Article body

Introduction

In the words of the Truth and Reconciliation Commission of Canada (TRC), “[v]irtually all aspects of Canadian society may need to be reconsidered” to achieve reconciliation.[1] While there is not an absolute consensus on the meaning of reconciliation, the TRC explains it as being “about establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country.”[2] 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 “[r]econciliation will take some time”[3]—but that is no excuse for inaction, as it is equally true that there is no time to waste.

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.

In this article, I argue that Gladue principles constitute a powerful and appropriate mechanism to do so. At their core, Gladue principles constitute a recognition of the legal impact of the unique history and circumstances of Indigenous peoples in Canada. It is for this reason that reconciliation will require—among many other changes—the proactive, purposive, and creative extension of Gladue principles across administrative law.

In R v. Gladue and its successor case, R v. Ipeelee, the Supreme Court of Canada recognized that the overincarceration of Indigenous people in Canada constituted “a crisis in the Canadian criminal justice system.”[4] While Justices Cory and Iacobucci, writing for the Court in Gladue, did not explicitly identify colonization as the root of the crisis, they did refer to many of its impacts, including “poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people ... [as well as] bias against aboriginal people.”[5] The Court would correct this omission in Ipeelee, directly connecting “the 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.”[6] As later recognized by the TRC, “[c]olonialism remains an ongoing process, shaping both the structure and the quality of the relationship between the settlers and Indigenous peoples.”[7]

While the Court in Gladue recognized explicitly that “[t]here are many aspects of this sad situation which cannot be addressed in these reasons” and restricted itself to criminal sentencing,[8] the approach gave rise to powerful, yet sometimes nebulous, “Gladue principles” that over time would nonetheless be extended beyond that context. In criminal sentencing in particular, the Court in Gladue explained that section 718.2(e) of the Criminal Code embraced: “(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.”[9] Put more generally, Gladue requires judges “to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders.”[10] 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—but to limit this understanding to criminal sentencing would be woefully incomplete.

The extension of Gladue principles beyond their origin in criminal sentencing under section 718.2(e) of the Criminal Code has been slow and far from steady, and has not achieved the aspirations of the Supreme Court of Canada in Gladue.[11] Some of these extensions have come in statute, specifically in: the Youth Criminal Justice Act,[12] amendments to the Code of Service Discipline within the National Defence Act,[13] amendments to the bail provisions of the Criminal Code[14] and the Ontario Correctional Services and Reintegration Act, 2018,[15] and amendments to the Corrections and Conditional Release Act.[16] Most of these extensions, however, have come from decisions of courts in contexts ranging from extradition[17] to civil contempt,[18] the exclusion of evidence under section 24(2) of the Canadian Charter of Rights and Freedoms (the Charter),[19] the stay of charges under section 24(1) of the Charter,[20] the voluntariness of admissions to police,[21] the withdrawal of a guilty plea,[22] and relief from notice periods in tort claims.[23] Extensions of Gladue principles to administrative law contexts have been relatively rare, but they have been invoked in cases of professional discipline[24] and parole.[25]

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 principles in administrative law generally. There is an extensive literature on Gladue as it relates to specific matters surrounding criminal law, focused on but not limited to sentencing.[26] But there is little, if any, conceptual consideration of Gladue principles in administrative law more broadly.[27]

I have argued elsewhere that Gladue 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] My argument was based on a synthesis of appellate decisions, primarily from the Ontario Court of Appeal, extending Gladue principles to new contexts, while acknowledging apparent pushback on those extensions by the Supreme Court of Canada.[29] Under my approach, the relevance of Gladue 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 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 principles address. In focusing on the legal 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 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 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—such as a criminal offence in the course of their practice.

On further reflection, my previous analysis was effective on its own terms but limited—indeed, arbitrarily limited—by 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.

Here, I make the more comprehensive claim that Indigenous peoples are likewise estranged and alienated from the colonial Canadian administrative state itself.[30] Under this broadened approach, I argue that Gladue 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] Instead, my premise is that the Canadian administrative state is a colonial one from which Indigenous peoples are estranged and alienated.[32]

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 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 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 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 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—where the decision concerns neither a penalty nor a benefit—calls most for ingenuity and creativity by counsel and decision-makers.

This paper is organized in seven parts. I begin in Part I by canvassing the meaning and legal character of Gladue 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 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 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 principles. Then, in Part III, I consider counter-examples, namely decisions where administrative decision-makers, and courts on judicial review, have applied Gladue factors. I argue that the common thread in these decisions is a liberty- or wrongdoing-based conception of Gladue principles. This leads me in Part IV to analyze the appropriate scope of Gladue principles in administrative law. As I have just indicated, I suggest that the application and impact of Gladue 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 principles must be explicitly invoked and applied by name. While concluding that what is important is the substantive application of Gladue principles and not the labelling of those principles, I suggest that the invocation of Gladue 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 principles. While the standard of review is presumably reasonableness, failure to consider or to apply Gladue 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.

I. The Meaning and Legal Character of Gladue Principles

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 “Gladue principles” mean and what they are. Despite the many extensions and applications of Gladue principles beyond criminal law sentencing, there has yet to be a definitive articulation of what Gladue principles mean or an identification of their legal character—be 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 principles in administrative law. Thus, I must begin by proposing such answers.

First, what do courts mean when they invoke so-called “Gladue principles”? I previously defined Gladue principles as “a 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.”[33] 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 “cultural oppression” minimizes what has been better described as “cultural genocide.”[34]

The third shortcoming is of a different type and has particularly important implications for my analysis in this article. The Gladue and Ipeelee 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 is consistent with my earlier definition of Gladue principles. A better definition of Gladue principles is that these factual considerations have a particular legal impact and require a particular kind of legal approach—although 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 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]

The proper role and impact of Gladue 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 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.

This is not to deny that, in some contexts, Gladue principles are a statutory principle. This characteristic is most obvious in criminal sentencing under section 718.2(e) of the Criminal Code, but is also true of the other narrow and specific statutory extensions of section 718.2(e) listed above.[36] However, it does not necessarily follow from this that Gladue principles are solely a statutory principle.

