Focus On

SCC’s Gascon encourages lawyers and judges to talk openly about anxiety, depression

Tuesday, October 22, 2019 @ 9:05 AM | By Cristin Schmitz

Judges of the Supreme Court of Canada are legal icons, so it’s easy to forget that they are human beings and struggle with the same afflictions as the rest of us.

That’s why retired Justice Clément Gascon’s decision to reveal that he lives with anxiety and depression has been so salutary for the legal profession’s awareness of, and efforts to destigmatize, the mental health challenges so many lawyers and judges face.

The newly retired 59-year-old Supreme Court of Canada judge tells The Lawyer’s Daily in an exclusive interview it was “a relief” to stop hiding his condition — so much so that he hopes others will opt to speak openly about their own experiences.

“The decision to speak so publicly about it is the decision that I’ve taken in my life as a judge that has provoked the most reactions by far ... by far,” emphasizes retired Justice Gascon. “It has been positive for me and frankly, if it has helped if only one person, then it would have been worth it.”

The former judge, who is looking forward to the next phase in his very successful  legal career, recently agreed to be part of a Quebec bar working group that is looking for ways to promote and support mental wellness in the legal profession. Similar initiatives are happening elsewhere in the country too.

Retired Supreme Court of Canada Justice Clément Gascon says if his disclosure of his struggles with anxiety and depression helps just one person ‘it would have been worth it.’

“I think there is a crise de conscience [in the profession], far more than before, because this is unfortunately a reality that you see a lot among young attorneys. It’s a problem in universities,” notes retired Justice Gascon.

“I think it’s a service to the whole legal profession that this be looked into and that we have a better understanding, a better acceptance of the reality — and not pretend that it isn’t there.”

The former judge spent 21 years as a successful civil litigator with Montreal’s Heenan Blaikie, followed by 17 distinguished years on the bench, including at the Quebec Court of Appeal and Quebec Superior Court, where he was widely respected for his adroit handling of difficult and large commercial cases and class actions.

However, during the past 25 years retired Justice Gascon, who has always worked long hours, also coped with high anxiety, sometimes accompanied by depression, which he mostly kept hidden, except from his spouse, Quebec Court judge Marie Michelle Lavigne.

At the Supreme Court of Canada where both the pace and heavy workload are unremitting, the self-described “perfectionist” and prolific judge found it was taking him longer to get things done — which exacerbated his anxiety and led to a spiral of cutting back more on sleep, exercise, recreation and social interactions — the very things most people need to recharge and to be productive.

“The job has always consumed me, all my life,” he explains. “I’m my worst enemy because I’m always pushing the envelope.” And “being a perfectionist is not ideal because ... you never attain perfection — so when you’re always trying to achieve it, chances are you will always be running after something.”

In a frank interview Oct. 15, the former judge, who retired Sept. 16 after five years at the top court, addressed many diverse questions The Lawyer’s Daily asked him in his Supreme Court office, where he continues to work for several months to finish his contributions to the reserved cases he participated in (See part two of the wide-ranging exclusive interview here).

As a very productive judge who wrote a lot, there is no question that  retired Justice Gascon left his mark on Canadian civil and common law — having heard 274 appeals since his June 9, 2014, appointment and authored or co-authored 51 opinions (mostly for the majority or a unanimous court, with more reserved judgments to come).

However, his impact on the legal profession itself might be as far-reaching.

Since his public disclosure last May, after he briefly found himself in hospital experiencing what he learned was a panic attack, retired Justice Gascon has heard from “hundreds” of people in all walks of life, including many lawyers and judges who told him they were heartened to see someone at the pinnacle of their often stressful and demanding profession admit to an illness that is believed to be experienced by legal professionals at three times the rate of other occupations.

There were “people that were dealing with this condition and being afraid to … voice it and seeing what I’ve done as a motivation to stop hiding and to be frank about it,” he told The Lawyer’s Daily.

Others told him, “Well it’s refreshing to see that you can have a pretty successful career, even if you need to deal with that.”

Retired Justice Gascon says his anxiety, and sometimes depression, emerged in his early to mid-30s. “I was hiding” it, he acknowledges.

