In the words of the Truth and Reconciliation Commission of Canada (TRC), \u201c[v]irtually all aspects of Canadian society may need to be reconsidered\u201d to achieve reconciliation.[1]<\/a> While there is not an absolute consensus on the meaning of reconciliation, the TRC explains it as being \u201cabout establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country.\u201d[2]<\/a> In this article, I focus on a discrete and narrow, yet important, reconsideration of administrative law and the place of Indigenous peoples in the Canadian administrative state. It is unavoidably true that \u201c[r]econciliation will take some time\u201d[3]<\/a>\u2014but that is no excuse for inaction, as it is equally true that there is no time to waste.<\/p>\n A central component of the work toward reconciliation will be ensuring that the Canadian justice system and the Canadian administrative state acknowledge and incorporate the unique background and situation of Indigenous peoples into all facets of decision-making. Put otherwise, the colonial administrative state needs to demonstrate and explicitly apply its understanding and respect for the uniqueness of Indigenous peoples in all interactions with them.<\/p>\n In this article, I argue that Gladue<\/em> principles constitute a powerful and appropriate mechanism to do so. At their core, Gladue<\/em> principles constitute a recognition of the legal impact<\/em> of the unique history and circumstances of Indigenous peoples in Canada. It is for this reason that reconciliation will require\u2014among many other changes\u2014the proactive, purposive, and creative extension of Gladue <\/em>principles across administrative law.<\/p>\n In R v. Gladue<\/em> and its successor case, R v. Ipeelee<\/em>, the Supreme Court of Canada recognized that the overincarceration of Indigenous people in Canada constituted \u201ca crisis in the Canadian criminal justice system.\u201d[4]<\/a> While Justices Cory and Iacobucci, writing for the Court in Gladue<\/em>, did not explicitly identify colonization as the root of the crisis, they did refer to many of its impacts, including \u201cpoverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people … [as well as] bias against aboriginal people.\u201d[5]<\/a> The Court would correct this omission in Ipeelee<\/em>, directly connecting \u201cthe history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.\u201d[6]<\/a> As later recognized by the TRC, \u201c[c]olonialism remains an ongoing process, shaping both the structure and the quality of the relationship between the settlers and Indigenous peoples.\u201d[7]<\/a><\/p>\n While the Court in Gladue<\/em> recognized explicitly that \u201c[t]here are many aspects of this sad situation which cannot be addressed in these reasons\u201d and restricted itself to criminal sentencing,[8]<\/a> the approach gave rise to powerful, yet sometimes nebulous, \u201cGladue<\/em> principles\u201d that over time would nonetheless be extended beyond that context. In criminal sentencing in particular, the Court in Gladue <\/em>explained that section 718.2(e) of the Criminal Code<\/em> embraced: \u201c(a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.\u201d[9]<\/a> Put more generally, Gladue<\/em> requires judges \u201cto pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders.\u201d[10]<\/a> In this way, a careful, deliberate, and honest understanding of the circumstances of Indigenous persons embodies, or at least facilitates, the respect described by the TRC as integral to reconciliation\u2014but to limit this understanding to criminal sentencing would be woefully incomplete.<\/p>\n The extension of Gladue<\/em> principles beyond their origin in criminal sentencing under section 718.2(e) of the Criminal <\/em>Code<\/em> has been slow and far from steady, and has not achieved the aspirations of the Supreme Court of Canada in Gladue<\/em>.[11]<\/a> Some of these extensions have come in statute, specifically in: the Youth Criminal Justice Act<\/em>,[12]<\/a> amendments to the Code of Service Discipline<\/em> within the National Defence Act<\/em>,[13]<\/a> amendments to the bail provisions of the Criminal Code<\/em>[14]<\/a> and the Ontario Correctional Services and Reintegration Act, 2018<\/em>,[15]<\/a> and amendments to the Corrections and Conditional Release Act<\/em>.