"R v. Labrosse" (1987)

R v. Labrosse, [1987] 1 S.C.R. 310.

Labrosse is the only case I'm aware of where a charge under a witchcraft or fortune-telling statute reached a country's highest court.  Unfortunately, it's rather brief and not extremely helpful in understanding the scope of the law.

The case involves a woman who told the fortune of a police officer for her normal fee of $ 15.  She was charged with violating Section 323(b) of the Criminal Code, which states in part that "Everyone who fraudulently . . . undertakes, for a consideration, to tell fortunes . . . is guilty of an offence punishable on summary conviction."  At trial, the fortune-teller claimed that she actually had special powers to tell the future.  The trial judge convicted her nonetheless, stating that he didn't believe that she believed that, and that even if she did believe it, it was irrelevant to the charge.

The Supreme Court was thus asked to decide whether Section 323(b) allowed for a defence of "honest belief."  That is, does a fortune-teller "fraudulently" tell fortunes if he or she sincerely believes they have a supernatural power to do so?  The Court, however, disposed of the case without ruling conclusively on the issue, stating that because the trial judge made a factual finding that "[t]he accused knows full well that she has no basis for her claim to be able to predict what will happen in people's future" then "the defence of honest belief is not open on the facts of this case."

From this, however, (and not having read the trial court's ruling) it's not clear to me that the trial judge actually found that the defendant did not sincerely believe she could predict the future.  His statement that she knows "she has no basis for her claim" sounds more like a finding that she had no logical or evidentiary foundation to support such a belief as opposed to a factual finding that she was lying about her belief.  Thus, the trial judge's ruling was not on point to the question of whether the statute allows for an honest belief defence.  This ambiguity, however, is not noticed or discussed by the Supreme Court.

"Fortune-Telling and Mens Rea"

D. Aikenhead Stroud, Fortune-Telling and Mens Rea, 37 L. Q. Rev. 488 (1921)

Stroud's article addresses what I think is a crucial issue when it comes to regulating fortune-telling and other paranormal or religious practices (such as faith healing, dowsing, cleansing a house of evil spirits, etc.) that involve the exchange of payment for a service in which there is the potential for fraud.  That issue is whether the good faith of the practitioner is relevant; that is, if the psychic medium, fortune teller, exorcist, faith healer, etc., sincerely believes they have a supernatural power and are exercising it to the best of their ability, should this be a defence to a charge under the variety of statutes that have been used to prosecute such individuals in the past?

Stroud's article discusses a then-recent case that squarely addressed the question in the context of the English Vagrancy Act of 1824, which was the law often applied in this context.  The case, Stonehouse v. Masson, [1921] 37 T.L.R. 621, stands for the proposition that the good faith belief of the defendant is irrelevant to a charge of "pretending or professing to tell fortunes" under the Act.  Stroud states that "[t]he real ground of decision was expressed by Darling J., who said he had 'come to the conclusion that the Legislature has decided that fortune-telling and professing to tell fortunes was a fraud, and that it was a deception in itself, and that quite independently of the question whether the person who told the fortune believed that that she could tell fortunes or not.'"  (p. 488-89)

Thus, Stroud (and the Court in Stonehouse) argue that the mens rea requirement of a statutory crime is only to intentionally do that which is forbidden by the statute.  They thus distinguish general mens rea from the concept of specific intent, and Stroud concludes "[w]hat the law prohibits is any profession of occult powers of divination, whether sincere or insincere, and the requirement of mens rea is satisfied by an intentional infringement of that prohibition, without any fraudulent or deceitful intention." (p. 488-89)

This is an old article discussing an old case in the context of a very particular old statute.  Nonetheless, it ties in nicely to the article I'm currently writing on whether criminal bans on witchcraft and fortune-telling comport with modern freedom of religion guarantees.

"Time for Australia to abandon blasphemy laws?"

Several months ago, media network SBS ran a long story on World News Australia Radio titled "Time for Australia to abandon blasphemy laws?"  The story noted that some countries have recently decriminalized blasphemy, while in others, particular where Islam holds sway, blasphemy prosecutions continue.  Brief interviews with experts in the field, including Dr. Helen Pringle (UNSW), Professor Gary Bouma (Monash), and myself are included in the story.

New Egyptian Constitution Approved by Voters

Religion Clause Blog notes that the new Egyptian Constitution was overwhelmingly supported by voters in last week's referendum.  This post on the same site includes a rough translation of some of the religion provisions of the new Constitution.  It establishes Islam as the official religion of the country, but does contain a freedom of religion guarantee.

"To Publish or not to Publish? The Canadian News Media and the Danish Cartoon Controversy"

Gillian Steward, "To Publish or not to Publish? The Canadian News Media and the Danish Cartoon Controversy" in Janet Keeping, et al. (eds), Deal with it!  Free Speech, Ethics and the Law in Canada (Sheldon Chumir Foundation for Ethics in Leadership, 2013).

Steward's article provides a nice summary of the reaction of the Canadian newspaper and broadcast press to the worldwide controversy over the famous Jyllands-Posten Muhammed cartoons.  Steward notes that in Canada, no mainstream media organization was willing to show the cartoons while reporting on the controversy.  Steward provides extracts from editorials by Canadian newspaper and t.v. news stations about why they didn't show the cartoons, and summarizes them nicely:

"The rational provided by television and newspaper executives regarding their decision not to publish the cartoons emphasized respect for religion and other cultures as the main reason.  The discourse reveals that the media executives did not want to offend members of the audience.  It also emphasized Islamic belief that it is disrespectful or blasphemous to publish images of the prophet Mohammed, even though Canada is a secular society.  None of the television or newspaper executives explained why the cartoons had been published in the first place or what issues they raised for citizens of a liberal democracy as [editor] Flemming Rose of the Jyllands-Posten had done when the cartoons were originally published.  Although all the news media executives cited freedom of speech or the press as vital to democracy they opted to give respect for religion a higher priority in this situation.  And yet, in their own code of ethics, freedom of expression tops the list."  (p. 91)

Two small publications, the Jewish Free Press and The Weekly Standard were the only members of the media that did reprint the cartoons, and Steward also includes extracts from their editorials explaining why.

Overall, she concludes:

"In both Canada and the United States freedom of expression did not win the day during the cartoon controversy.  Instead, mainstream media executives employed a different discourse, one which emphasized control, social harmony and respect.  In many ways, it was a discourse that seemed closer to the ideals of Islamic media codes of ethics than those of a liberal democracy.  It was left to smaller, more vulnerable publications to exercise freedom of expression and publish the cartoons." (p. 93)