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R v Gladue, Gladue Principles, doctrinal uncertainty, lawyer discipline


In the wake of the Truth and Reconciliation Commission, the legal profession and its regulators have focused on the training and education of lawyers and law students, particularly in “intercultural competency,” as emphasized in Calls to Action 27 and 28.9 For example, in 2018 the Advocates’ Society, the Indigenous Bar Association, and the Law Society of Ontario jointly published a Guide for Lawyers Working with Indigenous Peoples, which observed—among other things—that “there is no such thing as a culturally neutral practice of law.” However, this training and education focus is important but incomplete: The journey toward reconciliation will also involve law societies’ re-examination of their relationship with and regulation of Indigenous lawyers.

A key facet of the regulation of Indigenous lawyers is the disciplinary process, including the determination of penalties. It is in this respect that the applicability of Gladue principles warrants consideration.

In the twenty years since Gladue, Gladue principles have been extended well beyond their origin in criminal sentencing. However, there have been only two matters in which these principles have been explicitly applied by professional discipline tribunals—both in disciplining lawyers. Neither of these decisions were judicially reviewed, which means no court has stated whether or not this extension is appropriate. Moreover, these discipline decisions are not considered in the leading treatise on lawyer discipline. As a result, there is doctrinal uncertainty.

In this article, I address this doctrinal uncertainty by analyzing these disciplinary decisions and tracing the appellate extensions of Gladue that preceded them and the decisions of the Supreme Court of Canada that followed them to determine whether these disciplinary decisions were correct in applying Gladue principles.

For my purposes, Gladue principles may be described 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.

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Lakehead LJ