Gladue jurisprudence refers to R v Gladue, 1999 CanLII 679 (SCC) and the case law implementing Gladue principles. Briefly, the Gladue decision holds that decision-makers ought to consider any unique background or systemic factors to address the over-incarceration of Indigenous people in prisons. There is much criticism as to Gladue’s ameliorating effect on the Indigenous prison population since 1999; however, this is not another criticism. Rather, this Article will provide practitioners with three examples to consider when advancing Indigenous client cases, especially where liberty interests or security of the person is concerned.
Considerations during professional discipline cases. In 2013, the Law Society Appeal Panel (Ontario) considered and applied Gladue principles after concessions from the Law Society of Ontario’s counsel that Gladue could apply to discipline proceedings. Those concessions included: (a) deciding an appropriate penalty when considered against any unique background or systemic factors that have played a part in bringing the licensee before the decision maker; (b) the licensee does not have to prove a causal connection between being an Indigenous person and the subject conduct as long as the background and systemic factors played a role in bringing the offender before the hearing panel; and (c) the hearing panel may take judicial notice of systemic racism and discrimination and, with a proper evidentiary foundation, can give mitigating effect to systemic discrimination when it impacts on misconduct and influences the licensee’s actions. See Law Society of Upper Canada v. Terence John Robinson, 2013 ONLSAP 18 (CanLII), at para 75. For another discipline case seeking to apply Gladue, see Police Ethics Commissioner v. Ross, 2003 CanLII 57340 (QC CDP), https://canlii.ca/t/1v5sj,
A Note on Evidence. Practitioners representing Indigenous clients should also heed the following caution: evidence is not required to make a finding that an Indigenous individual was or is impacted by an Indian Residential School. The panel cautioned against “placing an impossible burden on [Indigenous] people to demonstrate such impact” (Robinson, para 79). Ipeelee held that the judiciary can take notice of the systemic and background factors impacting Indigenous people (Robinson, para 44). Ontario’s Statutory Powers Procedure Act also invites tribunals to take judicial notice of such facts.