Justice David Stratas of the Federal Court of Appeal gave an excellent talk at the Canadian Constitution Foundation’s Law and Freedom Conference on January 8, 2016. The title of his keynote address was “Reflections on the Decline of Legal Doctrine.” It can be viewed here.
The address focussed primarily on constitutional and administrative law. In Justice Stratas’s view, judges and academics too often take a results-oriented approach to the law, rather than rigorously applying legal doctrine. This lack of attention to doctrine leads to uncertainty and inconsistency, and ultimately means that our courts will be less equipped to protect the rights and freedoms of Canadians in the face of some new crisis. As Justice Stratas put it to the attendees, should Canada ever be gripped by some form of threat or disorder, leading the government to abridge the civil liberties of many Canadians, do we want the judge deciding the constitutionality of the government’s action to be able to turn to a body of constitutional law “based on fundamental principles, consistently applied over decades” – in other words, “settled legal doctrine” – or do we want the judge deciding the issue based upon “her or his own worldview?”
Justice Stratas stated at the outset that he would not be making the “beige” speech – a non-controversial and often platitudinous address that judges have sometimes been known to offer at conferences. And while his address was certainly powerful and provocative, it was also entirely non-partisan and highly nuanced. I would strongly recommend watching the address on YouTube and the question/answer period that followed.