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Judges and Religious-Based Reasoning: A Response to Ginn and Blaikie

Authors
Publisher
Centre for Constitutional Studies
Publication Date
Disciplines
  • Law
  • Religious Science

Abstract

The Canadian jurisprudence on freedom of religion has tended to focus on the accommodation of religious practices rather than exploring the constitutionality of judicial reliance on religious-based reasoning. A recent article by Diana Ginn and David Blaikie seeks to argue that, in certain circumstances and under certain conditions, it would be acceptable for judges to rely on religious-based reasons in their judgments. Ginn and Blaikie see their recent article as being a continuation of sorts to their earlier piece, "Religious Discourse in the Public Square." While I found their earlier piece to be a persuasive defence of the use of religious-based reasoning in the public sphere, I have serious doubts over the constitutionality and applicability of their argument with regard to judges. It is the purpose of this paper to refute Ginn and Blaikie’s argument and to show that, in Canada, the use of religious-based reasons by judges is likely precluded by decisions of the Supreme Court of Canada.

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