As I have traced elsewhere, a line of appellate decisions—mostly from the Ontario Court of Appeal—interprets Gladue principles as a common law principle that can apply absent specific statutory direction.[37] The weakness of characterizing Gladue principles as a common law legal principle is that they can be overruled or abandoned by subsequent decisions or legislated away by statute.

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 principles.[38] More recently, the original inclusion of Gladue principles in the sentencing provisions, but not in the bail provisions, of the Criminal Code, led two trial judges—in either faithful execution of their duties or chutzpah or both—to hold that Gladue principles did not apply to bail.[39] In doing so, these judges rejected precedents that, while not binding on them—and, in their analysis, not actually persuasive—had nonetheless been uniformly followed. This split in the case law will presumably be resolved by the 2019 addition of Gladue provisions to the bail section of the Criminal Code.[40]

However, just as the statutory role of Gladue 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 principles is as a principle of fundamental justice under section 7 of the Charter.[41] The inherent limitation of such a constitutionalization is that such Gladue principles would apply only where a section 7 interest—life, liberty, or security of the person—was engaged.[42] In contrast, the recent decision of the Ontario Court of Appeal in R v. Sharma takes the intriguing position that restricting the ability of sentencing judges to properly and freely apply Gladue principles constitutes unjustifiable discrimination against Indigenous persons under section 15 of the Charter.[43] The Court also held that there was a section 7 infringement, but used overbreadth—not Gladue principles themselves—as a principle of fundamental justice.[44] The most robust and powerful form of constitutionalization—indeed, the legal realization of the full potential of R v. Gladue itself—would be for Gladue principles to be recognized as an unwritten principle of the Constitution. This seems unlikely at present, but change may come.

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.[45] Indeed, in the leading treatise, Adam Dodek writes that solicitor-client privilege “as it currently exists in Canada is best understood as a quasi-constitutional right to communicate in confidence with one’s lawyer.”[46]

For now, in my view, Gladue 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; 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 principles as being merely statutory in Kokopenace and Anderson, the lower appellate decisions extending the application of Gladue 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 principles as a common law principle outside the specific contexts of Kokopenace and Anderson. However, in my view, there is simply too little—if any—existing support to go further and constitutionalize Gladue principles, at least at this time.[47]

II. Why Do Administrative Decision-Makers Decline to Apply Gladue Principles?

A review of Canadian cases since R v. Gladue reveals three main reasons and two ancillary reasons for which administrative decision-makers, and courts on judicial review, decline to apply Gladue principles.

First, the most fundamental and conceptual reason for declining to apply Gladue 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.

A conclusory example comes from Re Can-Am Urban Native Non-Profit Homes (Windsor) Inc.,[48] 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 principles, specifically on restorative justice and lesser sentences. The decision-maker rejected this argument on the conclusory basis that “this case is distinguishable from Gladue ..., as the Tribunal is considering the tenancy and not a sentencing of the Tenant.”[49]

A more developed rationale was given in Desmoulin v. Criminal Injuries Compensation Board.[50] Desmoulin was a judicial review of a decision denying an Indigenous applicant compensation for injuries at a training school.[51] The denial was based on the applicant’s subsequent criminal activity.[52] The court rejected the Gladue argument on the basis that even if Gladue principles could be properly extended from their original statutory sentencing context, such extensions had only been applied in criminal law contexts where “personal freedom” was at stake—not where the decision under review was a civil matter and not a criminal one.[53] As I will return to below, the court nonetheless held that the applicant’s “cultural background” was a relevant factor that the administrative decision-maker had properly considered.[54]

The reasoning in Moore v. Law Society of British Columbia is to similar effect.[55] Moore was a judicial review of decisions of the law society’s credentials committee regarding an Indigenous lawyer transferring from another province.[56] In holding that there was no obligation to consider Gladue principles,[57] Justice Watchuk noted that Gladue concerned criminal sentencing and that “[a]lthough Gladue factors have been applied outside the criminal law context, they have only been applied in relation to the imposition of penalties or disciplinary sanctions.”[58] Justice Watchuk also explicitly noted that there was no exact precedent: “There was no reported case before the court where a law society has applied Gladue factors in a decision regarding admission to practice.”[59]

Similar reasoning is evident in Resource Development Trades Council of Newfoundland and Labrador v. Muskrat Falls Employers’ Association,[60] 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 principles to apply: “[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.”[61]

While Re Can-Am, Desmoulin, Moore, and Muskrat Falls squarely reject Gladue principles, the impact of Lewis v. Canada (Public Safety and Emergency Preparedness) on the role of those principles in administrative law is less clear.[62] The Federal Court of Appeal in Lewis held that Gladue principles did not apply to a deportation decision concerning a non-Indigenous parent with an Indigenous child in Canada.[63] For my purposes, what is important from Lewis is that Justice Gleason for the panel appeared—without clear justification, in my view—to limit the extension of Gladue principles to contexts where an interest under section 7 of the Charter was engaged.[64] In doing so, she rejected precedents extending Gladue principles absent such a section 7 interest.[65] Ironically, while appearing to implicitly constitutionalize Gladue principles into a principle of fundamental justice under section 7,[66] she simultaneously restricted their potential scope by holding that they have only that status and that they do not and cannot apply outside section 7. The impact of Lewis for my analysis is even less clear because after rejecting Gladue arguments, Justice Gleason nonetheless went on to find that the decision was unreasonable because deportation would isolate the child from her Indigenous heritage.[67]

These decisions—Re Can-Am, Desmoulin, Moore, Muskrat Falls, and Lewis—span many substantive areas of law, but nonetheless share a reluctance to consider any incremental extension of Gladue 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 itself. In particular, Justice Watchuk in Moore exemplifies this approach in her reliance on the fact that there was “no reported case” to be precisely followed as exact precedent.[68]

