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Supreme Court judge known best for pot recommendation
Obituary: Gerald Le Dain- progressive Canadian Supreme Court judge
12-26-`07 | Canada.com | by Don Butler

OTTAWA - Gerald Le Dain, who died last week at 83, was only 44 years old when he was handed the assignment that would make him an improbable counter-culture icon.

In 1969, Canada was grappling with a new and - for those in authority - deeply disturbing phenomenon: young Canadians experimenting with recreational drugs, including marijuana, LSD and speed. Cannabis use in particular, was exploding.

The federal government responded by appointing Le Dain, then dean of Osgoode Hall Law School, to head a five-person commission of inquiry asked to look at all available knowledge about the non-medical use of "sedative, stimulant, tranquilizing, hallucinogenic and other psychotropic drugs or substances," including their effect on users, why they were becoming popular and what the federal government could do about it.

What quickly became known as the Le Dain commission held 46 days of public hearings and heard from 12,000 Canadians. It issued four lengthy reports which, among other things, called for lighter sentences for drug offences, treatment for heroin addicts and warnings about the dangers of nicotine and alcohol. But it was its recommendation to decriminalize simple possession of marijuana that caused the greatest sensation.

The commission concluded that the maximum penalties for cannabis offences were disproportionate to any harm marijuana's use might cause. The number of people convicted for marijuana offences had doubled annually between 1967 and 1971, but the law was still widely flouted, catching only about one per cent of users.

"A law which can only be enforced in a haphazard and accidental manner is an unjust law," the commission declared.

Many of the Le Dain commission's recommendations were too explosive for politicians of the day to embrace. But judges soon started moderating sentences and began giving offenders absolute discharges for simple possession.

"It was an important report transitionally," says Ed Ratushny, a law professor at the University of Ottawa, who calls the commission Le Dain's most significant public contribution. The Le Dain report, he says, "provided a context and a blueprint that, even though not immediately implemented, shone the way to the future."

Gerald Eric Le Dain was born in Montreal on Nov. 27, 1924. During the 1950s and early 1960s, he practised law in that city, advising Quebec governments on constitutional matters, and taught at McGill University. He became dean of Osgoode Hall Law School in Toronto in 1967, a position he held for five years.

Le Dain was appointed to the Federal Court of Appeal in 1975, where he served until Pierre Trudeau named him to the Supreme Court of Canada in May 1984. He was the first Federal Court judge to be elevated to the Supreme Court, and the first judge with a strong background in both Quebec civil law and English common law to serve on the high court.

In their 2003 book about former Supreme Court chief justice Brian Dickson, authors Robert Sharpe and Kent Roach describe Le Dain as a painstaking judge who agonized over every case, not well-suited to dealing with the Court's heavy docket.

The judgment in a constitutional challenge of Quebec's language law, Bill 101, in 1987 was Le Dain's undoing, they write. Given the go-ahead to write the decision, Le Dain struggled to complete it and his other court work, and was eventually hospitalized for depression. Dickson quickly concluded Le Dain would not be able to come back to the court.

Le Dain's forced retirement took effect on Nov. 30, 1988. He was 64 and never worked again.

Le Dain's funeral will be held Friday in Ottawa.

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