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| David Postel |
Witch hunt
You will either recall or be surprised to learn that, until 2018, the Criminal Code made it an offence to “pretend to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration.” The same section of the code also prohibited telling fortunes for consideration and pretending, based on one’s “skill or knowledge of an occult or crafty science,” to reveal “where or in what manner anything that is supposed to have been stolen or lost may be found.”
Prosecutions under this section were, for better or worse, uncommon and focused more on phony fortune-telling than curses and spells.
One noteworthy case from Ontario in 1920, R. v. Pollock, [1920] O.J. No. 180, asked whether it was an offence to actually use (rather than pretend to use) one’s skill or knowledge in occult to locate lost property. There, the victim “lost certain oats” and consulted the accused about where he might find them. He paid her 50 cents, and she told him how his oats were stolen and where they’d been taken. She was charged and, in her defence, testified that “from early childhood she had possessed the faculty of seeing the spirits of persons who had died … and of receiving communications from them.” A satisfied customer also testified about how she had once reached out to the accused about a lost ring, which she later found “as a result of a communication imparted by her deceased mother to the accused.”
Ultimately, this evidence proved beside the point. The court concluded that the language of the
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Despite the outcome, the decision was somewhat more open-minded than the 1901 case R. v. Marcott, [1901] O.J. No. 173, where the court held that “no sane man can believe in these times” in the existence of the occult. The accused’s punishment — a suspended sentence — was also far more humane than those rendered in notorious witchcraft cases of past. The court must have found the accused very enchanting.
Outside the criminal law, defamation matters have also considered allegations of witchcraft. A 1974 case from Alberta, Buro v. Southam Press Limited, [1974] A.J. No. 202, came on the heels of a story published by the defendant that the plaintiff had been charged with witchcraft. Dismissing the action on procedural grounds, the court noted how “in this enlightened and somewhat blasé age, expressions such as witch, wizard, witchcraft, witch-hunting and the like, have lost much of their ancient odium and no longer of necessity conjure up images of persons consorting with the powers of darkness or dabbling in the black arts.” Poznekoff v. Binning, [1998] B.C.J. No. 613, a 1998 British Columbia decision, similarly found that accusing someone of witchcraft was not actionable but a “mere term of abuse.”
While the defendants escaped liability in these cases, there’s still a moral to the story here: watch your words, or they may come back to haunt you.
Ghost stories
Do ghosts exist? A 1907 case in the Supreme Court of Canada, Manitoba Free Press Co. v. Nagy, (1907), 39 S.C.R. 340, turned in part on this question. The plaintiff there owned a house in Manitoba that three local newspapers reported was haunted by a ghost who “appear[ed] late at night and perform[ed] strange antics.” He sued for damages, alleging the story was false, after a sale of the property fell through as a result of the publications.
At trial, though the home’s caretaker testified that he had never seen a ghost in the house, he would not swear that the house was ghost-free, and the action was dismissed.
On appeal, first in the Manitoba Court of Appeal, the newspapers argued that the plaintiff had not proven falsity. But the spectre of proving falsehood in a case like this spooked the court, which pointed out that it was “impossible to prove such a matter by evidence in the ordinary way” given that “[t]he very nature of a ghost, as understood by superstitious peoples, is that of a phantom appearing at rare intervals.” So it opted to take judicial notice of the non-existence of ghosts and, in turn, allowed the appeal, holding that “that men of education, such as the reporter and sub-editor, … would know beyond doubt that ghosts do not exist … and, therefore, would know that the publication was untrue.”
The Supreme Court then affirmed, albeit on the grounds that falsity had been proven on the evidence, thus leaving the question of the existence of ghosts unsettled as a matter of law.
One question we do have an answer to, thanks to the 2013 Alberta decision V.W.W. v. Wasylyshen, [2013] A.J. No. 593, is whether ghosts can sue. That case started in 2003 when the plaintiff’s sister (then the plaintiff’s guardian and trustee) filed a statement of claim on the plaintiff’s behalf. The plaintiff’s sister passed away in 2009, and in 2011 the plaintiff was declared a vexatious litigant. The defendants moved to dismiss the plaintiff’s claim in part on the basis of this declaration.
In resisting the motion, the plaintiff “made a startling announcement.” Although she no longer had an interest in the action, she was “acting on the instructions of her deceased sister’s ghost.” Left to determine whether it had jurisdiction to grant relief to a litigant acting on behalf of a ghost, the court drew from an Ontario decision (Joly v. Pelletier, [1999] O.J. No. 1728) where the court dismissed a claim by a self-proclaimed Martian because claims are only available to human beings or corporations, and a Martian is neither. Adopting this reasoning, the court declined to “entertain the directions” of a ghost and made the action, like so many apparitions, vanish — by dismissing it as an abuse of process.
A final case about ghosts, 1784773 Ontario Inc. v. K-W Labour Assn. Inc., [2013] O.J. No. 4097, gives new meaning to the phrase “caveat emptor.” The plaintiff bought a commercial property from the defendant. Two months later, a director of the defendant commented to a newspaper reporter that the house was haunted: “I have heard this from a couple of people — up on the third floor, there is an office up there and they said some days you see somebody moving around inside of there and there is nobody there.” The plaintiff sued, claiming this was a latent defect the defendant had failed to disclose. On summary judgment, the court dismissed the claim because, ghost or not, latent defects are actionable only if they render a property unfit for habitation or dangerous, and there was no evidence that the building was unfit for occupancy. As in Nagy, the court noted the difficulty “as to how the plaintiff would prove the existence of a ghost.” Buyer — and litigant — beware indeed.
The horror!
I’d continue, but if I did, I might be left with an even scarier story to tell: the associate who didn’t hit his hours. Happy Halloween.
David Postel is a civil litigation associate at Henein Hutchison Robitaille LLP, where he has a diverse practice in all manner of contract, employment, estates and tort-related litigation. Postel’s practice has included criminal appellate work, but he now leaves criminal law to his more able colleagues.
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