I acknowledge, however, that this caution in extending Gladue 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 principles. Thus, the court in X (Re) observed that criminal sentencing was “un contexte extrêmement différent”[69] and that “il faut être extrêmement prudents avant de faire des rapprochements entre deux sphères aussi distinctes du droit.”[70] Likewise, the reasons in Alberta (Child, Youth and Family Enhancement Act, Director) v. JR emphasized not only the differences in the statutory regimes—specifically that child protection is protective, not punitive—but also the differences in the “rationale and the remedies.”[71] Other child protection courts have nonetheless applied similar considerations to those underlying Gladue principles.[72] Another example of this caution is Armstrong v. McCusker, a motion to change child support paid by an Indigenous parent to another Indigenous parent for the benefit of an Indigenous child.[73] In declining to apply Gladue principles, the court in Armstrong emphasized the difference between support and sentencing: “[T]he payor’s liberty interest is not at stake, nor is the Indigenous payor facing punitive state action ... Very importantly, there are other individuals whose interests are at stake here, in particular Indigenous children and Indigenous mothers.”[74]

The second reason for declining to apply Gladue principles is less conceptual and more pragmatic: that the decision-maker cannot determine how Gladue principles properly apply in the particular context or matter, that is, what impact they should have on the decision. Consider for example the decision of the Ontario Consent and Capacity Board in DB (Re), reviewing an Indigenous person’s capacity to consent to treatment and the imposition of a community treatment order: “Assuming without deciding that the board had jurisdiction to consider Gladue principles, it was not clear to the Board as to how or in what way the Board was to take that into consideration.”[75] Like the first reason, this second reason perhaps suggests a lack of imagination or ingenuity, but more importantly it reveals that Gladue is not a self-executing magic word whose mere invocation changes the outcome of a case.

The third and most intractable reason for declining to apply Gladue principles is that there are statutory constraints that limit the jurisdiction of decision-makers, the factors that they may consider, or the remedies or benefits that they may order. While there appear to be no enabling statutes that explicitly preclude the application of Gladue principles (and such preclusion would be a red flag for the prospects of reconciliation[76]), there are many that reach the same result by their facially neutral terms. For example, the applicant for Ontario Disability Support in 1710-08668 (Re) submitted a Gladue report which recommended, among other things, “access to traditional healing and wellness support services, indigenous specific mental health counselling, as well as access to any and all physical health support services of the Appellant’s choice.”[77] The Tribunal noted that under its enabling statute, it lacked jurisdiction to order these benefits.[78] A similar outcome occurred in Anonyme — 181108 and Anonyme — 181109, reviews of two denials of legal aid in which “[l]’avocat invoque les arrêts Gladue et Ipeelee afin de justifier la couverture du service demandé.”[79] The Committee, making no further mention of Gladue, held that the applicant did not meet the mandatory or discretionary criteria in the relevant statute and thus refused to order that legal aid be provided to her.[80] Similarly, recall that the Consent and Capacity Board in DB (Re) suggested that even if Gladue principles could somehow be applied, it might not have the jurisdiction to do so.[81] This third reason is intractable insofar as Gladue principles are a common law principle and not constitutionalized.

Like the first reason, this third reason for declining to apply Gladue principles is not unique to administrative law. Consider for example Ontario (Director, Family Responsibility Office) v. McMurter, an application for enforcement of a spousal support order.[82] In granting the application, the court held that the statutory scheme precluded a role for Gladue principles.[83]

A fourth potential reason is that Gladue principles or Gladue arguments are unnecessary to determine the matter, (i.e., that the decision or the judicial review can be determined on other grounds). For example, on judicial review of the revocation of an Indigenous person’s statutory release by the Parole Board of Canada, the court in Joly v. Canada (Attorney General) held that the matter could be determined on procedural fairness grounds and thus it was unnecessary to consider the failure to apply Gladue principles.[84] It is worth emphasizing here that even where Gladue principles are strictly unnecessary to decide the matter, declining to consider them in the alternative creates gaps for a court on judicial review or on an appeal from judicial review.

A fifth potential reason for declining to apply Gladue principles is that there is insufficient relevant evidence before the decision-maker. Consider here Tuckanow v. Bowden Penitentiary, reviewing the decision to transfer an Indigenous inmate to a higher-security institution: “While I could not say that Gladue would never apply within the context of corrections decisions, there is no reason on the basis of these facts to find that it does.”[85] To similar effect is Law Society of Alberta v. Willier, about the applicability of Gladue principles to costs orders in disciplinary proceedings involving Indigenous lawyers. In that decision, the panel did not rule out the application of Gladue principles to penalty or costs determination, but held that there was no relevant evidence before it.[86] This fifth potential reason relates to legal uncertainty over the proper scope of judicial notice and the need for specific evidence about the circumstances of the particular Indigenous person who is the subject of the decision.[87]

I acknowledge here that Gladue principles may not change the result in every case—especially where the decision is a binary one, such as in the determination of eligibility for a benefit. That is, it is necessary to distinguish between a decision-maker who declines to apply Gladue principles and a decision-maker whose application of Gladue principles does not change the outcome of the case.

III. Counter-Examples: Why Do Administrative Decision-Makers Apply Gladue Principles?

In this part, I provide some counter-examples, that is, decisions where administrative decision-makers or courts on judicial review apply Gladue principles. These decisions reveal a coherent basis for counteracting or responding to some of the reasons discussed in Part II, particularly a reluctance to extend Gladue principles beyond criminal sentencing.[88] As I will return to below, the decisions that I examine in Part III are all fundamentally decisions about penalty, although at first glance they mostly involve liberty.

The least surprising extension of Gladue principles to administrative law is to decisions of the provincial review boards regarding not criminally responsible (NCR) accused under the Criminal Code. While these dispositions are not sentences, they resemble sentences and indeed are an integral part of the criminal justice system. Justice Sharpe in R v. Sim gave several reasons for applying Gladue principles in this context.[89] The most important for my purposes are, first, that NCR dispositions, like sentences, are relevant to estrangement and overincarceration;[90] and second, that Gladue principles are relevant to the statutory criteria that review boards must apply.[91] While Sim concerned NCR accused, review boards have also applied Gladue to dispositions for accused unfit to stand trial.[92]

While Sim was the first decision in which a court confirmed that review boards must apply Gladue principles to Indigenous NCR accused, a dissenting member of the British Columbia Review Board in Alexis (Re) had done so before Sim.[93] That dissenting member noted that, “for this particular accused, it is not only entirely appropriate, but indeed necessary to include in the analysis the unique, historic, cultural, political, and systemic components of his aboriginal heritage and traditions ... Mr. Alexis’ circumstances are unique and different from those of other NCRMD [NCR on account of mental disorder] accused.”[94] While the dissenting member noted that Gladue originated in sentencing provisions of the Criminal Code, he held that “[s]uch considerations would also appear entirely consistent with and correspond to or further the criteria in s. 672.54 [the Criminal Code provision on dispositions for NCR accused].”[95]

