Appointment On June 3, 2014, Prime Minister
Stephen Harper announced the appointment of Gascon to the Supreme Court, with effect the following week, to take up the seat previously occupied by Justice
Morris Fish, who left the court more than nine months earlier shortly prior to his mandatory retirement date. Gascon's appointment filled a long vacancy and formally closed a highly contentious and unusually political charged chapter in Canadian judicial appointment process. In response to a court challenge, the government referred the eligibility of Harper's previous nominee for the seat, Justice
Marc Nadon of the
Federal Court of Appeal, to the Supreme Court, and the appointment was struck down in March 2014 as unconstitutional in
Reference Re Supreme Court Act, ss 5 and 6. The decision was followed by a highly public spat between the conservative government and Chief Justice
Beverley McLachlin, with government sources alleging the Chief Justice having lobbied against Justice Nadon’s appointment in the previous year. Gascon's appointment was the first justice in a decade to join the court without the appointment being subject to any parliamentary scrutiny. Following the failed nomination of Nadon, the government opted to bypass the customary parliamentary panel convened in the ten years preceding for either shortlisting or holding public hearing. Unlike Nadon however, Gascon's appointment was broadly well received in recognition of his intellectual rigour and due deference to precedents, Gascon took his seat at the Supreme Court on October 6, 2014, bringing the proportion of the court's seats being filled by Harper to two-thirds.
Selected Notable Decisions His 2017 dissent in the case
Stewart v Elk Valley Coal Corp received renewed interest after his resignation. His dissent noted the stigma surrounding drug dependence and highlighted how society's and the judiciary's objectiveness in assessing discrimination claims are impaired by the widely held perception that individuals afflicted with drug addictions are the authors of their own misfortune, or that their concerns are less credible than those of people suffering from other disabilities. Gascon warned of the risk of such reasoning leading to contributory fault defences for discrimination cases and further discrimination and marginalization of already disadvantaged groups. In June 2018, Gascon wrote for the majority of the court when it found that the
Canadian Human Rights Tribunal's determination that the
Indian Act did not violate the
Canadian Human Rights Act was reasonable. Three concurring justices instead argued that this context was not due
judicial deference and instead required review for correctness. On the evening of May 8, 2019, the
Ottawa Police Service issued a notice asking for the public's help in locating Gascon, who had not been seen since early the same afternoon. Shortly afterwards, they announced that he had been located safely. Gascon released a statement a week later stating that he had a panic attack, related in part to his recent decision to retire early from the Court, and acknowledging that, "For over 20 years, I have been dealing with a sometimes insidious illness:
depression and
anxiety disorders," Gascon sat in hearings following the announcement until the end of the court sitting season, and participated in deliberation of judgements until his effective resignation date.
Impact on public discourse Gascon was widely praised for his courage in publicly acknowledging mental health affliction as the cause of his brief disappearance, and was credited for destigmatizing the discussion around mental health, particularly in the areas of depression and anxiety, in the legal community. The unified supportive front by his Supreme Court peers and the outpouring of support from the legal community at large drew many public comparisons to the cruel treatment of Justice
Gerald Le Dain, who was swiftly and unceremoniously forced off the court by Chief Justice
Brian Dickson in 1988 after his mental health challenges were disclosed to Dickson. In the years following his resignation, Gascon gave a number of public interviews and speeches in which he opened up about his struggle with anxiety and depression, which he said he had been concealing since his mid-30s. == Post Supreme Court ==