[16]<\/a> Most of these extensions, however, have come from decisions of courts in contexts ranging from extradition[17]<\/a> to civil contempt,[18]<\/a> the exclusion of evidence under section 24(2) of the Canadian Charter of Rights and Freedoms <\/em>(the Charter<\/em>),[19]<\/a> the stay of charges under section 24(1) of the Charter<\/em>,[20]<\/a> the voluntariness of admissions to police,[21]<\/a> the withdrawal of a guilty plea,[22]<\/a> and relief from notice periods in tort claims.[23]<\/a> Extensions of Gladue<\/em> principles to administrative law contexts have been relatively rare, but they have been invoked in cases of professional discipline[24]<\/a> and parole.[25]<\/a><\/p>\n Perhaps unsurprisingly then, Canadian courts and the Canadian legal literature have largely failed to explain, or even vigorously grapple with, the role and scope of Gladue<\/em> principles in administrative law generally. There is an extensive literature on Gladue<\/em> as it relates to specific matters surrounding criminal law, focused on but not limited to sentencing.[26]<\/a> But there is little, if any, conceptual consideration of Gladue<\/em> principles in administrative law more broadly.[27]<\/a><\/p>\n I have argued elsewhere that Gladue<\/em> principles should apply whenever the alienation and estrangement of Indigenous peoples from the Canadian justice system, including but not limited to the criminal justice system, is relevant.[28]<\/a> My argument was based on a synthesis of appellate decisions, primarily from the Ontario Court of Appeal, extending Gladue<\/em> principles to new contexts, while acknowledging apparent pushback on those extensions by the Supreme Court of Canada.[29]<\/a> Under my approach, the relevance of Gladue<\/em> principles in administrative law was dependent on how closely a given decision is connected to the justice system. Thus, for example, I argued that Gladue<\/em> principles are relevant in the professional discipline of Indigenous lawyers because lawyers are integrally connected to the justice system and Indigenous lawyers exhibit, yet also mediate or ameliorate, the estrangement from the justice system that Gladue <\/em>principles address. In focusing on the legal <\/em>profession and its connection to the justice system, I did not consider the administrative law context of professional discipline generally as determinative or even relevant. Under my analysis, Gladue<\/em> principles were relevant not because any particular decision was an administrative one, but because the disciplinary action took place in a context of estrangement and alienation from the justice system. Under that approach, for example, Gladue<\/em> principles would not be relevant to professional discipline of an Indigenous health professional, unless that professional was being disciplined for an interaction with the justice system\u2014such as a criminal offence in the course of their practice.<\/p>\n On further reflection, my previous analysis was effective on its own terms but limited\u2014indeed, arbitrarily limited\u2014by the implicit assumption that Indigenous alienation and estrangement from the colonial Canadian justice system could be differentiated or disentangled from Indigenous alienation and estrangement from the likewise colonial Canadian administrative state.<\/p>\n Here, I make the more comprehensive claim that Indigenous peoples are likewise estranged and alienated from the colonial Canadian administrative state itself.[30]<\/a> Under this broadened approach, I argue that Gladue<\/em> principles are potentially relevant to any administrative law decision. This is not to say that administrative law cannot be consistent with Indigenous experiences and values, or that there cannot be an Indigenous administrative law.[31]<\/a> Instead, my premise is that the Canadian administrative state is a colonial one from which Indigenous peoples are estranged and alienated.[32]<\/a><\/p>\n In this article, I build on the existing literature, including my own work, by proposing an account of the appropriate role and scope for Gladue<\/em> principles in administrative law. I do so based on a comprehensive search of reported decisions by tribunals and by courts on judicial review. I argue that Gladue<\/em> principles are potentially relevant to any administrative decision concerning an Indigenous person. I separate that universe of administrative decisions into three categories: penalty, benefit, and residual (i.e., neither penalty nor benefit). In general, Gladue<\/em> principles will be most directly and predictably applicable when considering a penalty against an Indigenous person. While the distinction between penalty and benefit can be a fuzzy one, the application of Gladue<\/em> principles when considering a benefit to an Indigenous person tends to be more limited by statute than in the penalty context. Finally, the residual category\u2014where the decision concerns neither a penalty nor a benefit\u2014calls most for ingenuity and creativity by counsel and decision-makers.