Perhaps the least surprising extension of Gladue principles to judicial review beyond matters under the Criminal Code is to extradition. Extradition is fundamentally about overriding the individual’s liberty interest for the purpose of criminal proceedings, albeit proceedings in another jurisdiction. Justice Sharpe in United States v. Leonard, overturning the minister’s surrender decision on judicial review, held that Gladue principles are relevant for decision-makers, judges or otherwise, “whenever an Aboriginal person’s liberty is at stake in criminal and related proceedings.”[96] While it is clear from the reasoning in Leonard that Gladue principles should apply if liberty is engaged in “criminal and related proceedings,” which Justice Sharpe did not define further, this holding does not necessarily mean that Gladue principles can only apply in such circumstances (i.e., that such circumstances are requirements for the application of Gladue principles).[97] I will return to this scope issue below.[98]

Leonard was followed in Sheck, in which the majority of the British Columbia Court of Appeal held that Gladue principles—or at least the “historical context” underlying them[99]—were relevant when the extradition of an Indigenous parent would separate him from his Indigenous children:

The impact on Mr. Sheck and his Indigenous children of the Canadian history of separating Indigenous parents and children, and the resultant destruction of Indigenous communities, which, in some ways, may have contributed to Mr. Sheck’s alleged criminality, were important factors in informing the Minister’s view.[100]

Sheck is thus important insofar as it applies Gladue principles both to the interests of the subject of the decision and to the interests of other persons directly affected by the decision.

As unsurprising as Leonard, although perhaps more important, is the extension of Gladue principles to parole in Twins. Parole is intrinsically linked to sentences, if not sentencing. After reviewing other cases in which Gladue had been extended—in both matters under the Criminal Code (bail and review board decisions) and outside of it (extradition and sentencing for civil contempt)[101]—Justice Southcott held that the determinative factor was Indigenous overincarceration and estrangement, and that Gladue principles would thus apply in “a range of circumstances in which Aboriginal peoples interact with the justice system,” including parole revocation.[102]

Gladue principles have similarly been applied to inmate segregation decisions.[103] In reviewing one such decision in Hamm v. Canada (Attorney General), the Alberta Court of Queen’s Bench emphasized the similarity to criminal sentencing and the engagement of liberty in its discussion of Gladue principles: “Given Parliament’s focus on the objectives of the sentencing system, and thus of the correctional system, in relation to aboriginal offenders, it is unreasonable for a correctional institution to deny transparency in relation to its decisions concerning whether, and how, and where, aboriginal offenders should be further deprived of liberty.”[104] Likewise, in British Columbia Civil Liberties Association v. Canada (Attorney General), the British Columbia Supreme Court partly based its holding that the use of administrative segregation infringes the section 15 Charter rights of Indigenous inmates on the superficial application of Gladue principles to segregation decisions: “There is a box to be ticked on a form and it is ticked. Meaningful results have not followed.”[105] Though the section 15 infringement was successfully appealed, the underlying factual finding of a failure to meaningfully apply Gladue principles was not questioned on that appeal.[106] While this case was not, strictly speaking, a judicial review of the underlying decisions, it is nonetheless illustrative for my purposes.

Perhaps the most surprising extension of Gladue principles (i.e., the extension to the context most unlike criminal sentencing) has been to the professional discipline of Indigenous lawyers. In Law Society of Upper Canada v. Terence John Robinson, the appeal panel of the Law Society of Upper Canada (as it then was) acknowledged that professional discipline has four relevant differences from criminal law sentencing: the lawyer’s liberty interest is not engaged, the Criminal Code provision underlying Gladue does not apply, lawyer discipline does not relate to the problem of Indigenous overincarceration, and lawyer discipline has a different purpose than criminal sentencing.[107] However, these differences meant only that Gladue principles applied differently.[108] What was determinative was that factors relevant to criminal sentencing were also relevant to determination of disciplinary penalties, particularly “the seriousness of misconduct or conduct unbecoming and circumstances that offer aggravation or mitigation[,] ... the culpability or moral blameworthiness of the licensee[,] ... [and] the character of the licensee,”[109] and to the purpose of discipline itself, “to enhance respect for, and confidence in our profession and the self-regulation of all of its members.”[110] While the conduct at issue in Robinson was itself criminal, Robinson has been followed in one decision in which the underlying conduct was not criminal.[111]

Similar to the decision in Robinson was Police Ethics Commissioner v. Ross.[112] In Ross, the Comité de Déontologie Policière considered, and appears to have applied, Gladue principles in the discipline of Indigenous police officers. The uncertainty over whether the committee applied Gladue principles arises because of the reviewing court’s use of the phrase “a examiné”: “Le comité en imposant une rétrogradation plutôt qu’une suspension de 60 jours a examiné les principes de l’arrêt Gladue. Cet arrêt, tenant compte de la surpopulation carcérale d’autochtones préconise une détermination de peine selon une approche corrective.”[113] The committee itself did not explain why or if Gladue principles applied. However, it did note the submissions of the officers that Gladue principles should apply.[114]

Similar to Robinson and Ross was the decision of the Discipline Committee of the College of Massage Therapists of Ontario in Alana Grace Nahdee, RMT.[115] The Committee in Nahdee held that the circumstances of Nahdee, as an Indigenous professional, were “unique.”[116] As an alternative to a longer suspension, the Committee applied Gladue principles to shorten the suspension and instead required Nahdee to make a presentation “regarding the importance of increasing the number of aboriginal persons working in healthcare in Ontario, and discussing her journey in overcoming her personal difficulties to become an RMT [Registered Massage Therapist].”[117]

What do these decisions have in common? In contrast to the decisions analyzed in the previous part, these decisions demonstrate a willingness to incrementally extend Gladue principles beyond narrow and strict precedents and without explicit statutory signalling. They focus on a connection to sentencing, criminal law, or liberty more broadly. At a deeper level, this difference in approach is a disagreement about the role of decision-makers and courts on judicial review and the constraints of precedent and statute.

