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CC s.365 and related case law

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CC s.365 and related case law

Postby FTP » Fri Mar 12, 2010 9:12 am

For those inquiring about the Criminal Code of Canada, the original (unfortunately non-annotated) source can be found at the Department of Justice Website:

http://laws.justice.gc.ca/en/C-46/

Section 365 can specifically be found here:

http://laws.justice.gc.ca/eng/C-46/page ... codese:365

The main fraud charge can be found here, although other sections regarding fraudulent activities are spread throughout the CC:

http://laws.justice.gc.ca/eng/C-46/page ... codese:380

Relevant case law as applied to definitions and application can generally be found in annotated publications of the Criminal Code of Canada.
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Re: CC s.365 and related case law

Postby FTP » Fri Mar 12, 2010 9:12 am

Prior to the current 2009 case, there is R. v. Labrosse (1984), 17 C.C.C. (3d) 283 (Que. C.A.), affirmed (1987), 33 C.C.C. (3d) 220 (S.C.C.). In this case, although the Defendant did not explicitly say to her client that she had the power to predict the future, the Court found that the fraudulent element of the offence arose from the gestures, actions, and words of the Defendant in making the victim believe that the Defendant had the power to predict the future. For those people that do tarot readings, tea leafs readings, rune reads, etc. the offshoot of this ruling is that stating "for entertainment purposes only" may well be no legal defence if the complainant feels that you else wise, even through non-verbal means, communicated that you have the power to predict their future.

The Court further ruled that it was not necessary that there be proof that the predictions were in fact false. And here is the most critical part of the Court's ruling for those that believe s.365 provides special protection to those who consider themselves 'real witches:'

The trial Judge found that it was unnecessary to decide the issue of whether an honest belief by the Defendant in her power to predict the future would constitute a defence to the charge.

Simplified, that means whether you are an outright fraudster, a BTW initiate, an eclectic Wiccan, family tradition witch, aboriginal Canadian, Santerian, Vodoun, Romani, etc., the sincerity or insincerity of your belief does not constitute a defence should you be charged under s.365.
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Re: CC s.365 and related case law

Postby FTP » Fri Mar 12, 2010 9:13 am

It may also be worth noting in the above case that the amount charged by the Defendant for the fortune telling was $15. There was no extortion or excessive bilking of money. To provide context, this was merely an amount of money that would pay for a decent dinner at a mid-to-low range restaurant.

A conviction under s.365 is punishable under s.787(1) of the Criminal Code of Canada:

787. (1) Unless otherwise provided by law, everyone who is convicted of an offence punishable on summary conviction is liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both.
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Re: CC s.365 and related case law

Postby FTP » Mon Mar 29, 2010 11:06 am

From December 10, 2009 in a Toronto Star article:

From January 1999 to October 2009, 38 people in Ontario were charged under Section 365, which deals with fraudulently pretending to exercise witchcraft, sorcery, fortune telling or conjuration.


Jesse McLean is the staff writer that prepared the article. 38 charges under CC s.365 in the last decade is much more than I would have expected. It would be interesting to read the nature of those 38 Ontario charges to see under what circumstances they were issued.
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