Freedom of Thought

Psilocybin

Psilocybin is a freedom of thought tool. Psilocybin is to freedom of thought what the printing press was to freedom of expression, what a passport is to freedom of mobility or what a church is to freedom of religion. It allows one to experience the freedom in a more fulsome manner. Psilocybin permits one to experience the freedom in a more fulsome manner.

Psilocybin promotes life meaning, connectivity, cognitive flexibility, spirituality, life-meaning, ego dissolution, empathy, compassion, and mindfulness.^{[1] [2]}

Spirituality and life meaning. Many rank the psilocybin experience as being among the most personally meaningful and spiritually significant of their lives.^[3] Psilocybin can cause those who did not previously identify as spiritual to have spiritual-like experiences.^{[4] [5]} The state of wonder that can emerge in a psilocybin trip is often seen as being very meaningful and spiritual. This occurs not only in people seeking treatment for mental illness, but also in healthy volunteers.^[6]

Connectivity with self, others and with nature. Psilocybin causes people to feel enhanced connections to self, to close family and friends, to those who have wronged them, to strangers, to all humanity, and to nature. Some describe a deep connection to everyone.^[7]

Ego dissolution. Psilocybin reliably engenders ego dissolution. Ego dissolution is a positive thought-related experience characterized by the feeling of being outside of or beyond one’s typical sense of self or perspective. This has been widely found to have salutary effects.^[8]

Mindfulness. Psilocybin promotes mindfulness. Mindfulness is a thought-related skill involving the capacity to attend to the active and present contents of one’s mind.^[9] It allows people to better regulate internal thought processes, especially to suppress or eliminate ones that are counterproductive and self-critical.^[10]

Psilocybin helps healthy people think better.

The traditional and contemporary indigenous use of psilocybin mushrooms for spiritual and religious uses are documented in many sources and writings from ethnographers, anthropologists, ethnobotanists, travelers, and others.^[11]

Tools that Promote Charter Rights are Protected

There has never been a true freedom of thought case in Canada. This means the freedom must be interpreted. Where questions of interpretation arise, a generous, purposive and contextual approach should be applied.^[12] A purposive approach means that the freedom must be understood in the light of the interests it was meant to protect.^[13]

Canadian jurisprudence has rejected an approach to constitutional interpretation focused on the primacy of the text. Not only is considering the text as prime unhelpful in interpreting constitutional guarantees, it could unduly constrain the scope of those rights. Overemphasizing the plain text of Charter rights creates a risk that, over time, those rights will cease to represent the fundamental values of Canadian society and the purposes they were meant to uphold. A purely textual reading severs the constitution from the fundamental values of society.^[14] The purposive approach means that tools or instruments that allow one to experience a freedom in a more fulsome manner must be protected. Tools further the purpose.

In CBC v. New Brunswick (Attorney General), the Supreme Court said that freedom of the press encompassed not only the right to transmit news, but also the right to gather the information. In effect, gathering information is a freedom-of-the-press tool that must be protected under freedom of the press.^[15]

In Denis v. Cote, the Supreme Court said that freedom of the press encompassed maintaining confidential relationships with journalistic sources.^[16] Put another way, maintaining confidential relationships with journalistic sources is a freedom of the press tool.

In Kamal c. Canada (Procureur general), the Federal Court of Appeal held that access to a passport engages "the right to enter, remain in and leave Canada" under subsection 6(1) of the Charter. The court is saying that a passport is a freedom of mobility tool that allows one to more fully experience one’s rights under subsection 6(1) of the Charter.^[17]

In Law Society of BC v. Trinity Western University, the focus was on a covenant that set out behavioral expectations including a prohibition on “sexual intimacy that violates the sacredness of marriage between a man and a woman.”^[18] The evidence established that the covenant helped create an environment in which Trinity Western University students could grow spiritually. Supreme Court found that freedom of religion protected the covenant because it enhanced spiritual growth. Requiring fellow students to sign a covenant was not religious in and of itself, but it was a tool that made it easier for students to adhere to their faith and more fully experience freedom of religion.^[19]

Subsection 10(b) of the Charter provides the right to retain and instruct counsel without delay and to be informed of that right without delay. The case law requires the police to facilitate access to a phone for those arrested or detained. The phone is a subsection 10(b) tool.^[20]

If the purpose of freedom of thought is to protect unfettered thought then a substance that promotes different types of thought must be protected.

