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Freedom of Thought in Canada: The History of a Forgetting and the Potential of a Remembering

In: European Journal of Comparative Law and Governance
Author: Dwight Newman1
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  • 1 Professor of Law; Canada Research Chair in Indigenous Rights in Constitutional and International Law, University of Saskatchewan, Saskatoon, SK, Canada, dwight.newman@usask.ca
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Abstract

Canada has a constitutional freedom of thought clause that has received almost no attention. This article considers reasons behind this phenomenon and the future potential of the clause. Unlike many constitutional rights and freedoms in Canada, constitutionalised freedom of thought did not have precedents in prior Canadian human rights instruments. Rather, its precedents are in international human rights instruments, with Canadian drafters choosing to adopt this freedom into Canada’s 1982 Charter of Rights and Freedoms. For a complex set of reasons, almost no Canadian case law has developed on freedom of thought. This article explains that phenomenon in terms of path dependence and problematic features of Canadian jurisprudence and scholarship. It argues that some recent cases offer new hope for development of freedom of thought jurisprudence. It argues that comparative constitutional conversations and emerging contemporary challenges may be significant in the development of Canada’s constitutional freedom of thought guarantee.

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