The decision-makers in Robinson, Ross, and Nahdee go furthest by interpreting the scope of Gladue principles as transcending liberty. What is different about Nahdee, as compared to Robinson and Ross, is that Robinson and Ross are about persons within the justice system, namely lawyers and police. The alienation and estrangement from the justice system that forms the core of Gladue is most obviously relevant to lawyers and police as persons within that system. Nahdee is instead about a health professional, for whom alienation and estrangement from the justice system is not directly relevant. Instead, as I will discuss further below, Nahdee suggests that Gladue principles are more broadly relevant to estrangement not only from the justice system per se, but the administrative state itself.

Before proceeding, I distinguish tribunal decisions that cite Gladue merely as support for a recognition of anti-Indigenous bias and racism. Consider for example the human rights decision in Commission des droits de la personne et des droits de la jeunesse (Régis et autres) c. Blais, in which the tribunal cited Gladue as support for the proposition that judges may take judicial notice of “des facteurs systématiques et historiques généraux touchant les Autochtones, notamment le fait qu’ils soient victimes de préjugés raciaux.”[118] Such application of Gladue is not properly understood as an application of Gladue principles. While that factor in Blais contributed to the quantum of damages, that is qualitatively different from the idea that I introduce in the next Part of Gladue principles increasing a benefit.

IV. The Scope of Gladue Principles in Administrative Law

In this Part, I combine my analysis in Parts II and III to determine the appropriate scope of Gladue principles in administrative law. I start by considering the scope of the reasons in Gladue itself. I then group the existing cases that have applied Gladue principles. I characterize them as cases about penalty, though they may often appear to be about liberty. I then argue that there are three levels at which Gladue principles can apply, of which penalty is the first and least controversial: Gladue principles can apply to increase the threshold for a penalty to be applied, decrease a penalty, or substitute alternative penalties. The second level, which is the counterpart to penalty but one step further, is benefit: Gladue principles can apply to decrease the threshold for a benefit to be provided or to increase a benefit. The third level, and admittedly the most ambitious, difficult, and amorphous, is a residual level that is neither penalty nor benefit.

A. Context: R v. Gladue Itself

In determining the appropriate limits of the extension of Gladue principles, the reasons in Gladue must be considered. While the extent envisioned in Gladue itself is not necessarily determinative, it does provide a natural starting point and arguably a minimum extent to which Gladue principles should be applied.

While Gladue itself was about the sentencing of an Indigenous offender, Justices Cory and Iacobucci for the Court were explicit that the root problem was not overincarceration alone. Instead, overincarceration was just one highly visible indicator of a broader estrangement: “the excessive imprisonment of aboriginal people is only the tip of the iceberg insofar as the estrangement of the aboriginal peoples from the Canadian criminal justice system is concerned.”[119] The reasons in the following paragraphs then refer back twice to the “criminal justice system”: to “a crisis in the Canadian criminal justice system”[120] and to “the greater problem of aboriginal alienation from the criminal justice system.”[121] On their own, these references may be read as limiting the scope of the problem—or reflexively, the scope of Gladue principles as a response to that problem—to matters involving the criminal justice system.

But this second reference situates that overincarceration and alienation in the broader social context, “including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people ... [as well as] bias against aboriginal people.”[122] Moreover, Justices Cory and Iacobucci explicitly recognize that “[t]here are many aspects of this sad situation which cannot be addressed in these reasons.”[123] The impact of these socio-economic factors extend beyond involvement with the criminal justice system, and there is no reason to think that this bias is restricted to the criminal justice system. Thus, the reasons in Gladue in no way preclude—indeed, may be read as calling for—the extension of Gladue principles beyond criminal law.

I have suggested elsewhere that Gladue principles are necessary and appropriate wherever Indigenous estrangement from the justice system, including but not limited to the criminal justice system, is at issue.[124] What this approach would mean for administrative law depends on whether the colonially imposed Canadian administrative state is fundamentally different than, and separable from, the colonially imposed Canadian justice system. The answer would seem to be that it is not. Granted, there are few if any available quantitative indicators of alienation and estrangement from the administrative state that parallel levels of Indigenous overincarceration. The closest analogue is likely the disproportionate involvement of Indigenous children in the child protection system.[125] In contrast, no statistics are available on the eviction rates of Indigenous tenants as compared to tenants overall, for example.[126] Similarly, there is no quantitative evidence that professional regulators over-investigate or over-discipline Indigenous professionals,[127] although Indigenous lawyers disproportionately practice in settings that tend to attract more investigations and discipline.[128] Moreover, the under-representation of Indigenous persons in the legal profession itself suggests estrangement.[129] Perhaps another acknowledgement or indication that the regulatory apparatus of the administrative state is ill-suited to Indigenous professionals is the fact that the Ontario Regulated Health Professions Act does not apply to traditional “aboriginal healers” and “aboriginal midwives” practicing in Indigenous communities.[130]

Nonetheless, there is little reason to believe that the estrangement and alienation of Indigenous peoples from the colonial Canadian criminal justice system, and the bias against them within that system, can be disentangled from the estrangement and alienation from, and bias within, the colonial Canadian administrative state. Indeed, the impacts of colonialism recognized in Gladue—“poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people ... [as well as] bias against aboriginal people”[131]—apply beyond the criminal justice system. Perhaps the most powerful historical indicators of alienation and estrangement are the automatic loss of Indian status for Indigenous people who became doctors or lawyers (or clergy) and the historical prohibition on bands retaining lawyers.[132] Recent examples are only somewhat less disconcerting. A powerful example here is Anonyme, where an Indigenous person was denied legal aid—a denial that exacerbates estrangement via a missed opportunity to assist in the navigation of the criminal justice system.[133] More recently, the Ontario Health Professions Appeal and Review Board has held that the College of Physicians and Surgeons of Ontario inadequately investigated an Indigenous parent’s complaint of bias in her daughter’s treatment.[134]

It is on this basis that I argue there are three levels at which Gladue principles can appropriately apply in administrative decision-making. I describe these as levels because the first level is the least controversial, the second is more controversial, and the third is the most controversial.