<\/p>\n This paper is organized in seven parts. I begin in Part I by canvassing the meaning and legal character of Gladue<\/em> principles. I explain that they are best understood as a common law principle that recognizes the legal implications of the unique circumstances of Indigenous persons, past and present, particularly their alienation from the criminal justice system, and the impact of discrimination, cultural genocide, dislocation, and poor social and economic conditions. In Part II, I examinine why administrative decision-makers, and courts on judicial review of administrative decisions, decline to apply Gladue<\/em> principles. Based on a comprehensive search of such decisions, I argue that there are three main reasons for refusal: that the decision is not similar enough to criminal sentencing; that it is unclear how Gladue<\/em> principles would apply and how they would affect the result; and that the statutory criteria or jurisdiction of the decision-maker preclude the application of Gladue<\/em> principles. Then, in Part III, I consider counter-examples, namely decisions where administrative decision-makers, and courts on judicial review, have applied Gladue<\/em> factors. I argue that the common thread in these decisions is a liberty- or wrongdoing-based conception of Gladue<\/em> principles. This leads me in Part IV to analyze the appropriate scope of Gladue <\/em>principles in administrative law. As I have just indicated, I suggest that the application and impact of Gladue<\/em> principles will be relatively straightforward when the decision at issue is about a benefit or penalty for an Indigenous person who is the subject of the decision. But where the decision affects the interests of an Indigenous person who is not the subject of the decision, remoteness must be considered. Additionally, I argue that, where the decision is not about a benefit or a penalty, creativity will be required. In Part V, I consider whether Gladue<\/em> principles must be explicitly invoked and applied by name. While concluding that what is important is the substantive application of Gladue<\/em> principles and not the labelling of those principles, I suggest that the invocation of Gladue<\/em> principles provides a ready shorthand and thus serves as a useful indicator for reviewing courts. Then, in Part VI, I consider the standard of review where a decision-maker fails to consider or declines to apply Gladue<\/em> principles. While the standard of review is presumably reasonableness, failure to consider or to apply Gladue<\/em> principles will generally be unreasonable. Finally, I conclude in Part VII with recommendations for administrative decision-makers, judges on judicial review, counsel, legislators, and executive authorities.<\/p>\n Before I can proceed with the substance of my analysis, I need to first address two open questions in the literature and case law: what \u201cGladue<\/em> principles\u201d mean and what they are. Despite the many extensions and applications of Gladue<\/em> principles beyond criminal law sentencing, there has yet to be a definitive articulation of what Gladue<\/em> principles mean or an identification of their legal character\u2014be it statutory, common law, quasi-constitutional, constitutional, or some combination thereof. The answers to these underlying questions will inform and potentially limit the role of Gladue <\/em>principles in administrative law. Thus, I must begin by proposing such answers.<\/p>\n First, what do courts mean when they invoke so-called \u201cGladue<\/em> principles\u201d? I previously defined Gladue<\/em> principles as \u201ca recognition of the unique circumstances of Indigenous persons, particularly their alienation from the criminal justice system, and the impact of discrimination, cultural oppression, dislocation, and poor social and economic conditions.\u201d[33]<\/a> This definition has at least three shortcomings. The first is that my definition does not explicitly recognize that the alienation, discrimination, and other experiences are not only historical but also ongoing, and that the impact of these experiences is likewise both historical and ongoing. The second shortcoming is that the phrase \u201ccultural oppression\u201d minimizes what has been better described as \u201ccultural genocide.