But see Martin, supra note 7 (for discussion of the application of Gladue principles in another administrative law context: lawyers' discipline). I argue that the common thread in these decisions is a liberty or wrongdoing conception of Gladue principles. This leads me to analyze in Part IV the applicable scope of Gladue principles in administrative law.
I have previously defined the Gladue Principles as “a recognition of the unique circumstances of Indigenous peoples, particularly their alienation from the criminal justice system, and the impact of discrimination, culmination.
Why Do Administrative Decision-Makers Decline to Apply Gladue Principles?
The underlying facts and the alleged failure to consider the Gladue principles were also the basis of an unsuccessful human rights complaint (see A v Law Society of British Columbia, 2018 BCHRT 256, reconsideration denied, 2019 BCHRT 29). One example is that in child protection cases the courts disagree on the application of the Gladue principles. The second reason for refusing to apply the Gladue principles is less conceptual and more pragmatic: that the decision maker cannot determine how the Gladue principles should be applied correctly in the specific context or case, that is, what influence they should have on the decision.
Like the first reason, this third reason for refusing to apply the Gladue principles is not unique to administrative law. Conversely, see Anonymous QCCSJ 337 at paras 6, 11 (Legal Services Commission Review Panel), where the principles of Gladue were argued, but the Panel, without further reference to Gladue, held that the applicant met one of discretion criteria in the relevant statute. A fourth possible reason is that Gladue's principles or Gladue's arguments are unnecessary to determine the issue, (ie, that the judgment or judicial review could be determined on other grounds).
A fifth possible reason for refusing to apply Gladue's principles is that there is not enough relevant evidence before the decision maker. Willier, on the applicability of the Gladue principles to costs orders in disciplinary proceedings involving Indigenous lawyers. I acknowledge here that Gladue's principles may not change the outcome in every case—especially when the decision is binary, such as determining eligibility for benefits.
Tuckanow also deals with uncertainty as to what impact Gladue's principles might have in the particular circumstances: "Mr. See also Gunner (Re), [2017] ORBD No 3001 ("[w]hile it is unclear given the above disposition, found the Board that there was no evidence directly related to the evidentiary basis necessary to consider the Gladue principles' at paragraph 19).
Counter-Examples: Why Do Administrative Decision-Makers Apply Gladue Principles?
Perhaps the least surprising extension of Gladue's principles of judicial review beyond Criminal Code matters is extradition. Leonard was followed in Sheck, in which a majority of the British Columbia Court of Appeal held that the principles of Gladue—or at least. 97 See Martin, supra note 7 (“Leonard, however, leaves open the field of “related proceedings” and whether engagement of the liberty interest is necessary, not merely sufficient, for the application of the Gladue principles.
Just as surprising as Leonard, though perhaps more important, is the extension of the Gladue principles to parole in Twins. Charter Rights of Indigenous Prisoners on the superficial application of Gladue principles to segregation decisions: “A box needs to be checked on a form and it is checked. Perhaps the most surprising extension of the Gladue Principles (i.e., the extension to the context most distinct from criminal sentencing) has been to the professional discipline of Indigenous lawyers.
The uncertainty as to whether the committee applied Gladue principles arises because of the review court's use of the phrase. However, it noted the submissions of the officers that Gladue principles should apply.114. The decision makers in Robinson, Ross, and Nahdee go the furthest by interpreting the scope of Gladue principles as transcending liberty.
The Scope of Gladue Principles in Administrative Law
Instead, as I will discuss further below, Nahdee suggests that Gladue principles are more broadly relevant to alienation, not only from the legal system itself, but the administrative state itself. Although this factor in Blais contributed to the amount of harm, it is qualitatively different from the idea that I introduce in the next part of the Gladue Principles of increasing an advantage. The reasons in Gladue thus in no way preclude - indeed can be read as requiring - an extension of the Gladue principles beyond the criminal law.
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 freedom. They may therefore support a conception of Gladue principles that apply only where alienation and alienation from the legal system are directly relevant.
However, in my broader approach, where Gladue's principles apply to alienation and alienation not only from the justice system, but also from the administrative state. I argue that the second level at which Gladue's principles should apply in administrative law is related to benefits. Recall that the Gladue principles did not apply to the legal aid and disability support decisions noted above because of the language of the relevant statutes.
