On the surface, this law looks like the last vestiges of the period of the witch trials: that the Canadian law still implicitly believes in witchcraft. In fact, the reality is quite different. The law is a sign of the Canadian inheritance of the Enlightenment project. This was an 18th-century movement that attempted to eradicate superstition — and the grave miscarriages of injustice of the witch trials that arose from such superstition.
The story goes back to the 16th century.
Attempts to control magic
Magic was not against the law in England until 1542 when Henry VIII made magic a capital offence. Despite being commonly referred to as the “Witchcraft Act,” Henry’s law was overwhelmingly concerned with other kinds of magic practitioners, in particular cunning folk (“folks healers”) and treasure hunters who were usually male. It gave little attention to witchcraft, which in England was typically understood to be a female pursuit and connected to maleficium (doing harm to others).
No one was ever prosecuted under Henry’s Act and it was repealed by his son, Edward VI, in 1547.
Before 1542, in the rare cases when magic practitioners were prosecuted, they were tried in the Church courts. The Church could never impose the death penalty, only public penance. This was the situation again after 1547 until 1563, when Elizabeth I once again made magic an offence.
Like her father’s legislation, Elizabeth’s Act focused on a variety of real magic practitioners and not primarily on witches. But Elizabeth’s Act was never used against its primary targets. Instead it was used in the sporadic witch trials that occurred between it and the second half of the 17th century, when they petered out.
Her act was strengthened by James I in 1604, who believed in witchcraft and gave more explicit attention to witches. Ironically and sadly, almost none of the women and men accused of witchcraft were actual magic practitioners.
Downgrading magic to fraud
By the time these draconian acts were repealed in 1736, there had been no attempts to try witches for 19 years and no execution for more than 50 years. So the repeal was essentially legal house-cleaning.
The act that replaced them formed the foundation of Section 365 of the Criminal Code, the Canadian law now about to be repealed. The 1736 law was driven by Enlightenment sentiments that regarded all magic as false; it downgraded magic to a form of fraud.
This is why the Canadian law prohibits pretending to practise magic rather than magic itself, as the early acts had done. But why make a specific law on magic? Then as now, conventional fraud legislation was more than adequate to cover cases of magical fraud.
The answer is that the legislators regarded magic as a special case, not for legal reasons, but for ideological ones. Under the influence of the Enlightenment, they rejected belief in magic as a superstitious feature of a passing world view. Magic was associated with religious fanaticism that was considered distasteful to sober, modern thinkers.
In fact, they reasoned, tragedies like the witch trials would never have taken place without such belief in magic. For this reason, belief in magic needed to be stamped out by laws like Section 365.
In short, Section 365 is not a remnant of the old laws that held that witchcraft was real. It’s purpose is to attack superstition and the mistaken beliefs that gave rise to the witch trials.
But none of these laws, the old or the new, seem to have been effective in stamping out magic.
The early laws did not stamp out magic
Those accused of witchcraft were almost always completely innocent of magic practices.
In most cases, real magic practitioners were left alone because their community used them, liked them and wanted them around. In the few cases where magicians found their way into court it was mostly because they were believed to have committed fraud, treason, or some other form of social disruption.
The reasons such legislation didn’t work is that people liked their own personal magicians, fortune-tellers or folk healers. There was no general will in the population to prosecute practitioners unless they were patently predatory and disruptive.
In other words, those pre-modern laws to stamp out magic entirely missed their target and didn’t work at all.
Section 365 did not stamp out magic either
Just like in the pre-modern period, the recent uses of the Canadian law have only targeted grievous and patent cases of fraud, while most magic practitioners have gone about their business entirely without interference.
Fraud (in this case, magical fraud) has to involve the loss of money or something of value.
If all magic and fortune-telling is “pretend,” or false, as Section 365 assumes, then newspapers that contain astrological horoscopes, bookstores that sell books on practising magic, local and online psychics, card and palm readers, occult shops, crystal stores and anyone offering an online course on practical magic are all technically magical fraud.
Even Wiccans and other organized groups of modern magic practitioners might fall under the definition of fraud if their members made any financial contributions to their organizations.
In the end, it will be a popular move to do away with a law that most people assume to be last remnant of the laws that made the witch trials possible. In fact, it’s the last remnant of the Enlightenment efforts to combat superstition through law.
Future historians may look back on this moment as a tacit admission by our legislators that, after hundreds years of trying, the supporters of the Enlightenment project have not managed to stamp out magic. The laws inspired by the Enlightenment, along with the broader campaign against magic and superstition, have been a futile exercise.