Obituary - Gerald Le Dain

DRUG COMMISSION DEFINED JURIST'S CAREER

An amazingly prescient inquiry Judge Le Dain headed into the
non-medical use of drugs called for the decriminalization of the
simple possession of marijuana -- in 1973.

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.

Mr. Le Dain was already an accomplished legal scholar and would later
serve on Canada's highest courts. But his name will forever be linked
to the job he undertook at the behest of the federal government on
that May day in 1969.

At the time, Canada was grappling with a new and -- for those in
authority -- deeply disturbing phenomenon. Like their peers
elsewhere, hundreds of thousands of young Canadians were
experimenting with recreational drugs, including marijuana, LSD and speed.

Use of cannabis, in particular, was exploding. In 1966, fewer than
80,000 people in Canada had tried the drug. But by the end of the
decade, 10 times that number had used it at least once.

The federal government responded by appointing Mr. Le Dain, then dean
of Osgoode Hall Law School, to head a five-person commission of
inquiry into the non-medical use of drugs. It was swiftly dubbed the
Le Dain commission.

The commission was 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. It was also directed to report on why such
drugs were becoming popular and recommend how the government could
address the problem.

The commission held 46 days of public hearings, travelling to 27
cities and 23 university campuses. It heard from 12,000 Canadians,
including many young drug users. Between 1970 and 1973, it issued
four lengthy reports. Among other things, it called for lighter
sentences for most 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 grossly excessive and disproportionate to any harm
marijuana's use might cause. Moreover, the number of people being
convicted had doubled annually between 1967 and 1971, wreaking havoc
with the lives of a growing number of young Canadians.

Even so, the law was being widely flouted, catching only about one
per cent of marijuana 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.

Arnold Trebach, founder of the Drug Policy Foundation in the U.S.,
says the impact of the report was "stunning.

"It was the first in then-recent history to take a thorough scholarly
approach to the subject of drug use, particularly dealing with
marijuana," Mr. Trebach writes in an appreciation posted online.

Gerald Eric Le Dain was born in Montreal on Nov. 27, 1924. He served
as a gunner with the Canadian army from 1943 to 1946, seeing action
in Holland and Germany.

While attending Khaki University in England in 1946, he met Cynthia
Emily Roy when both were participants in a school debate. They
married in 1947, remaining together until her death in 1995.

They had six children -- five daughters and a son -- but their life
was marked by tragedy. One daughter, Jacqueline, died in a car
accident in 1975. Another, Catherine, succumbed to pneumonia in 1998.

After returning to Canada, the thoroughly bilingual Mr. Le Dain
enrolled in McGill University, graduating with a law degree and
winning a gold medal in 1949. During the 1950s and early 1960s, he
practised law in Montreal, advising Quebec governments on
constitutional matters, and taught at McGill.

He became dean of Osgoode Hall Law School in Toronto in 1967, a
position he held for five years.

Simon Fodden, a professor emeritus at Osgoode Hall, recalls Mr. Le
Dain as a warm, encouraging and kind colleague in a comment posted at
slaw.ca. "He was, too, a man of passions," Mr. Fodden writes. "And
accordingly, he had a temper that could flare."

Despite the heavy career demands on him, Mr. Le Dain was a "great
dad," says his son Eric. "He worked very hard, but the great thing
was that he worked from home, so he was always there to participate
and get out and play.

Mr. 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.

Though regarded as a moderate liberal, Mr. Le Dain didn't believe in
labelling judges. "Judges don't come to each case with a
predisposition," he once said. "They look at each case and try to do justice."

Mr. Le Dain exemplified that approach in his own rulings, says Ed
Ratushny, a University of Ottawa law professor. "He was a very
conscientious judge. He agonized over decisions and worked very hard
at getting them right."

In the late summer of 1988, Judge Le Dain suffered a major depressive
illness and was hospitalized.

Chief Justice Brian Dickson quickly concluded that Mr. Le Dain's
health would not allow him to resume his duties, and so advised the
ailing judge's wife, a "precipitous action" that authors Robert
Sharpe and Kent Roach say was bitterly resented by Mr. Le Dain, his
family, and some former court colleagues. "They thought that Le Dain
should have been given time to recover."

Mr. Le Dain's forced retirement on Nov. 30, 1988 was unfortunate,
says Mr. Ratushny, "because it prevented him from reaching his full
fruition as a judge." He was just 64 when he left the court, and
never worked again.

Eric Le Dain says his father was most proud of the clarity of his
judgments, "the fact that what he wrote would stand the test of time
and review.

"He was very effective as a teacher, judge and parent, perhaps
because he could isolate the crux of an issue and bring clarity to
the complex, and that worked in all three areas."

Mr. Le Dain was made a companion of the Order of Canada in 1989.

Mr. Le Dain's funeral will be held Friday at 2 p.m. at Christ Church
Cathedral, 439 Queen St. Visitation is tomorrow from 2 p.m. to 4 p.m.
and 7 p.m. to 9 p.m. at the central chapel of Hulse, Playfair &
McGarry, 315 McLeod St.