As It Happens

In 1988, another Supreme Court justice opened up about depression — and he got pushed out

Toronto criminal lawyer David Butt calls Supreme Court Justice Clement Gascon "incredibly brave" for opening up about his mental health struggles. Butt was a law clerk for Justice Gerald Le Dain, who also sat on the top court and suffered with depression in 1988.

This week's frank statement on depression by a top court judge reminded some of a similar case in 1988

Supreme Court Justice Clement Gascon, left, and former Supreme Court Justice Gerald Le Dain. (Adrian Wyld/The Canadian Press, Harry Palmer)
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It's incredibly rare for a Supreme Court Justice to speak publicly, so it was remarkable this week when Justice Clement Gascon issued a statement revealing his personal struggle with mental illness.

"For over 20 years, I have been dealing with a sometimes insidious illness: depression and anxiety disorders," Gascon said in a statement Tuesday.

The statement followed his sudden disappearance last week which triggered a police search.

The statement reminded many in Canada's law community of another Supreme Court Justice: Gerald Le Dain. In 1988, Le Dain was forced to resign from the bench, after he revealed his mental health struggles.

Criminal lawyer David Butt used to clerk for Justice Le Dain. Here is part of his conversation with As It Happens guest host Gillian Findlay.

Mr. Butt, when you read that statement by Justice Gascon, what went through your mind?

Well, I had a number of reactions, Gillian. I think the first, most powerful one, is that this is somebody who's being searingly honest. And I give him a ton of credit for that because it's so difficult, particularly in the kind of position he is, to go public with an illness like this.

Of course it's also incredibly brave, but it's also, I think, profoundly progressive that he is willing, in the role that he occupies as a Supreme Court judge, to say "Yes, I do struggle with mental illness. But more importantly, yes I can still do my job."

Former Supreme Court Justice Gerald Le Dain was ousted from his post in 1988. (Supreme Court of Canada Collection)

Have you ever heard a judge let alone a Supreme Court justice speak so openly about something so personal?

No, this is unprecedented, at least in my experience. And indeed within the legal community, there is this cultural norm that we hear nothing from judges except through their judgments, of course, which is critically important, and also occasionally bland after-dinner speeches at legal conferences.

So there is very much a culture of secrecy around the judiciary. And in a certain sense that dehumanizes them.

And so what Justice Gascon has done here is to take that remarkable and timely step forward by saying, "You know what, we're people too. We have difficulties as well, but we still work hard at our jobs."

Gerald Le Dain, third from left, sits as Chair of the Commission of Inquiry into the Non-Medical Use of Drugs​ with members of the commission, circa 1970. (Submitted by the Le Dain family)

It wasn't so very long ago that judges suffering mental health challenges were treated very differently. And you have your own specific experience with what happened with Justice Gerald Le Dain in 1988. Can you tell us briefly what that was?

I was clerking for Justice Le Dain, which is a research assistant for a judge, and he was working on a very important case for the country at the time: the Bill 101 case dealing with English language rights in Quebec.

And of course it was a very stressful decision: there's a lot of statecraft involved, in addition to tough legal questions. And the pressure got to him, and very shortly after his draft of the judgment was completed, he took ill with anxiety and depression, very very similar to what Justice Gascon is suffering.

But it was treated in a very different way. He was ... essentially forced to resign by then-Chief Justice [Brian] Dickson. It was tragic because he remained from his hospital bed at the time engaged in the drafts of the judgment — so fully functional.

But the court would have nothing of any sort of public announcement that any judge who participated in a decision was in the slightest mentally ill.

Criminal lawyer David Butt used to clerk for Supreme Court Justice Gerald Le Dain. (Submitted by David Butt)
Very different times, but by today's standards it was just an appalling act of discrimination based on an illness.

What effect did it have on him once he was forced to resign?

You know, it was like his soul was punctured, and you could just see the air slowly seep out over time.

This was a man who was brilliant. He was extremely accomplished as both a lawyer and as an academic...

He never fully recovered — not from his mental illness, he was bright and engaged intellectually — but never recovered in terms of his confidence at being, frankly, so badly treated.

The chief of the Supreme Court, Richard Wagner, he was commending Justice Gascon for his courage, saying how proud he and his colleagues were of him, and that he had his full support and confidence and he looks forward to seeing them back on the bench this week. 

It's quite a change, isn't it?

It's a dramatic change, and it's hugely gratifying to see that ... at the very least they were certainly, it appears, able to learn the lessons that that kind of mistake cannot be repeated.

Justice Gascon's bravery, and the court's unqualified endorsement of him, is very much consistent with the times. And it's exactly the message that all of us should be embracing, in that people can achieve great heights even with mental illness.


Written by Jonathan Ore with files from CBC News. Interview with David Butt produced by Jeanne Armstrong.

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