Doré, Proportionality and the Virtues of Judicial Craft

Although the Supreme Court of Canada’s reasoning in Doré makes it difficult to categorize in terms of the standard positions in the proportionality debates, it is open to challenges that are directed at the precision, coherence and accuracy of the reasoning. In the first part of the paper, the author articulates these challenges. In the second part, the author shows in detail how the reasoning in Doré departed from the standard academic debates about the concept of proportionality, but argues that when the Court engaged a cognate set of debates, its reasoning was unconvincing. In the author’s view, the Court could have profitably avoided these debates and focused instead on (1) crafting a decision that avoided the pitfalls identified in the first part of the paper; and (2) evaluating the consequences of its reasons. The paper begins by setting out the facts and reasons in Doré. The concerns raised in the first two parts of this paper address questions of judicial craft, and the paper concludes by suggesting that the reasons of the Court would have been stronger if they had focused on these questions and not on academic debates