'He didn't have a choice': How depression cost Gerald Le Dain his Supreme Court post

By Bonnie Brown, CBC News

Originally published on January 15, 2018

It was, she thought, a routine request.

Cynthia Le Dain, Justice Gerald Le Dain's wife, had gone to the Supreme Court of Canada. It was September 1988 and the court was about to start its fall session. But her husband had been struggling with his workload. He was anxious, not sleeping and had just been diagnosed with depression. She feared he was heading for a breakdown. So she asked Chief Justice Brian Dickson if he could have some time off.

Expecting compassion and permission for a short reprieve for her ailing husband, she was instead confronted with a response that stunned her: Gerald's judging days were over.

Le Dain was a tireless worker, a highly respected judge and had served on the court for four years. But within two weeks, an officer of the court was sent to Le Dain's home to formalize his exit.

"He didn't have a choice," says Caroline Burgess, the couple's daughter. "There was no offer of support. No sense that his illness was treatable, that he could come back. What could he have done? Get a lawyer and fight it? He was ill."

It was devastating to him. His identity — his life, in a sense, had been taken away from him.— Caroline Burgess, Gerald Le Dain's daughter

Burgess says being forced to give up his prestigious and highly public position intensified the severity of her father's illness and that his condition "rapidly became almost critical." He was admitted to hospital soon after.

"It was devastating to him. His identity — his life, in a sense, had been taken away from him."

Le Dain's formal resignation was announced in November 1988. He was 63 years old. He recovered from his illness, but he never worked again.

'A man ahead of his time'

A devoted family man with six children, Le Dain is often described as a charismatic and intense man, with a brilliant mind and a playful sense of humour. He'd had a stellar career as a lawyer, a law professor at McGill University and a professor and dean of Osgoode Hall Law School. He also served nine years on the Federal Court of Appeal before his appointment to the Supreme Court.

Yet he's remembered almost exclusively for his work as chair of the four-year Commission of Inquiry into the Non-Medical Use of Drugs in the early 1970s.

It was internationally renowned for both its ambitious research into recreational drug use, and its recommendations to decriminalize the possession of marijuana and to treat drug addiction as a health issue rather than a crime.

Though ignored by policy-makers for decades, the commission's work has become increasingly relevant as the country moves to legalize cannabis later this year and grapples with a mounting opioid crisis that has already taken thousands of lives.

"I think he was a man ahead of his time," says Ontario Court Judge Melvyn Green, who worked with Le Dain on the inquiry. "There is a sense that Gerry has not been sufficiently respected for his work."

'He could have contributed much more'

Claire L'Heureux-Dubé, who served on the Supreme Court with Le Dain, describes him as a great thinker and an ideal colleague. She says that in 1988, all the judges were struggling with the burden of the new and numerous Charter of Rights and Freedoms cases, and that Le Dain's rigorous approach could be slow.

But she says she was shocked to learn that Le Dain would not be given time off to recover from his illness.

"He was the type of person that should have remained on the court — with his mind, his wonderful ability to decide cases," she says. "He could have contributed much more."

David Butt, a criminal lawyer in Toronto who clerked for Le Dain at the court, calls his treatment "appalling."

He acknowledges that the pressure on the court was intense, but adds, "how long can a court continue to function one judge down? You just sit with seven judges for a little longer. You hire more clerks. There were certainly alternatives, and they weren't taken."

Dickson died in 1998, but his handling of Le Dain's illness is chronicled in a biography co-authored by Robert J. Sharpe, Dickson's executive legal officer at the time.

Sharpe declined The Sunday Edition's request for an interview, but he wrote in 2003 that while it was "a difficult and distasteful decision," Dickson "was persuaded that Le Dain's prognosis was poor" and that the court, facing a large backlog of cases, "simply could not afford to wait" for him to recover.

A question of optics?

But Richard Janda, a professor on McGill's law faculty and Le Dain's clerk in 1988, believes Le Dain's mental illness was a significant factor in the decision. "How it might bear upon the reputation of the court, was something of great concern to the chief justice."

He points out that Le Dain continued to provide input on his outstanding cases during his hospitalization, particularly on the Ford case, which would determine the constitutionality of Quebec's French-only sign law in Bill 101. It had landed at the court in the middle of the Meech Lake crisis, and Le Dain had been wrestling with the decision for months.

He fell ill before it was finished, but Janda says the judgment ultimately released by the court, which struck down the sign law, was based almost entirely on Le Dain's draft.

Reduced to an asterisk

Yet the chief justice marked Le Dain's name with an asterisk on the case, stating that he "took no part in the judgment." At a rare meeting, Janda tried to persuade Dickson to reconsider, in part at Le Dain's request.

As he tells it, the chief justice heard him out, but "in Chief Justice Dickson's view, for Gerald Le Dain to be hospitalized for mental illness and part of a panel that came up with this decision, could give rise to poor public perception of the decision."

Janda disagrees. He believes Le Dain's contribution to the Ford case should be formally acknowledged.

'There was never an apology'

Le Dain died in 2007, and neither he nor his family and supporters ever spoke publicly about the circumstances of his resignation from the court until now.

"That's the way we were brought up — that it was important to protect the integrity of the institution of the Supreme Court of Canada," says Burgess. "We didn't talk about it, not through shame, but because we had the sense that it would reflect poorly on the court. And it does. And you can't get around it."

Burgess and her siblings say they want the record set straight, so that the cloud that hangs over their father's reputation and his accomplishments can finally be lifted.

"I think it was cruel. I think it was unconscionable. There was never an apology," she says. "It never should have happened."

Click 'listen' above to hear the full documentary by Bonnie Brown.

Read a complete transcript of our documentary

Bonnie Brown is an award-winning news and documentary producer with CBC. She has worked for The World at Six, The National and The Magazine.  Bonnie is originally from Winnipeg, is now based in Toronto, and has a law degree from McGill University.

Note: The original version of this story stated that Claire L'Heureux-Dubé was the only surviving judge to serve as a Supreme Court Justice with Gerald Le Dain. That was incorrect.

When Bonnie Brown's documentary, One Judge Down, aired in January, it sparked a national conversation about mental health in the judiciary and in the legal profession.

It also led a group of lawyers and law professors to make a formal request to the Chief of Justice of the Supreme Court of Canada, Richard Wagner, to have Gerald Le Dain's contribution to the Ford case acknowledged in the official court record. The registrar at the Supreme Court, Roger Bilodeau, has told us he will look into this matter, and report back to us. The letter addressed to Chief Justice Wagner is posted in its entirety at the bottom of the page.

This is not the last word on Gerald Le Dain. A collection of essays, edited by the late G. Blaine Baker, entitled "Tracings of Gerald Le Dain's Life in the Law", will be published in November, by McGill-Queen's University Press.