Interpreting Freedom of Thought in the Canadian Charter of Rights and Freedoms

Abstract

The fundamental freedoms set out in section 2 of the Canadian Charter of Rights and Freedoms encompass a longer list of freedoms than are usually referenced. Recent efforts by various actors to give content to freedom of conscience alongside freedom of religion have drawn on one of the forgotten freedoms of section 2. The present paper seeks to engage with the section 2(b) freedom of thought at a foundational level, setting out a principled approach to interpretation of the section and suggesting some of the range of its possible applications and implications. Part II briefly traces some of the historical lineage behind the freedom of thought guarantee in section 2(b) of the Charter and how that lineage may bear on an understanding of the freedom’s purposes. Part III engages with the limited philosophical writing on the purposes of a constitutionally recognized freedom of thought, notably drawing upon but also seeking to build upon an important article by Lucas Swaine. Part IV builds upon the first two parts to suggest how to frame a legal test for when freedom of thought is infringed by state action. Part V identifies briefly some applications of this test, such as to the types of controversies encountered recently in situations where people have disagreed about implications of potentially compelled expression. The paper suggests that some of the state action in such situations might actually be understood better as involving infringements of freedom of thought and/or that constitutionalists should also recognize intersectional freedom violations.

Keywords: freedom of thought, fundamental freedoms, history of human rights