\u201d[34]<\/a><\/p>\n The third shortcoming is of a different type and has particularly important implications for my analysis in this article. The Gladue<\/em> and Ipeelee <\/em>decisions could merely be cited as instances in which the Court recognized the facts of anti-Indigenous bias and racism in Canada. Such a limited application of Gladue<\/em> is consistent with my earlier definition of Gladue<\/em> principles. A better definition of Gladue<\/em> principles is that these factual considerations have a particular legal impact and require a particular kind of legal approach\u2014although the specifics of this approach will vary depending on the circumstances, as I will illustrate through the remainder of my analysis. Thus, for the purpose of this article, I define Gladue<\/em> principles as: a recognition of the legal implications of the unique circumstances of Indigenous persons, past and present, particularly their alienation from the criminal justice system, and the impact of discrimination, cultural genocide, dislocation, and poor social and economic conditions.[35]<\/a><\/p>\n The proper role and impact of Gladue<\/em> principles, however, is contoured not only by their definition but also by their character as a legal construct within the legal system. Are they statutory, common law, quasi-constitutional, constitutional, or some combination thereof? For present purposes, I argue that Gladue<\/em> principles are a common law principle that may yet be recognized as quasi-constitutional or even constitutional. But they certainly already exceed their statutory origins.<\/p>\n This is not to deny that, in some contexts, Gladue<\/em> principles are a statutory principle. This characteristic is most obvious in criminal sentencing under section 718.2(e) of the Criminal Code<\/em>, but is also true of the other narrow and specific statutory extensions of section 718.2(e) listed above.[36]<\/a> However, it does not necessarily follow from this that Gladue<\/em> principles are solely<\/em> a statutory principle.<\/p>\n As I have traced elsewhere, a line of appellate decisions\u2014mostly from the Ontario Court of Appeal\u2014interprets Gladue<\/em> principles as a common law principle that can apply absent specific statutory direction.[37]<\/a> The weakness of characterizing Gladue <\/em>principles as a common law legal principle is that they can be overruled or abandoned by subsequent decisions or legislated away by statute.<\/p>\n Indeed, subsequent to those appellate decisions, two decisions from the Supreme Court of Canada appear to push back, at least in part, on this common law characterization of Gladue <\/em>principles.[38]<\/a> More recently, the original inclusion of Gladue <\/em>principles in the sentencing provisions, but not in the bail provisions, of the Criminal <\/em>Code<\/em>, led two trial judges\u2014in either faithful execution of their duties or chutzpah or both\u2014to hold that Gladue<\/em> principles did not apply to bail.[39]<\/a> In doing so, these judges rejected precedents that, while not binding on them\u2014and, in their analysis, not actually persuasive\u2014had nonetheless been uniformly followed. This split in the case law will presumably be resolved by the 2019 addition of Gladue <\/em>provisions to the bail section of the Criminal <\/em>Code<\/em>.[40]<\/a><\/p>\n However, just as the statutory role of Gladue<\/em> principles does not preclude a common law role for such principles, a common law role does not preclude a constitutional role. The most obvious role for constitutionalized Gladue <\/em>principles is as a principle of fundamental justice under section 7 of the Charter.<\/em>[41]<\/a> The inherent limitation of such a constitutionalization is that such Gladue<\/em> principles would apply only where a section 7 interest\u2014life, liberty, or security of the person\u2014was engaged.[42]<\/a> In contrast, the recent decision of the Ontario Court of Appeal in R v. Sharma<\/em> takes the intriguing position that restricting the ability of sentencing judges to properly and freely apply Gladue<\/em> principles constitutes unjustifiable discrimination against Indigenous persons under section 15 of the Charter<\/em>.[43]<\/a> The Court also held that there was a section 7 infringement, but used overbreadth\u2014not Gladue<\/em> principles themselves\u2014as a principle of fundamental justice.