Freedom of Thought

A tool to promote any Charter freedom is important, but a tool to promote freedom of thought is especially important. Freedom of thought is described in the Charter as a “fundamental” right. Freedom of thought is vital for

-democratic citizenship;
-the pursuit of truth;
-human dignity;
-protecting the human person’s most sacred possession, their thoughts;
-the exercise of other Charter freedoms; and
-human diversity in forms of individual self-fulfillment and human flourishing; and

Freedom of thought has proven critical in central domains of complex societies. It contributes to the success or failure of associations and communities, and it is a fixation of social and educational institutions. It is important in law, commerce and trade, artistry and innovation, and collective action.^[21]

Thought clearly played a role in the Reformation, in the social and political developments of modernity, and in the emergence of the modern era. Thought has also been crucial in the recognition of individual rights and freedoms, in the expansion of individual-level autonomy, and in the development of democracy. Contemporary constitutional democracies emphasize the value and the importance of individual persons, appreciating that each person is a thinking agent who has prerogative to direct their own life. This is evident in the rights and freedoms afforded to persons, which are predicated on people being agents who can engage responsibly in thought and in action. Democratic citizenship depends on thought, as well, to the extent that citizens are encouraged to form their own ideas, to plan their lives, to make their own decisions, and ultimately to participate constructively in social and political life.^[22]

Following the Second World War, the international community sought to never again allow atrocities like those of that conflict to happen again. World leaders decided to complement the UN Charter with a road map to guarantee the rights of every individual everywhere. The document they considered, and which would later become the Universal Declaration of Human Rights (UDHR), was taken up at the first session of the General Assembly in 1946. The UDHR was adopted by the UN General Assembly on 10 December 1948.^[23]

Article 18 of the UDHR proposed that:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.^[24]

Freedom of thought was named as the first right in Article 18(1) of the UDHR. Freedom of thought was also named as the first right in subsection 2(b) of the Charter.^[25] Freedom of thought was characterized by French delegate, Rene Cassin, as “the origin of all other rights.” The drafting history of the UDHR suggests that some delegates considered free exercise of these faculties as essential for protecting a human person’s most sacred possessions” which enable people to “perceive the truth, to choose freely and to exist.”^[26] Freedom of thought is the most important of all freedoms and the psilocybin prohibition breaches this most important of freedoms.

Under our Charter, all laws can potentially be saved under section 1. Section 1 is, at its core, a threefold proportionality test comparing the law with the law’s objective. The objective of the psilocybin laws, like all drugs, is health and safety. To save a law under section 1, the government must pass three steps. First step, the rational connection test requires the government to demonstrate that it is logical and reasonable to conclude that the psilocybin prohibition will help bring about its objective of health and safety. Second step, the minimal impairment test asks whether the limit on the right is reasonably tailored to the objective or, put another way, is there a less harmful or less drastic means of achieving the objective.^[27] Third, the proportionality analysis directs the court to balance the impact of the law on protected rights against the beneficial effect of the law. This allows the court to stand back to determine on a normative basis whether a rights infringement is justified in a free and democratic society.^[28]

With respect to the first step, prohibiting reasonable access to psilocybin for freedom of thought purposes and driving people underground does not promote health and safety. It undermines health and safety. On the third step, the prohibited benefits of psilocybin are glorious which is balanced against modest harms. It is here that psilocybin’s safety, non-addictive and non-toxic nature matters. In addition, the normative analysis requires us to consider the many more dangerous substances, medicines and activities that are permitted in Canada. In this case, the government will lose at the first and third steps, but the government most obviously loses at the second step, the minimal impairment test. Canadians can access psilocybin for medical purposes pursuant to the Food and Drug Regulations’ Special Access Program. There are various protocols that ensure the process is safe.^[29] Canadians can also access psilocybin as participants in clinical trials. Similar protocols as with medical access are applied to ensure the clinical trials are safe.^[30] If it can be done safely for medical purposes and for clinical trials then surely it can be done safely for freedom of thought purposes. It can be safely used for freedom of thought purposes.

