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His Landmark Commission On Drugs Urged Legalizing Marijuana In 1973

Herb Fellow

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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-Andrée 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 "aA 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 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.

Source: TheGlobeAndMail.com
Copyright: 2008, The Globe and Mail
Contact: Noreen Shanahan, Special to The Globe and Mail
Website: globeandmail.com: His landmark commission on drugs urged legalizing marijuana in 1973
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