[44]<\/a> The most robust and powerful form of constitutionalization\u2014indeed, the legal realization of the full potential of R v. Gladue <\/em>itself\u2014would be for Gladue <\/em>principles to be recognized as an unwritten principle of the Constitution. This seems unlikely at present, but change may come.<\/p>\n I emphasize here that legal principles can change in form over time. Perhaps the best example, though seemingly distant from this analysis, is solicitor-client privilege. Solicitor-client privilege began as a rule of evidence, but is now not only a substantive right but also a principle of fundamental justice under section 7 of the Charter<\/em>.[45]<\/a> Indeed, in the leading treatise, Adam Dodek writes that solicitor-client privilege \u201cas it currently exists in Canada is best understood as a quasi-constitutional<\/em> right to communicate in confidence with one\u2019s lawyer.\u201d[46]<\/a><\/p>\n For now, in my view, Gladue<\/em> principles are best understood as a common law principle. To relegate them to a mere statutory role would be to discard and impede the clear aspirations of the Supreme Court of Canada in Gladue<\/em>; to attribute to federal and provincial legislators an unrealistic level of comprehensive awareness, discernment, and deliberation; to create incoherence in the common law; and to limit the ability of administrative decision-makers and judges to do justice in individual cases. While the Supreme Court of Canada has gestured to an interpretation of Gladue <\/em>principles as being merely statutory in Kokopenace<\/em> and Anderson<\/em>, the lower appellate decisions extending the application of Gladue<\/em> principles as a common law principle remain, strictly speaking, undisturbed. Until the Supreme Court of Canada explicitly goes further, lower court judges can in good faith apply Gladue <\/em>principles as a common law principle outside the specific contexts of Kokopenace<\/em> and Anderson<\/em>. However, in my view, there is simply too little\u2014if any\u2014existing support to go further and constitutionalize Gladue<\/em> principles, at least at this time.[47]<\/a><\/p>\n A review of Canadian cases since R v. Gladue<\/em> reveals three main reasons and two ancillary reasons for which administrative decision-makers, and courts on judicial review, decline to apply Gladue<\/em> principles.<\/p>\n First, the most fundamental and conceptual reason for declining to apply Gladue<\/em> principles in administrative law is that the specific context and nature of the decision is not similar enough to criminal sentencing. This reasoning is sometimes conclusory, but is sometimes more elaborate.<\/p>\n A conclusory example comes from Re Can-Am Urban Native Non-Profit Homes <\/em>(Windsor<\/em>) Inc<\/em>.,[48]<\/a> in which a landlord applied to terminate a tenancy and evict the Indigenous tenant for illegal acts on the rental premises. Counsel for the tenant argued Gladue<\/em> principles, specifically on restorative justice and lesser sentences. The decision-maker rejected this argument on the conclusory basis that \u201cthis case is distinguishable from Gladue<\/em> …, as the Tribunal is considering the tenancy and not a sentencing of the Tenant.\u201d[49]<\/a><\/p>\n A more developed rationale was given in Desmoulin v. Criminal Injuries Compensation Board<\/em>.[50]<\/a> Desmoulin<\/em> was a judicial review of a decision denying an Indigenous applicant compensation for injuries at a training school.[51]<\/a> The denial was based on the applicant\u2019s subsequent criminal activity.[52]<\/a> The court rejected the Gladue<\/em> argument on the basis that even if Gladue<\/em> principles could be properly extended from their original statutory sentencing context, such extensions had only been applied in criminal law contexts where \u201cpersonal freedom\u201d was at stake\u2014not where the decision under review was a civil matter and not a criminal one.[53]<\/a> As I will return to below, the court nonetheless held that the applicant\u2019s \u201ccultural background\u201d was a relevant factor that the administrative decision-maker had properly considered.[54]<\/a><\/p>\n The reasoning in Moore v. Law Society of British Columbia<\/em> is to similar effect.[55]<\/a> Moore<\/em> was a judicial review of decisions of the law society\u2019s credentials committee regarding an Indigenous lawyer transferring from another province.[56]<\/a> In holding that there was no obligation to consider Gladue<\/em> principles,[57]<\/a> Justice Watchuk noted that Gladue<\/em> concerned criminal sentencing and that \u201c[a]lthough Gladue<\/em> factors have been applied outside the criminal law context, they have only been applied in relation to the imposition of penalties or disciplinary sanctions.