[UPDATE: Documentary now available online here.]
Lawyers should tune into The Sunday Edition on CBC Radio this weekend to listen to a documentary that Talin Vartanian , a produce of the Sunday Edition, stated will “reveal what happened to one of the greatest legal minds of the country.”
The documentary is called “One Judge Down” and is about former Supreme Court of Canada Justice Gerald Le Dain. Justice Le Dain is best known in the public for the 1973 Le Dain Commission of Inquiry into the Non-Medical Use of Drugs, which was far ahead of its time in recommending the decriminalization of marijuana. But, it is what the public doesn’t know about Justice Le Dain's legal career that is far more interesting and unfortunately distressing.
CBC’s synopsis of the documentary:
After serving for 9 years on the Federal Court of Appeal, Le Dain was nominated to the Supreme Court of Canada by Trudeau (Sr.) in 1984, where he served for just four years. Then, at age 63, he decided to resign...abruptly. At least, that's what people thought.
In fact, the Chief Justice at the time, Brian Dickson, demanded Le Dain's resignation.
It happened after Le Dain's wife, Cynthia, asked Dickson for some time off for her husband. He'd been struggling with his caseload, and had fallen into a depression. But instead of granting a leave, Dickson decided that Le Dain's days on the bench were over.
Many of those who knew about it at the time -- judges, lawyers, law professors and family members -- have kept quiet for almost thirty years. And many are highly critical of the way the Chief Justice treated Gerald Le Dain.
In our documentary, those closest to Le Dain are now speaking out on his behalf. They include Claire L'Heureux-Dubé, 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 who served as a Supreme Court clerk; McGill law prof Richard Janda, also a court clerk under Le Dain; and Caroline Burgess, one of Gerald Le Dain's daughters.
The producer of this story is Bonnie Brown, who has been an award-winning documentary and news producer for the CBC for about twenty years. She also has a law degree from McGill.
This should make for an interesting listen and will hopefully address an important subject: mental health and wellness in the legal profession. While some strides have been made in recent years, there is still a need to confront the mental health stigma that exists.
"One Judge Down" will be published on CBC’s web site on the evening of January 12th and will air on The Sunday Edition January 14th.
On February 27, 2018 I attended a presentation by Justice Robert Sharpe discussing the life of Chief Justice Brian Dickson (Justice Sharpe, along with Kent Roach wrote a book about Dickson called "Brian Dickson: A Judge's Journey") at a program hosted by the Osgoode Society of Canadian Legal History.
During question period, after a 40 minute talk by Justice Sharpe, a member of the audience asked Justice Sharpe about the documentary "One Judge Down" noting that he thought perhaps the documentary was a bit one-sided and if Justice Sharpe had any comments to make regarding Dickson's actions.
Justice Sharpe stated that he had been contacted by the producer, Bonnie Brown, but that instead of participating in the documentary he referred her to his account of the resignation of Justice Le Dain in his book. He stood by what was in his book. Justice Sharpe was clear that it was just a sad, horrible situation, and that Dickson followed the law and did what he had to do. He explained that after Le Dain was "severely disabled" for three months, Le Dain would have been asked to resign as the Supreme Court just could not function with less than nine judges for a long period of time, according to the law (Justice Sharpe did not refer to which law). Dickson, however, went to the Minister of Justice and asked for an extension for Le Dain for another month. Then when Le Dain still could not sit as a judge, Dickson went back to the Minister of Justice for another extension. It was at this point that Le Dain resign.
Following this explanation, the next question came from Bonnie Brown herself who was in the audience (unbeknownst to I assume everyone, but clearly to Justice Sharpe). Bonnie questioned Justice Sharpe's account saying that his reference to the months and the extension request etc. were not in his book and that she would have liked to have heard about this for the documentary. She also questioned Justice Sharpe's dates and timing as the three months, plus one month, plus one month, did not match with the recollections of the Le Dain family. Justice Sharpe replied that this information was in his book and that not everyone is remembering it the same way and may not be recalling the time correctly.
Question period was then over.
As both of the key players are no longer alive and able to give their versions of the events, perhaps we will never truly know what occurred. All I know is that this story has brought a lot of attention to the struggles of mental illness and how it affects the legal profession. The take away from all of this is that we can all do a little bit better, and if we do not have the tools in place, or are unaware of how to help others with their illness, we can and must educate ourselves.
Erin C. Cowling is a freelance litigator, researcher & writer at Cowling Legal Freelance and President and Founder of FLEX LEGAL, a network of freelance lawyers.