How did he deal with it? “You deal with it the best you can,” which for him included medication and exercise.

The athletic former judge, who often deals with stress by going to the gym or running 10K, points out that anxiety generally does not go away. “If you have this condition, you have to accept that you have this condition.”

He notes that “anxiety issues tend to be quite present with high performers, and there are quite a number of high performers in the legal world. … And [with] high performance you tend to slowly dig ... the hole. You cut the sleep. You cut the food. You cut the exercise. You cut the fun because you isolate yourself. I know all these signs. I am a very bad student,” he smiles.

“But when you see that … sometimes you have to say ‘OK stop,’ ” he adds. “Mental fatigue, it’s not like physical fatigue. It’s not by resting that you cure it. It’s by the plaisir. Having something that allows you to disconnect. For me exercise does it to some extent,” he says. “But sometimes I have to learn, and listen to Marie Michelle or others and say, ‘Yes you go out tonight and have fun with a group of friends because you need to be able to disconnect’ — and that’s a lot of discipline.”

The condition “is manageable,” he stresses. “And sometimes you drop the ball because you don’t necessarily control everything.”

He advises lawyers and judges not to be afraid to talk about problems with their mental health, nor to be afraid to seek counselling from a psychologist or psychiatrist. “Medication is helpful to some. It has been helpful for me,” he says. “But most of all you need to identify what are the signs that tell you” that you are having a problem.

Retired Justice Gascon notes he was taken by surprise by what happened to him on the day last May when his whereabouts were not known for a few hours — prompting a police bulletin until it emerged that he was safe in hospital. At the time, he had recently had a change in medication and was “in mourning” and experiencing a lot of anxiety over what had been a very difficult decision to leave the Supreme Court and the judiciary.

“I didn’t know what a panic attack was until I went through it,” he recalls.

While he has always worked hard, the responsibility and demands are “a notch higher” at the Supreme Court — where working six to seven days a week on the toughest cases society can present is routine. “What is very demanding here is that it simply never stops,” he remarks. “It never stops because there is always something in the hopper. And even when you are done, in the sense of you’ve written your draft reasons, etc. you always have other [cases] that are coming, or others that are commenting on your [opinions]. It’s always an ongoing process. … At some point in the other courts you could see some time where it was not stopping, but slowing down a bit. Here it’s ongoing and obviously the files are very demanding. And if you’re perfectionist like me, there’s never any ending.”

He acknowledges “you have to learn to manage it properly.”

“In a working environment like this one where the workload is so heavy, you have to discipline yourself to take breathers, and I’m not the best example for that,” he laughs.

The former judges’ comments in that respect echo that of some other Supreme Court alumni, who have also remarked that the courts’ relentless pace leaves little time to recharge their batteries. For example, Louise Charron, another very hard-working judge who did a lot of the court’s heavy lifting in the area of criminal law, commented when she left after seven years that she might have stayed if the court had had supernumerary judges, as other federally appointed courts do.

“It’s interesting,” retired Justice Gascon remarks of the idea. “But at the same time how would you do that on a collegial court of nine?”

He also points out a constitutional amendment would likely also be required.

Retired Justice Gascon says he and his colleagues have been impressed that the United States Supreme Court clears its decks at the end of every court year, and generally does not carry over any reserved appeals. “They really have a breather, come July and August, because they only are looking forward.”

“We would like to be able to do the same,” he says. “I think the effort is there [from the court] to be able to do the same. But I must say I’m a bit puzzled as to whether we can ever achieve that because people work hard and we’re nowhere close to finishing all the reserves of a given year at the end of June — and it’s not because people are not working. So it’s tough to find the proper answer.”

(He notes that the Canadian court also issues all its judgments in both official languages which adds time to their turnaround.)

Looking ahead, retired Justice Gascon says he will strive for a better work-life balance, which means more time with family and friends, while sticking also to his professional habit of working hard.

(Because the former judge is still working on reserved decisions, he did not feel free to speak about any future professional plans.)

“It’s been a great 17 years [on the bench] — and I’m pretty convinced that whatever happens next will be very interesting too,” he says.

Photo of retired Justice Clément Gascon by Roy Grogan