\u201d[58]<\/a> Justice Watchuk also explicitly noted that there was no exact precedent: \u201cThere was no reported case before the court where a law society has applied Gladue<\/em> factors in a decision regarding admission to practice.\u201d[59]<\/a><\/p>\n Similar reasoning is evident in Resource Development Trades Council of Newfoundland and Labrador v. Muskrat Falls Employers\u2019 Association<\/em>,[60]<\/a> a judicial review of a grievance in which the arbitrator refused to reinstate an Indigenous employee involved in an unlawful strike. The court held that termination in a unionized work environment was too dissimilar to, among other things, criminal sentencing for Gladue <\/em>principles to apply: \u201c[t]he authorities referred to by the Union deal with the importance of recognizing and protecting aboriginal culture and heritage in the context of criminal sentencing and child custody and adoption circumstances. … These decisions are not relevant to the contractual environment of a collective agreement and a voluntary employer\/employee relationship.\u201d[61]<\/a><\/p>\n While Re Can-Am<\/em>, Desmoulin<\/em>, Moore<\/em>, and Muskrat Falls <\/em>squarely reject Gladue<\/em> principles, the impact of Lewis v. Canada (Public Safety and Emergency Preparedness)<\/em> on the role of those principles in administrative law is less clear.[62]<\/a> The Federal Court of Appeal in Lewis <\/em>held that Gladue<\/em> principles did not apply to a deportation decision concerning a non-Indigenous parent with an Indigenous child in Canada.[63]<\/a> For my purposes, what is important from Lewis<\/em> is that Justice Gleason for the panel appeared\u2014without clear justification, in my view\u2014to limit the extension of Gladue<\/em> principles to contexts where an interest under section 7 of the Charter <\/em>was engaged.[64]<\/a> In doing so, she rejected precedents extending Gladue <\/em>principles absent such a section 7 interest.[65]<\/a> Ironically, while appearing to implicitly constitutionalize Gladue<\/em> principles into a principle of fundamental justice under section 7,[66]<\/a> she simultaneously restricted their potential scope by holding that they have only <\/em>that status and that they do not and cannot apply outside section 7. The impact of Lewis<\/em> for my analysis is even less clear because after rejecting Gladue<\/em> arguments, Justice Gleason nonetheless went on to find that the decision was unreasonable because deportation would isolate the child from her Indigenous heritage.[67]<\/a><\/p>\n These decisions\u2014Re Can-Am<\/em>, Desmoulin<\/em>, Moore<\/em>, Muskrat Falls<\/em>, and Lewis<\/em>\u2014span many substantive areas of law, but nonetheless share a reluctance to consider any incremental extension of Gladue<\/em> principles beyond existing precedent. I do not suggest that such reluctance betrays an intellectual laziness or undue risk aversion. But it reveals a very narrow view both of the role and powers of administrative decision-makers and judges on judicial review, and of the aspirations of the Supreme Court of Canada in Gladue <\/em>itself. In particular, Justice Watchuk in Moore <\/em>exemplifies this approach in her reliance on the fact that there was \u201cno reported case\u201d to be precisely followed as exact precedent.[68]<\/a><\/p>\n I acknowledge, however, that this caution in extending Gladue<\/em> outside the criminal context is not unique to administrative law. One example is that courts in child protection matters are divided on the application of Gladue<\/em> principles. Thus, the court in X (Re) <\/em>observed that criminal sentencing was<\/em> \u201c<\/em>un contexte extr\u00eamement diff\u00e9rent<\/em>\u201d<\/em>[69]<\/a> and that<\/em> \u201c<\/em>il faut \u00eatre extr\u00eamement prudents avant de faire des rapprochements entre deux sph\u00e8res aussi distinctes du droit.<\/em>\u201d<\/em>[70]<\/a> Likewise,<\/em> the reasons in Alberta (Child, Youth and Family Enhancement Act, Director) v. JR<\/em> emphasized not only the differences in the statutory regimes\u2014specifically that child protection is protective, not punitive\u2014but also the differences in the \u201crationale and the remedies.\u201dI.\u00a0 The Meaning and Legal Character of Gladue <\/em>Principles<\/h1>\n
<\/a><\/a>II. Why Do Administrative Decision-Makers Decline to Apply Gladue<\/em> Principles?<\/h1>\n