Mr. Pearson,

I would like to seek your assistance as my London, Ontario MP in repealing Canada's last remaining anti-witchcraft law. I understand that you have a background in human rights work in Sudan that I hope will kindle a passion for seeking the repeal of this antiquated and discriminatory law here in Canada.

From January 1999 to October 2009, 38 charges under this section of law were issued in Ontario alone. Approximately a century before the Canadian Charter of Rights and Freedoms, Criminal Code section 365 was put into effect stating that,

"Pretending to practise witchcraft, etc.

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.

R.S., c. C-34, s. 323."

Section 2 of The Canadian Charter of Rights and Freedoms guarantees Canadians the freedom of conscience and religion as follows,


"2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association."


Chief Justice Brian Dickson ruled in the 1985 Supreme Court of Canada case R. v. Big M Drug Mart that Canadians have "the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination."

The term 'witchcraft' is often times used in a derogatory manner towards the beliefs and practices of minority cultures. Those traditions are generally identical or similar to those practiced by more mainstream religions or cultures. Examples include a Native Canadian healing ceremony versus a Pentecostal laying on of hands, or a Catholic lighting a prayer candle to a saint versus a Wiccan lighting a prayer candle to a Greek god. There are no corresponding laws that specifically target the practices of mainstream religions as being fraudulent, thereby making s.365 specific in discriminating against Canadians of minority cultures.

The Criminal Code of Canada has adequate law covering acts of fraud making section 365 redundant. Further, Section 365 qualifies the offence by placing a burden upon Prosecutors to prove that the Defendant "pretends" to hold or practice their religious or cultural beliefs making the law problematic to prosecute and making an issue of the Defendant's sincerity of belief rather than focusing on the act of fraud itself. By placing the Defendant's personal beliefs before the Court rather than any actual act of fraud, minorities are vulnerable to judicial bias that a Defendant from a more mainstream culture would not be exposed to the liability of.

I have written to both The Honourable Robert Douglas Nicholson (Minister of Justice and Attorney General of Canada) and The Honourable Dominic Leblanc (Justice Critic for the Liberal Party of Canada). I have not yet received a response from either party.

As my Member of Parliament I ask for your assistance in this matter. I can be reached via this email address, my above home address, or xxx-xxx-xxxx during the evenings.
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