I've been looking at some of the recent cases brought under the Canadian federal law that bans the practice of witchcraft (Canadian Criminal Code. RS 1985. c. C-46 §365). They are extremely interesting. The most recent one that I can find is that of Yacouba Fofana, aka Professor Alfoseny, arrested back in April, 2014, on charges of fraud and yes, witchcraft, under the current statute. Now, the fraud count convictions can bring serious time, but prosecutors are apparently beginning to bring the witchcraft charges in order to hold suspects until they can gather evidence (at least that's what I can determine from media coverage). Conviction on a witchcraft charge is a misdemeanor--what Canadian law calls a summary conviction. I love Commonwealth legal language. It's so elegant. But I digress.
As I say, Mr. Fofana's arrest and conviction are only among the latest in a series. In December, 2014, Toronto police charged a Spanish language newspaper publisher with violating the law. According to the article I link to here that describes this defendant's arrest and detention, the code provision is related to those English laws that used to send "accused witches" to "burn at the stake." Skipping over the notion that "accused" persons went directly to their doom (even in medieval times, the courts paid due deference to trials and convictions before dispatching defendants to the Great Beyond), those sentenced to die for witchcraft didn't die at the stake. They were hanged. On the continent, however, yes--they were burned.
I have some disagreements with other statements in the article. Rather than go through them specifically, I'll just run through the history of the adoption of the 1735 Witchcraft Act, explain its interpretation, its export to Canada as I understand it, and discuss how the drafters of the Canadian Criminal Code of 1892 pulled the law in effect into that unified document. Sir John A. MacDonald, the great Canadian Prime Minister, led the fight for codification, and the 1892 Code was his monument (although it was completed under Sir John Thompson, a later PM).
Recent research indicates that while Enlightenment thought heavily influenced the MPs who voted for the new Witchcraft Act (9 Geo. II, ch. 5, s. 4), the folks who voted for them (and the unenfranchised) were unpersuaded by the new thinking. Check out writing by Ian Bostridge (Witchcraft and Its Transformations, c. 1650-c.1750, Oxford, 1997, yes the wonderful Schubertian, and how can one person excel in two such different realms?) and Owen Davies (Popular Magic: Cunning Folks in English History, Bloomsbury Academic, 2007) on the persistence of popular belief in witches and witchcraft. What was the meaning of the change in the 1735 Witchcraft Act? They made the claim that one was a witch illegal, because Parliament held through the Act that witchcraft itself--the possibility that one could complete the act--was impossible. The Act also criminalized the accusation that someone was a witch. Thus, no one could claim to be a witch and no one could accuse another of being a witch.
Pretending to practise witchcraft — Every one is guilty of an indictable offence and liable to one year's imprisonment who pretends to exercise or use any kind of witchcraft, sorcery, enchantment or conjuration, or undertakes to tell fortunes, or pretends from his skill or knowledge in any occult or crafty science, to discover where or in what manner any goods or chattels supposed to have been stolen or lost may be found.
This law is essentially the equivalent of that 1735 Witchcraft Act. Here I must make two important points. First, the statute does not allow any defense if the accused admits to the act. Second, the word "pretends" means "claims" or "alleges." It derives from the French word "pretendre," to claim. It does not have the ordinary meaning of "pretends," as in "She's wearing a Hallowe'en costume and pretending to be Glinda the Good Witch from the Wizard of Oz."
The text of the statute remained the same until the recodification of 1953/4, ch. 51, sec. 308. Why, I don't know, but I think it may have been because the UK repealed its Witchcraft Act in 1951, replacing it with the Fraudulent Mediums Act, 1951. Yes, I know the title is vaguely amusing. The Fraudulent Mediums Act provided that one could only be convicted if the government showed that the defendant intended to deceive by "purport[ing} to act as a spiritualistic medium or to exercise any powers of telepathy, clairvoyance or other similar powers" or used some fraudulent device, and accepted some consideration (money or other thing of value). The new UK law was aimed at frauds, not at those genuinely believed in their paranormal abilities, even though they might be self-deluded.
Here's the text of the new Canadian law passed in 1953/1954.
Pretending to practice witchcraft, etc. — 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.
The inclusion of the word "fraudulently" seems to provide a defense for those who genuinely believe in their mediumistic or paranormal abilities. It also places the burden on the prosecution to demonstrate the elements of the crime. Beginning in 1975, Canadian courts began to rule on the provision because defendants began to assert that the word "fraudulently" could offer them a defense. That is, the government had to prove that a defendant intended to deceive (exactly what that eighteenth century Parliament tried to legislate out of existence). In 1975, in R. v Dazenbrook (23 C.C.C. (2d) 252 (1975)), a Canadian judge ruled that a defendantr was not guilty under the statute, holding that fortune telling was not illegal under the law.
Since then, a number of other cases have followed, all holding that the prosecution must demonstrate fraud on the part of the defendant. Nevertheless, Wiccans and others who practice divination or other activities traditionally known as "crafty sciences" as part of their religion are concerned that the Canadian government could use this law to prosecute them. The idea that the government must demonstrate intent in order to secure a conviction does not comfort them, and I understand why. I would point out, however, that in 1982 Canada adopted the Constitution Act. The Canadian Charter of Rights and Freedoms guarantees freedom of speech and freedom of religion under section 2, balanced with section 1:
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.
Now, I am not an expert in Canadian constitutional law. But I think sincere believers should have protection against any accusations brought under this law, even though as I said, section 2 must be balanced with section 1. See for example Syndicat Northcrest v. Amselem  2 S.C.R. 551.
Freedom of religion under the Quebec Charter of Human Rights and Freedoms (and the Canadian Charter of Rights and Freedoms) consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials. This understanding is consistent with a personal or subjective understanding of freedom of religion. As such, a claimant need not show some sort of objective religious obligation, requirement or precept to invoke freedom of religion. It is the religious or spiritual essence of an action, not any mandatory or perceived‑as‑mandatory nature of its observance, that attracts protection. The State is in no position to be, nor should it become, the arbiter of religious dogma.
It seems to me that a sincere believer in Wicca, or a sincere believer in any non-mainstream religious practice that would otherwise be classified as banned under section 365 should be able to mount a defense of genuine belief, should she or he need one.
As an aside, the UK repealed the Fraudulent Mediums Act, 1951 in 2008 in order to harmonize its domestic legislation with the EU Unfair Commercial Practices Directive, EU 2005/29/EC. The UK legislation, the Consumer Protection from Unfair Trading Regulations 2008 are now the subject of some debate in the psychic community. But that's a subject for another time.