FunGuyz Spokesperson, Samer Akila, will win the case and will legalize psilocybin.

[1] Affidavit of Prof. Nutt, sworn April 29, 2024, paras. 27(a)-(g), pp. 15-17, 46-60.

[2] Affidavit of Prof. Walsh, sworn June 4, 2024, para. 7, p. 141.

[3] Affidavit of Prof. Nutt, sworn April 29, 2024, paras. 27(b), p. 15, 53, 90-92. Affidavit of Prof. Walsh, sworn June 4, 2024, paras. 7, 9, 10, 12, 13, 17, pp. 141-143, 145.

[4] Affidavit of Prof. Nutt, sworn April 29, 2024, p. 53.

[5] Affidavit of Prof. Walsh, sworn June 4, 2024, paras. 9, 10, 12, pp. 142-143.

[6] Affidavit of Prof. Nutt, sworn April 29, 2024, paras. 27(a), p. 15, 46-60.

[7] Affidavit of Prof. Nutt, sworn April 29, 2024, paras. 27(d), p. 15; pp. 43, 49-52 and 92. Affidavit of Prof. Walsh, sworn June 4, 2024, paras. 7, 10, 13, pp. 141-142.

[8] Affidavit of Prof. Walsh, sworn June 4, 2024, paras. 9, 12 and 15, pp. 142-144.

[9] Affidavit of Prof. Walsh, sworn June 4, 2024, para. 15, p. 144.

[10] Affidavit of Prof. Nutt, sworn April 29, 2024, paras. 27(g), p. 15, 46-60.

[11] Affidavit of Prof. McKenna, sworn April 29, 2024, paras. 13-17, 20, 22-24, 27-29 and 37-39, pp. 318-327, 332-333.

[12] R. v. Grant, 2009 SCC 32 at para. 15.

[13] R. v. Big M Drug Mart, [1985] S.C.J. No. 17 at para. 117.

[14] Quebec (Procureure General) c. 9147-0732 Quebec Inc., 2020 SCC 32 at paras. 74-76.

[15] CBC v. New Brunswick (Attorney General), [1996] S.C.J. No. 38 at paras. 24-26

[16] Denis v. Cote, 2019 SCC 44 at para. 46.

[17] Kamal c. Canada (Procureur general), 2009 CAF 21, 2009 FCA 21 at para. 15.

[18] Law Society of BC v. Trinity Western University, 2018 SCC 32 at para. 6.

[19] Law Society of BC v. Trinity Western University, 2018 SCC 32 at paras. 70-73 and 75.

[20] R. v. Taylor, 2014 SCC 50 at para. 25.

[21] Affidavit of Lucas Swaine, sworn April 26, 2024, para. 18, p. 205.

[22] Affidavit of Lucas Swaine, sworn April 26, 2024, para. 20, pp. 205-206.

[23] The Universal Declaration of Human Rights, History of the declaration, https://www.un.org/en/about-us/udhr/history-of-the-declaration

[24] Affidavit of Lucas Swaine, sworn April 26, 2024, para. 47, p. 217.

[25] Affidavit of Lucas Swaine, sworn April 26, 2024, para. 58, p. 221.

[26] United Nations General Assembly Interim Report entitled “Freedom of Religion or Belief”, marked as exhibit D to the Affidavit of Lucas Swaine, sworn April 26, 2024, paras. 1-2, p. 290.

[27] Hutterian Brethren of Wilson Colony v. Alberta, 2009 SCC 37 at para. 53.

[28] R. v. J. (K.R.), supra, note 64, at paras. 58, 77 and 79.

[29] Affidavit of Prof. Walsh, sworn June 4, 2024, paras. 33-34, p. 152.

[30] Affidavit of Prof. Walsh, sworn June 4, 2024, paras. 33-34, p. 152.