Creative and Responsive Advocacy for Reconciliation: The Application of Gladue Principles in Administrative Law.

• Author: Martin, Andrew Flavelle
• Position: Canada

Introduction I. The Meaning and Legal Character of Gladue Principles II. Why Do Administrative Decision-Makers Decline to Apply Gladue Principles? III. Counter-Examples: Why Do Administrative DecisionMakers Apply Gladue Principles? IV. The Scope of Gladue Principles in Administrative Law A. Context: R v. Gladue Itself B. Level One: Penalty C. Level Two: Benefit D. Level Three: Residual (Neither Penalty Nor Benefit) V. GladueBy Any Other Name? VI. Standard of Review VII. Recommendations Conclusion Introduction

In the words of the Truth and Reconciliation Commission of Canada (TRC), "[virtually 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 "[reconciliation 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...