Pubdate: Thu, 3 Jan 2008
Source: Globe and Mail (Canada)
Page: S6
Copyright: 2008 The Globe and Mail Company
Contact:  http://www.globeandmail.ca/
Details: http://www.mapinc.org/media/168
Author: Noreen Shanahan, Special to The Globe and Mail

GERALD LE DAIN, 83: JURIST

His Landmark Commission on Drugs Urged Legalizing Marijuana in 1973

Already a Respected Legal Scholar, He Became an Improbable 
Counterculture Icon at the Height of the Hippy Era by Recommending 
Leniency and the Decriminalization of Recreational Drugs

TORONTO -- Gerald Le Dain's respect for civil liberties went so far 
as to rouse John Lennon and Yoko Ono from their bed. It was 1969, the 
year of the couple's "bed-in for peace" at the Queen Elizabeth Hotel 
in Montreal, and the year Judge Le Dain began chairing the 
much-referenced but largely ignored Commission of Inquiry into the 
Non-Medical Use of Drugs.

The Le Dain commission's final report was one of the most politically 
explosive documents ever put before the federal government. The 
commission held 46 days of public hearings, received 365 submissions 
and heard from 12,000 people in about 30 cities and at more than 20 
university campuses across the country. In its final report, in 1973, 
the commission recommended decriminalizing marijuana possession 
because the law-enforcement costs of prohibition were too great, and 
suggested that Canada focus on frank education rather than harsh 
penalization. It also recommended treatment for heroin addiction and 
sharp warnings about nicotine and alcohol. This was delivered at a 
time when hysteria about the evils of pot was on everyone's lips and 
many parents wanted the law to save their drug-addled teenagers.

The report also made Judge Le Dain something of an unlikely 
counterculture icon and helped win him a place on the Supreme Court 
of Canada during the formative years of the Charter of Rights and Freedoms.

Gerald Le Dain was born in Montreal to Eric Le Dain and Antoinette 
Whithard. His younger brother, Bruce, went on to become one of 
Canada's foremost impressionist landscape painters in the style of A. 
Y. Jackson and Tom Thomson. Gerry graduated from West Hill High 
School in 1942 and a year later, at 18, he joined the army and became 
a gunner with the 7th Medium Regiment, Royal Canadian Artillery, a 
unit that was in the thick of the fighting from D-Day until the 
surrender of Germany in May of 1945.

Immediately after the war, he attended the military's ad hoc Khaki 
University in England. One day, the school arranged a debate with 
students of Westfield College, then a women-only college associated 
with the University of London. During the event (debate topic: a 
woman's place in the home), he met Cynthia Emily Roy and, two weeks 
later, they became engaged. After being demobilized from the army, 
she joined him in Montreal, where they married and he set about 
finishing his education.

In 1949, he obtained a law degree from McGill University and was 
called to the Quebec bar. He spent the following year at a university 
in Lyons, where he gained his doctorate. On his return from France, 
he joined the Montreal law firm of Walker, Martineau, Chauvin, Walker 
& Allison and stayed three years until he returned to McGill as a 
professor of constitutional and administrative law. He also worked as 
counsel to Quebec's attorney-general on constitutional cases.

In 1967, he left Montreal to become dean of Osgoode Hall Law School, 
where, said colleague Harry Arthurs, he presided over a revolution in 
Canadian legal education. "It was his responsibility to persuade York 
University, the Law Society of Upper Canada, and the world at large, 
that what we were doing was not only the legitimate - not only the 
sensible - but the inevitable way forward." It was during this time 
that Pierre Trudeau asked Judge Le Dain to chair the commission. He 
was, at 44, perfectly suited to the job in many ways. By then, many 
young Canadians were indulging in marijuana and other recreational 
drugs; as a university professor, he was surrounded by many students 
who had at least given it a try. And as the father of a large family, 
he was adept at bridging the generation gap and responding 
empathetically. During the time he chaired the commission, there were 
four full-fledged teenagers, and one on the cusp, living in the Le Dain home.

The commissioners were asked to study the non-medical use of 
sedative, stimulant, tranquillizing, hallucinogenic and other 
psychotropic drugs or substances, including the experience of users. 
At his first news conference in 1969, he announced that, in the 
interest of research, he might experiment with the stuff himself.

"We made it possible to talk about drugs openly," he later said in an 
interview with The Globe and Mail. "In some of our early hearings, 
especially in smaller communities, you could feel the guilt that had 
been stored up around drugs. We also made it possible for people to 
criticize their institutions, to challenge their doctors, their 
school boards, their churches."

The Le Dain commission broke new ground in terms of taking the show 
on the road, said Mel Green, who worked as a sociologist with Judge 
Le Dain at the time. Judge Le Dain redefined the nature of a public 
inquiry by asking the public to directly participate, he said. "The 
commission found little traction in terms of changes in the law 
itself. ... There was a cultural divide between conventional 
attitudes and youth culture and I think the Le Dain commission helped 
bridge that gap." Inspired by Judge Le Dain, Mr. Green decided to 
switch careers and went to law school. He is now an Ontario 
provincial court judge.

