David Butt is a Toronto-based criminal lawyer and former prosecutor.
A month after announcing that he planned to retire in September and days after going missing, prompting a police bulletin asking the public to help find him, Supreme Court Justice Clément Gascon announced this week, bravely, that he suffers from mental-health issues. “For over twenty years, I have been dealing with a sometimes insidious illness: depression and anxiety disorders. This is an illness that can be treated and controlled, some days better than others,” the 59-year-old wrote. “I can neither explain nor justify what I understand to have been a panic attack, and I wish to apologize most profusely to all those who suffered as a result.”
His searingly honest and brave acknowledgement of his illness was received as such revelations should always be: with compassion, warmth and unqualified support by most everyone, including his Supreme Court colleague, Chief Justice Richard Wagner. A top aide to the Chief Justice assured the media that this wouldn’t affect Justice Gascon’s ability to continue on the bench.
But there was a time, not so long ago, that this wouldn’t have been the case.
In 1984, Gerald Le Dain was elevated to serve as a justice on the Supreme Court. He was a brilliant man – an accomplished scholar, the dean of Osgoode Hall Law School, a killer constitutional lawyer in Canada’s highest courts. He was a far-sighted commissioner, too; he recommended the decriminalization of cannabis decades before it actually happened. Mr. Le Dain was Pierre Trudeau’s final appointment to the Supreme Court, and he couldn’t have made a better pick.
Four years later, he was working hard as the author of the Supreme Court’s decision in the momentous case around Bill 101. Dealing with language rights in Quebec, it was not only a precedent-setting legal decision, it would have to be a masterful bit of statecraft as well, given how French and English language issues had been – and, as evidenced by the contemporary debate over the Coalition Avenir Québec’s Bill 21, continue to be – a central part of the making and maintaining of the Canadian federation. I had the privilege of serving as Mr. Le Dain’s law clerk that year, offering research support and analysis as he honed his reasons for judgment.
But when the Bill 101 judgment was almost done, something seemingly simple happened: He took ill. Unfortunately for Mr. Le Dain, however, his illness was anxiety and depression, and it was 1988. Mr. Le Dain’s wife, Cynthia, appealed to then-chief justice Brian Dickson to give him time off; Mr. Dickson gave him no choice but to resign.
That Mr. Le Dain had nothing more than a highly treatable illness didn’t matter. That he retained his full intellectual vigour didn’t matter. That he had just completed one of the decade’s most significant pieces of judicial reasoning didn’t matter. He had to be gone, and the reasons why could not be made public, lest it taint the reputation of the court. And not only was he forced to resign, but his carefully crafted decision in the Bill 101 case was released to the public without any attribution to him. A comparison of his drafts confirms that approximately 95 per cent of the final judgment was his work. Yet, in the publicly released version, beside his name was an asterisk stating Mr. Le Dain “took no part in the judgment” – bald fiction from the highest court in the land.
Mr. Le Dain’s forced resignation punctured his soul, and his life slowly ebbed out. While he retained his sharp intellect, he never worked again.
Today’s Supreme Court is fully aware of Mr. Le Dain’s unconscionable forced departure. The CBC’s Bonnie Brown laid it all bare in a 2017 radio documentary, One Judge Down. And, to the Supreme Court’s great credit – although it has never formally apologized to Mr. Le Dain’s family – it demonstrated in its response to Justice Gascon’s illness how unambiguously well it has learned from past mistakes.
This story of a dark past and a commendable present around mental illness at the Supreme Court resonates far beyond lawyers and their ilk. Strikingly similar illnesses suffered by two judges decades apart teach us all with clarity both how to, and how not to, support those afflicted with mental illness. Mr. Le Dain deserved what Justice Gascon received.
Both men rose through the judicial ranks to the pinnacle of their professions because of their talent and effort. Both should be recognized and celebrated for their accomplishments. For both of them, the illness they bore is just a fact, and an invitation to show compassion and understanding – and not disparagement.
And the same is true for everyone in any field of endeavour who happens to have a mental illness. If the highest court in the entire country can at last recognize just how wrong it is to stigmatize and punish its members just for being ill, hopefully so can everyone else.