As with sentencing, I argue that the principles of Gladue do not apply only when alienation and removal from the justice system is significant, such as the legal aid benefits at issue in Anonyme. At the same time, I accept the argument that extending Gladue's principles beyond sentencing-like contexts distorts or at least dilutes their meaning.
Gladue By Any Other Name?
Legislative guidance will be appropriate and sometimes necessary in these remaining contexts to indicate how Gladue principles apply and how this difficult balance should be struck. Inglis relied only on Gladue itself to establish that indigenous persons are a historically disadvantaged (and over-incarcerated) group for the purpose of an analysis under section 15 of the Charter.153 The decision at issue in Inglis, in its application to aboriginal prisoners, however, could arguably have been characterized as unreasonable under Gladue principles absent Charter arguments. At the substantive level, the importance lies in the considerations applied and not in the terminology used.
At the same time, Gladue has become a useful shorthand for a complex problem and a family of approaches to that complex problem.154 Courts of judicial review must ask whether Gladue principles have been substantively applied, whether or not they are expressly accepted or rejected— or even explicitly mentioned - by name. However, the explicit mention of Gladue principles, and their alleged application or rejection, will be a useful indicator for courts. The adoption of Gladue terminology does not, and should not, require that the underlying principles be applied in the same manner as in criminal sentencing.
The question of whether extending Gladue's principles beyond punishment undermines their meaning and functionality is, on one level, a question of terminology. Another option is to replace Gladue's principles with another term—for example, Desmoulin's principles—in determining benefits. If we keep them as Gladue's principles, we emphasize this alienation and estrangement, not the criminal justice context.
Standard of Review
Vavilov,155 whether Gladue's principles are applicable is a question of law that will be tested under a standard of 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 the Vavilov case established "the presumption that reasonableness is the applicable standard whenever a court reviews administrative decisions."158 This presumption can be rebutted if the law provides otherwise, either expressly or by bringing an appeal to the court, and "where the rule of law requires application of the correctness standard [:].
Whether it properly applies in a particular context is neither a constitutional question, a question of central importance to the legal system, nor a question of jurisdictional boundaries. Naiomi Metallic 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 reviewing the decision to apply Gladue principles is problematic for similar reasons. Nevertheless, under my analysis, given the ever-present alienation and alienation of indigenous peoples from the administrative state, failing to consider applying Gladue principles would almost always be unreasonable, and it would generally be unreasonable to refuse to apply Gladue.
Desmoulin, supra note 50 (“[t]here there is nothing to indicate that the Council erred in principle by not specifically referring to the so-called Gladue principles. Such an omission does not constitute an error of law” at paragraph 32). 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 not to apply or refuse to apply the Gladue Principles. However, it is not necessarily unreasonable for a decision maker to apply the Gladue Principles but find that they do not affect the outcome in the particular matter.
Recommendations
In support of these arguments, and particularly to the extent that uncertainty remains as to the appropriate scope of judicial notice and the need for specific evidence of the circumstances of the particular Indigenous person subject to the decision, counsel should introduce such evidence, if available. Furthermore, Gladue's principles could properly apply where the decision directly affects the interests of an Indigenous non-party, or that party's interests are a significant factor, such as the Indigenous child of a non-Indigenous parent whose deportation was at issue in Lewis. Parliament and legislators should carefully consider whether the Gladue principles are relevant to each of the administrative decision makers acting under their statutory authority, and if so, then amend the enabling statutes to permit—or better, require—the Gladue principles to consider and indicate how they are used.
This will be most important in contexts where enabling statutes implicitly preclude consideration of Gladue's principles. Likewise, executive authorities should ensure that regulations and statutory guidance for decision-makers take Gladue's principles into account. In this article I have argued that there is a role, indeed a powerful role, for Gladue's principles in administrative law.
Rejecting the anemic view that the Gladue principles are only a legal principle and recognizing a legitimate ability, if not a duty, of administrative decision makers to engage in the incremental but creative extension of these principles to new, administrative contexts. the law can be transformed from a barrier to a gateway to reconciliation. Indeed, administrative law's exclusion of Gladue's principles—indeed, anything other than its zealous adoption—thwarts those principles. True and successful reconciliation requires, among other things, recognition of the removal and alienation of Indigenous peoples not only from the colonial Canadian criminal justice system or the justice system more broadly, but also from the Canadian colonial administration.