By early 1969, John Lennon and Yoko Ono had created a stir with their 
public "bed-in" at a hotel in Amsterdam. On May 26, the couple booked 
into Room 1742 at the Queen Elizabeth in Montreal. To Judge Le Dain, 
they seemed to be just the kind of advocates for youth the commission 
should hear from. A meeting was arranged aboard a CN train in 
Montreal and, for 90 minutes, the couple shared their views on the 
drug culture and the generation gap. "This is the opportunity for 
Canada to lead the world," said Mr. Lennon, referring to the Le Dain 
commission. "Canada's image is just about getting groovy, you know." 
When it was over, Mr. Lennon gave his phone number to members of the 
commission.

It was not always such clear sailing. Commissioners also had to 
contend with a kind of "live bait" issue, where police were arresting 
young people who braved the generational divide to attend these 
public gatherings and tell their stories. In 1969, the 16-year-old 
son of communications theorist Marshall McLuhan was arrested as he 
was leaving a coffee shop in Yorkville, Toronto's then-hippy 
neighbourhood, where the commission was meeting. Michael McLuhan was 
convicted of criminal possession of a small amount of hashish and 
sentenced to 60 days in jail; he ended up serving 30 days and was 
eventually pardoned.

Marie-Andree Bertrand, one of the Le Dain commissioners, remembers 
those days and the difficulties in protecting witnesses. "Some of us 
went to [then-solicitor-general Pierre] Goyer and we said, 'Call off 
your gendarmes, monsieur!' and went to Trudeau, and it was slightly 
more calm after that," she told the Ottawa Citizen in 2003. "Imagine 
if Monsieur Lennon had been arrested or harassed. ... What a 
humiliation that would have been for all of us."

Although the commission's recommendations were never followed, there 
were significant changes in the public attitude toward drugs and in 
lighter sentences being handed down to offenders.

At a time when the generation gap was described as a gulf, Judge Le 
Dain had gained the respect of both sides of the drug-use argument. 
In a 1988 Globe and Mail column, Michael Valpy described him as a 
quiet, intellectual, spiritually minded academic who earned the 
praise of young people, the social agencies and the scientific 
community. "His commission acquired the reputation of being the most 
hard-working, open-minded and widely respected ever to tackle a major 
national problem."

In 1975, Judge Le Dain was appointed to the Federal Court of Appeal 
and the Court Martial Appeal Court. He remained there until May of 
1984, when Mr. Trudeau appointed him to the Supreme Court.

His tenure at the court during the early years of the Charter proved 
to be, in some ways, a trial by fire not only for him but for the 
other eight justices as well. A 1988 Globe and Mail article described 
a series of crises that nearly exhausted the court as a result of a 
backlog of Charter cases. At the time, it was referred to by 
political scientist Peter Russell as "A terrible rash of injuries" 
similar to the kind experienced by beleaguered players on a hockey team.

Not surprisingly, Judge Le Dain was one of the members of the court 
who struggled most during this time. As a result, he stayed only five 
years before an emotional breakdown brought about his retirement in 
1988. Even so, he left his mark on Charter decisions.

One example was the case of R. v. Therens (1985). The issue was 
whether a drunk driver could evade conviction on the grounds that 
police had violated his Charter rights by not informing him of his 
right to call a lawyer before compelling him to take a breathalyzer 
test. Judge Le Dain's former law clerk, Bruce Ryder, recalls that he 
struggled painfully over the case - partly because it recalled the 
death of his daughter Jacqueline a decade earlier from an automobile accident.

"As he spoke, he was pounding himself so hard in the chest I thought 
he might knock himself over. ... He took a deep breath, and we 
returned to our work." In the end, Judge Le Dain crafted an opinion 
that did right by the victims of highway accidents and by the 
Charter. In memorable language, he affirmed that the enactment of the 
Charter signalled a new era in the protection of fundamental rights 
and freedoms.

"Out of complexity and nuance, he produced masterfully succinct 
statements of the law," said Mr. Ryder.

In his retirement, Judge Le Dain worked on a range of projects, 
including preparing his papers for the national archives and 
meticulously crafting his memoirs. But his early retirement continued 
to be plagued by personal tragedy: first with his wife Cynthia's 
death in 1995 of cancer, then his daughter Catherine's death of 
pneumonia in 1998.

In 1990, the U.S. Drug Policy Alliance instituted an award in Gerald 
Le Dain's name, to be given to individuals involved in law who have 
worked within official institutions "when extremist pressures 
dominate government policies." The influential organization includes 
law- enforcement officials, academics, professionals, health-care 
workers, drug users and former users. "We sought to name the awards 
after our heroes," said founder Arnold Trebach. "Gerald Le Dain was 
certainly one of them. Few people realize the level of hate directed 
at drug users and drug policy reformers decades ago."

Judge Le Dain, the first Canadian to be so honoured, had earlier been 
made a companion of the Order of Canada.

Gerald Le Dain

Gerald Eric Le Dain was born on Nov. 27, 1924, in Montreal. He died 
in his sleep at home on Dec. 18, 2007. He was 83. He is survived by 
his son Eric and daughters Barbara, Jennifer and Caroline. He was 
predeceased by his wife, Cynthia, and by daughters Jacqueline and Catherine. 
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