That Gladue principles apply at up to three levels does not mean they apply the same way in every context. Indeed, this is the subtle brilliance of the extension of Gladue principles to the discipline of Indigenous lawyers in Robinson: Gladue principles apply in contexts different from criminal sentencing; they just apply differently.[135] At the same time, I acknowledge the concern that Gladue principles must have some limits if they are to remain meaningful. Under my approach, those limits are contiguous with the estrangement and alienation of Indigenous peoples from the Canadian administrative state.

B. Level One: Penalty

The first and least controversial level at which Gladue principles can apply is penalty: Gladue principles can apply to increase the threshold for a penalty to be applied, decrease a penalty, or substitute alternative penalties—with a broad conception of “penalty.” Indeed, penalty—in its myriad forms—is directly analogous to criminal sentencing itself. As the Supreme Court of Canada confirmed in Ipeelee, section 718.2(e) of the Criminal Code is necessary to achieve the predominant sentencing principle of proportionality by properly assessing a person’s “moral blameworthiness.”[136] To the extent that moral blameworthiness is at least partially relevant to penalty determinations outside criminal sentencing, Gladue principles serve the same function as section 718.2(e) itself.

This level neatly connects the existing extensions of Gladue principles in administrative law as discussed in Part II. At first glance, most of these existing extensions of Gladue principles appear to be about liberty. However, Moore suggests that these are better understood as being about a penalty for wrongful or undesirable or otherwise problematic conduct.[137] Such a characterization should be interpreted generously and beyond these existing extensions of Gladue principles. For example, the eviction in Re Can-Am and the compensation refusal in Desmoulin were, despite their characterization in the respective reasons as non-criminal matters, fundamentally about consequences for criminal conduct. For that matter, so were the disciplinary decision in Robinson and the termination in Muskrat Falls.

Indeed, characterizing liberty as the unifying determinative factor among these cases as to whether Gladue principles apply is problematic given DB (Re). Involuntary treatment unquestionably engages the liberty interest, as well as the security of the person and potentially life where the treatment is dangerous. Nonetheless, Gladue principles were not extended to this context—perhaps because compulsory treatment is not a penalty, and thus it sits awkwardly with the existing precedents.

Similarly, the language in decisions such as Leonard—that “the Gladue factors are not limited to criminal sentencing but that they should be considered by all ‘decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system’ ... whenever an Aboriginal person’s liberty is at stake in criminal and related proceedings” [138]—is not necessarily limiting. This language, while reinforcing that Gladue principles apply in “criminal and related proceedings,” leaves “related proceedings” undefined. Moreover, it cannot preclude the extension of these principles beyond these boundaries.[139]

While Robinson and Ross might suggest that Gladue principles apply to professional discipline in only some contexts, I argue that, as in Nahdee, those principles apply to any disciplinary penalty imposed on any Indigenous professional. Robinson and Ross were about disciplinary penalties for professions intricately linked to the justice system (lawyers and police, respectively), and Robinson was about disciplinary consequences for criminal conduct. Thus, they might support a conception of Gladue principles that applies only where alienation and estrangement from the justice system is directly relevant. However, under my broader approach, where Gladue principles apply to alienation and estrangement not just from the justice system but also from the administrative state itself, these are not limiting factors. In this spirit, consequences such as an eviction, an employment termination, and a denial of compensation for victims of crime would all qualify as penalties even if the underlying conduct was not criminal.

Under this approach, Gladue principles properly apply to mitigate penalties in decisions such as those discussed above—eviction (Re Can-Am), compensation (Desmoulin), and employment termination (Muskrat Falls), as well as professional discipline (Robinson and Nahdee).

Moreover, using alienation and estrangement from the administrative state as the test, Gladue principles would also apply to costs orders against Indigenous persons in administrative proceedings.[140] I have argued elsewhere that costs orders in disciplinary proceedings against Indigenous professionals do not invoke alienation and estrangement from the justice system in the same way as disciplinary penalties themselves.[141] Therefore, using that as the test for the scope of Gladue principles, it is unclear whether those principles apply to costs orders.[142] However, costs orders are a fundamental aspect of the administrative state. Gladue principles should thus apply in costs contexts.

I acknowledge here that the application of Gladue principles is more contestable in contexts such as Lewis where an Indigenous person is not the subject of the penalty decision, but will be directly affected by that decision. The less direct the effect, the less obvious the application of Gladue principles.

C. Level Two: Benefit

Outside of proceedings which involve the imposition of penalties for unlawful or otherwise problematic conduct, existing extensions of Gladue principles are uninformative and it remains unclear how Gladue principles should affect outcomes in administrative decisions.

I argue that a second level at which Gladue principles should apply in administrative law is in relation to a benefit. As a parallel or converse to penalty, Gladue principles can apply to decrease the threshold for provision of a benefit or to increase a benefit. Penalty and benefit are linked and the line between them is not always clear. For example, the applicant in Desmoulin was seeking a benefit but was denied compensation essentially as a penalty for his subsequent conduct. It would be arbitrary and unprincipled for the application and impact of Gladue principles to be contingent on a fuzzy and manipulatable distinction between penalty and benefit.

From the cases reviewed in Parts II and III, it seems that the legal criteria for a penalty tend to be more open-ended and thus more amenable to the consideration of Gladue principles than the legal criteria for a benefit, which tend to be specified in statute and closed. Recall here that Gladue principles did not apply in the legal aid and disability support decisions mentioned above, because of the language of the relevant statutes. However, there are benefit contexts—such as victims’ compensation in Desmoulin—in which open-ended statutory criteria could allow Gladue principles to be incorporated.[143] Legislative amendments allowing decision-makers to apply an open-ended list of considerations would increase the potential for Gladue principles to be applied in this “benefit” level of decisions.

As with penalty, I argue that Gladue principles are not just applicable where alienation and estrangement from the justice system is relevant, such as the legal aid benefits at issue in Anonyme. Instead, they are applicable to any administrative decision on benefits because their applicability stems from alienation and estrangement from the colonial administrative state itself.

