CBC doc on forced resignation of Justice Le Dain a scathing look at legal profession

Friday, January 12, 2018

One Judge Down, CBC Radio’s revealing documentary about the shocking circumstances surrounding former Supreme Court of Canada Justice Gerald Le Dain’s abrupt resignation from the court in 1988, is both a sorrowful reflection about how even the most enlightened among us treat mental illness and an eye-opener about misplaced values that still infuse the legal profession.

It’s also a very rare insight into the humanity and workings of our Supreme Court.

That said, the story is a simple one: the lesson, however, is a hard one.

In 1988, Le Dain’s wife, Cynthia, asked then Chief Justice Brian Dickson (now deceased) to give her husband, who was suffering from depression that eventually required hospitalization and had been struggling with his caseload, some time off. Dickson’s response was to pressure Le Dain to resign. He did so within two weeks, at age 63 and having served just four years on the court.

Le Dain never talked publicly about the circumstances of his abrupt resignation before his death in 2007.

Now, Le Dain’s friends and family are speaking up. The documentary includes interviews with Claire L’Heureux-Dubé, now 90 years old and the last surviving Supreme Court justice from Le Dain’s era; Harry Arthurs, former president of York University; Justice Melvyn Green of the Ontario Court of Justice; David Butt, now a top criminal lawyer in Toronto and Richard Janda, a McGill law professor, both of whom clerked with the SCC during Le Dain’s tenure; and Caroline Burgess, Le Dain’s daughter and one of his six children.

Le Dain’s capacity for hard work and public service bordered on legendary. He was dean of Osgoode Hall Law School during its transition to York University and served on the Federal Court of Appeal for nine years before Prime Minister Pierre Elliott Trudeau appointed him to the high court in 1984.

Arguably, however, Le Dain’s most enduring contribution came when he headed up the Commission of Inquiry into the Non-Medical Use of Drugs for four years. Its prescient 1973 recommendations foreshadowed the legalization of recreational marijuana use later this year by advocating an end to the war on drugs and decriminalization of pot.

Although he knew little about the drug culture then sweeping the world, Le Dain commissioned 100 research projects in medicine, sociology, law and pharmacology to get the commission up to speed. He also took the commission on the road across the country, hearing out Canadians everywhere, from the little towns to the big cities.

“Gerry was dean of Osgoode when he took on the commission job, but he was always enthusiastic and engaged,” said Arthurs, who was Le Dain’s associate dean and went on to head the law school and then York University. “Even in those exciting moments in the ’60s, he stood out.”

Le Dain’s approach to his caseload on the high court was the same. “He was one of the most intellectually engaged people I ever met, with both intensity and passion for his work,” Butt told the CBC. Others interviewed cite the high standard of Le Dain’s intellectual effort and describe him as someone who “grappled intensely with every expression used [in his judgments].”

According toArthursLe Dain was also a “super-engaged” father and “very committed”to his wifeBurgess recalls that her father would rise at 5 AM and join the family for breakfast after doing a few hours work. Le Dain’s attachment to family made sense to Arthurs: “No one could lead life so intensely without a quiet harbour to come home to,” he said.

There was also disappointment and tragedy. Although his commission’s report was and is still regarded as far ahead of its time and praised as courageous and groundbreaking, the Liberal government shelved it and ignored its findings. When, according to Arthurs, Le Dain’s ambitious plans to revolutionize the teaching of law at Osgoode Hall, “didn’t work out as dramatically as he thought they would, Gerry took it to heart.”

Worst of all, Le Dain’s oldest daughter, a 23-year-old audiologist married just six months, died in 1975 when her car hit a patch of black ice near Williams Lake, B.C. “The circle’s been broken,” Le Dain told his family. It would have made anyone somewhat “fragile,” as Le Dain admitted he sometimes was.

Ultimately, however, it was his commitment and intensity that did him in.

As it turned out, Le Dain joined the SCC just two years after the Charter came into force in 1982. “There was so much to be done, so little guidance and not much precedent for handling Chartercases,”Butt  said. “They created a palpable sense of tension.”

Then the court had to deal with the Bill 101 case relating to French language rights. Le Dain confided in L’Heureux-Dubé that the burden was “enormous,” largely because of its political consequences. She wasn’t totally surprised. “Gerry was not anxious, but always full of ideas, a thinker and always put up his hand to write the most challenging decisions,” L’Heureux-Dubé recalled. “I remember one time he had a folder full of paper on one issue, and I wondered whether knowing too much was a sign of a great mind.”

The final straw may have come in 1988, when the court effectively doubled its workload by moving from hearing one case a day to two. The increased burden didn’t match up well with Le Dain’s meticulousness. “He was not thriving in the environment because of his approach [to the work] and was not producing [judgments] the way other people were producing,” said L’Heureux-Dubé.

Burgess knew Le Dain was working hard. “But this time things were different because he couldn’t sleep,” she said. Cynthia Le Dain urged him to take a break. He became so depressed he asked L’Heureux-Dubé whether he should resign. “Just take a rest, we need you,” she responded. “You have no idea how important you are to the court.”

In September of 1988, doctors diagnosed Le Dain with clinical depression. At that point, his wife went to see Dickson. “The chief justice talked about my father in the past tense, particularly [with reference to] his mind,” Burgess said. “There was no question from the reception of the chief justice that there wouldn’t be any support. No enlightened sense that his condition was treatable and that he would come back.”

Under pressure, Burgess said, her father had no choice but to resign. “What could he have done?” she asked. “Get a lawyer?” Burgess went so far as to call Trudeau, reminding him that he had appointed Le Dain. “I also appointed Brian Dickson,” Trudeau responded.

L’Heureux-Dubé remembers that she and her fellow judge Bertha Wilson were “shocked” by the turn of events. “Le Dain was an exceptional mind. He should have been given time to get back and instead he was forced to resign,” she said. “It was terrible. It always upset me what was done to him. He was an ideal colleague.”

The forced resignation devastated Le Dain and his family. “It was a train wreck that we couldn’t turn around,” Burgess said.

But even from his hospital bed, Le Dain’s focus was ensuring that the cases he had been working on were properly managed. Ironically, none of these cases bore his name as a contributor to the judgment. “What I found really difficult to accept was that the materials [used by the court] were his materials,”  said Richard Janda.

As one of the interviewees,David Butt, acknowledged, the situation was a “historically unique pressure cooker,” which raised the question of how long the court could function with one judge down. “They could have sat with seven judges for a while and hired a bunch more clerks,” Butt said. “There was no humanity.”

So for those for whom the lessons from this tale don’t speak for themselves, there are two questions you could ask yourself.

First, is it any surprise, given the example of the former chief justice, that so much of the legal profession has for so long seen billable hours and an attendant preference for quantity over quality as an important hallmark of merit and advancement?

And second, what chance do the mentally ill have when the celebrated liberal chief justice of Canada, albeit 30 years ago — or perhaps just 30 years ago — chose to punish one of his colleagues for being depressed? Think about how society has, until very recently, treated autistic children.

Burgess told the CBC that her father’s “cruel and unconscionable treatment would never happen today.”

Let’s hope she’s right. After all, great minds, like other minds, get sick. And they also get better. We should too.

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