At the same time, I acknowledge the argument that the extension of Gladue principles beyond sentencing-like contexts distorts or at least dilutes their meaning. That is, the extension either introduces a concept originated in criminal law to contexts with no relation to criminal law, or it disconnects the principles from their roots such that they retain no inherent meaning. Nonetheless, on balance, I believe that these extensions of Gladue principles remain firmly anchored in the alienation and estrangement of Indigenous peoples and thus retain a clear and meaningful content and function as a common law legal concept—even when they go beyond penalty.

D. Level Three: Residual (Neither Penalty Nor Benefit)

The two levels of penalty and benefit will encompass the majority of administrative law proceedings. But there will be some that remain, and these I identify as being a third residual level that is neither penalty nor benefit. The best example of this level is consent and capacity to medical treatment, as in DB (Re).

The capacity and consent context is difficult because, unlike the other kinds of decisions that I have considered, it is not about the imposition of a penalty (such as professional discipline or an eviction) or the provision of a benefit (such as social assistance, legal aid, or compensation for victims of crime). While involuntary treatment may surely seem like a penalty to a patient, that perspective is instructive but incomplete and not determinative. Unlike a penalty or a benefit, it is not obvious how the test for capacity could incorporate a patient’s Indigeneity. It is in such contexts, even more so than in penalty or benefit determinations, that a careful examination of the historical and social context will be particularly necessary. Counsel’s submissions would likewise need to be both creative and responsive by considering how alienation and estrangement of Indigenous peoples from the administrative state, and pervasive bias against Indigenous peoples within the administrative state, manifest in the specific context and how they can best be acknowledged and counteracted.

Given the history of involuntary treatment and experimentation on Indigenous persons in Canada,[144] especially within the context of discriminatory healthcare in residential schools as documented by the TRC,[145] a higher evidentiary and legal threshold could be warranted. However, insofar as involuntary treatment is indeed for the protection and the benefit of the individual in question—a loaded question well beyond the scope of this paper—a higher threshold is not in the interests of patients generally. Moreover, to the extent that involuntary treatment is in the public interest, a higher threshold is at some level contrary to that public interest. Any such changes would require legislative amendment.

What other kinds of decisions would fit within this residual level? Consent and capacity for medical treatment may well be unique. Recall however the motion to vary child support in Armstrong.[146] While outside administrative law, child support is an example of a duty or an obligation that is not “punitive,”[147] that is, it is perhaps not properly understood as a penalty.

Legislative guidance will be appropriate and sometimes necessary in these residual contexts to indicate how Gladue principles apply and how this difficult balance should be struck.

V. Gladue By Any Other Name?

There is an important caveat to my analysis in the previous Parts. The fact that a decision-maker or court explicitly declines to apply Gladue principles, or that Gladue principles are not explicitly invoked, does not necessarily mean that Gladue-like considerations are not being applied. For example, the Divisional Court in Desmoulin, after holding that Gladue principles did not apply, nevertheless held that the board had properly considered the applicant’s Indigeneity:

This is not to say that the Board should not consider the impact of the cultural background and travails of our aboriginal population in considering the role that a criminal record should play in undertaking the balance outlined in s. 17(1) of the Compensation for Victims of Crime Act or that the Board failed to do so in this case. ... In any event, the Board was aware of [the] cultural background of Frank Desmoulin.[148]

Similarly, while the applicant in Sheck framed his argument in Gladue principles,[149] the majority in Sheck observed that “one has to appreciate the same historical context that underlies the Gladue factors”[150]—seemingly suggesting that Gladue principles themselves might not be strictly applicable. Does the terminology used, and the Desmoulin distinction between criminal-related and non-criminal-related matters, make a difference?

Likewise, consider the reasons of the British Columbia Supreme Court in Inglis v. British Columbia (Minister of Public Safety).[151] Inglis, although framed as a Charter action, was essentially a judicial review of the cancellation of a program that allowed mothers in provincial jails, many of them Indigenous, to keep their babies with them.[152] The court in Inglis relied on Gladue itself only to establish that Indigenous persons are a historically disadvantaged (and overincarcerated) group for the purpose of an analysis under section 15 of the Charter.[153] However, the decision at issue in Inglis, in its application to Indigenous inmates, could likely have been characterized as unreasonable under Gladue principles absent Charter arguments.

At a substantive level, the importance is in the considerations applied and not in the terminology used. At the same time, Gladue has become a helpful shorthand for a complex problem and a family of approaches to that complex problem.[154] Courts on judicial review should ask whether Gladue principles have been substantively applied, whether or not they are explicitly accepted or rejected—or even explicitly mentioned—by name. However, the explicit mention of Gladue principles, and their purported application or rejection, will be a helpful indicator to courts. As in Robinson, Gladue principles can be applied in different ways in different contexts. The adoption of Gladue terminology does not, and should not, require that the underlying principles are being applied in the same way as in criminal sentencing.

The question of whether extending Gladue principles beyond penalty erodes their meaning and functionality is, at one level, a question of terminology. We could alternatively substitute another term for Gladue principles in benefit determination—for example, Desmoulin principles—and another term in residual contexts. These would remain, however, a family of principles related by their anchors in Indigenous alienation and estrangement. Retaining them as Gladue principles emphasizes that alienation and estrangement, rather than the criminal justice context.

VI. Standard of Review

Given the three levels I have identified in which Gladue principles can apply, what is the standard of review a court will use to assess such decisions?

Following the recent restatement of the standard of review analysis by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov,[155] whether Gladue principles are applicable is a question of law that will be reviewable on a standard of reasonableness—except if there is a statutory right of appeal, in which case the standard of review will be correctness.[156] The application of Gladue principles to the individual circumstances of a particular decision will be a question of mixed fact and law for which the standard of review will be reasonableness. Again, the question is not whether the decision-maker mentioned or rejected Gladue by name,[157] but whether substantive Gladue principles were applied.

The majority in Vavilov established “a presumption that reasonableness is the applicable standard whenever a court reviews administrative decisions.”[158] That presumption is rebuttable where the legislation states otherwise, either explicitly or by creating an appeal to a court, and “where the rule of law requires that the standard of correctness be applied[:] ... constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies.”[159]

Gladue principles, despite their extension over time, remain—at least at present—a common law principle and not a constitutional principle. Whether or not they properly apply in a specific context is neither a constitutional question, a question of central importance to the legal system, nor a question about jurisdictional boundaries. Thus, the reasonableness presumption of Vavilov is not rebutted.

Naiomi Metallic has argued that deference in administrative law reinforces statutory and policy regimes that do not recognize the interests of Indigenous peoples.[160] Arguably, a reasonableness standard for the review of the decision to apply Gladue principles is problematic for similar reasons.

Nonetheless, under my analysis, given the ever-present alienation and estrangement of Indigenous peoples from the administrative state, it will almost always be unreasonable to fail to consider applying Gladue principles, and it will generally be unreasonable to decline to apply Gladue principles, where the person who is the subject of the decision is Indigenous and the enabling statute does not preclude their application. Where the person who is the subject of the decision is not Indigenous, but an Indigenous person is directly affected by the decision, it may be unreasonable to fail or decline to apply Gladue principles. However, it is not necessarily unreasonable for a decision-maker to apply Gladue principles but determine that they do not affect the result in the particular matter.

VII. Recommendations

The above analysis supports the following recommendations for counsel, administrative decision-makers, and judges on judicial review. There is also an important role for legislators and executive authorities.

Administrative decision-makers should consider Gladue principles in any decision about the interests of an Indigenous person, particularly where that person is not represented by counsel. It will be important to invite the person or their counsel to identify what the effect of Gladue principles should be, especially where the decision is not about a penalty or a benefit and thus falls into my third or “residual” level. Judges on judicial review of any decision about the interests of an Indigenous person should likewise invite submissions on how Gladue principles should apply. Moreover, where declining to apply Gladue principles, decision-makers and reviewing judges should resist the conclusory assertion that the context of the decision is too different from criminal sentencing. And with respect to Justice Watchuk in Moore, the absence of an exact precedent should not be given excessive weight; decision-makers and judges should be open to incrementally extending Gladue principles to new situations as they would for any other common law doctrine. Moreover, given the potential for judicial review of an administrative decision, or an appeal of a judicial review, both administrative decision-makers and judges would be wise to address Gladue principles in the alternative even when doing so is strictly unnecessary to decide the matter.

Counsel should argue Gladue principles in any decision about the interests of an Indigenous person and any judicial review of such a decision—but they should demonstrate clearly in their submissions how Gladue principles would apply and how their application would change the result. Where the decision is about a benefit or penalty, Gladue principles may lower the threshold for a benefit or increase a benefit, or increase the threshold for a penalty or decrease a penalty, if the relevant statutory framework allows it. However, where the decision is not about a benefit or penalty, the potential role for Gladue principles is unclear and particular creativity and responsiveness by counsel will be necessary. More specifically, counsel should carefully consider how the alienation and estrangement of Indigenous peoples from the administrative state, as well as the pervasive bias against Indigenous peoples within the administrative state, are manifested in the specific context, and how that alienation and bias can best be acknowledged and counteracted. As a foundation for these arguments, and particularly to the extent that there remains uncertainty over the proper scope of judicial notice and the need for specific evidence about the circumstances of the particular Indigenous person who is the subject of the decision, counsel should introduce such evidence where available.

Moreover, Gladue principles might properly apply when the decision directly affects the interests of an Indigenous person who is not a party, or the interests of that party are a relevant consideration, such as the Indigenous child of the non-Indigenous parent whose deportation was at stake in Lewis. Decision-makers, judges, and counsel must turn their minds to remoteness here.

Parliament and the legislatures should carefully consider whether Gladue principles are relevant to each of the administrative decision-makers that operate under their statutory authority and, if so, then amend the enabling statutes to allow—or, better, require—Gladue principles to be considered and specify how they apply. This will be most important in contexts where enabling statutes implicitly disallow the consideration of Gladue principles. Likewise, executive authorities should ensure that regulations and substatutory guidance for decision-makers take Gladue principles into account.

Conclusion

In this article, I have argued that there is a role, indeed a powerful role, for Gladue principles in administrative law. By discarding the anemic view that Gladue principles are solely a statutory principle, and by recognizing a legitimate ability, if not a duty, of administrative decision-makers to engage in incremental but creative extension of those principles to new contexts, administrative law can be transformed from a barrier into a gateway toward reconciliation. While I certainly do not argue that Gladue principles are a panacea for reconciliation, they are nonetheless a feasible component that does not require wholesale redesign of the legal system, just a re-energization of traditional legal creativity. Indeed, the omission of Gladue principles from administrative law—in fact, anything other than their zealous adoption—hamstrings those principles’ ability to achieve their intended purposes across a wide swath of the legal system and the administrative state.

True and successful reconciliation requires, among other things, the acknowledgement of the estrangement and alienation of Indigenous peoples not only from the colonial Canadian criminal justice system or the justice system more broadly, but also from the colonial Canadian administrative state itself. In terms of the conception of reconciliation adopted by the TRC, the administrative state must respectfully—and thus, honestly and deliberately—engage with the unique circumstances of Indigenous persons. As the TRC put it: “Reconciliation is not an Aboriginal problem; it is a Canadian one.”[161] It is in this respect that the proper application of Gladue principles in administrative law is essential. This application, particularly in decisions that are not about penalties or benefits, will require creativity and responsiveness not only from counsel but also from administrative decision-makers, reviewing courts, and even legislatures and executive authorities themselves. While it is easy to blame decision-makers for rejecting Gladue principles out of hand, as demonstrated for example in Re Can-Am, counsel share an obligation to help illustrate how those principles properly apply in specific circumstances, particularly where there is no exact precedent on which to rely.

While the standard of review for failing to consider or declining to apply Gladue principles will be reasonableness, such failure to do so will rarely be reasonable, particularly if the decision under review concerns a benefit or a penalty for an Indigenous person—assuming the enabling statute does not preclude their application.

Indeed, I emphasize in closing that legislators have a critical role in ensuring that enabling statutes do not inadvertently or covertly preclude the application of Gladue principles. As I have demonstrated above, this tends to be true where a benefit is at issue. Some legislation will need to be amended, whether merely to allow decision-makers to consider all relevant factors or ideally to specifically direct them to consider Gladue principles where applicable. There is an immediacy and urgency to this legislative project. Going forward, legislative counsel should add Gladue principles to the parameters they establish when receiving drafting instructions.