In criminal law, courts are required to apply the Gladue principles to defendants who identify as Indigenous. This duty requires courts to consider the impact of colonization and discrimination on Indigenous peoples. Courts also need to consider alternatives to jail. In part these principles recognize that the percentage of Indigenous people in Canadian jails is vastly disproportionate to that of non-Indigenous people. The movement to translate Gladue principles to disciplinary proceedings has been slow but may be gaining momentum. A thoughtful article by Andrew Flavelle Martin in the Lakehead Law Journal advances the discussion considerably.
The article focusses on the legal profession with particular emphasis on one case: Law Society of Ontario v. McCullough, 2022 ONLSTH 63 (CanLII). In that case a lawyer had misappropriated over $100,000 to pay for shortfalls in her firm’s operating expenses. The funds were reimbursed, typically within days or weeks. The conduct was discovered during a spot audit by the regulator. The lawyer admitted the conduct, corrected her books, and expressed remorse. The presumptive penalty for such a misappropriation is revocation, which is imposed in almost every case. Applying the Gladue principles the hearing panel imposed an eight-month suspension plus certain conditions.
Martin makes the following observations:
- The circumstances of the lawyer were “unique” and “truly extraordinary and compelling”. She had experienced “hardship, disadvantage, and violence” flowing from her Indigenous identity. She had adopted four nieces and nephews who would otherwise have gone into child protection. She was stressed in her support of family members. She had a largely Indigenous clientele, many of whom were served through legal aid that paid significantly less to lawyers than most privately paying clients.
- The regulator had issued an institutional commitment to reconciliation for Indigenous peoples. The hearing panel felt compelled to apply that commitment to the case.
- A formal Gladue report was filed with the hearing panel. Such reports are common in criminal cases. A Gladue report contains information about the individual and their own, their family’s and their community’s history. It also contains information about how the Indigenous community views the conduct and the remedies they would typically impose for it (e.g., restorative justice).
- The Gladue principles can (but will not necessarily) rebut the powerful presumptive penalty of revocation for this type of conduct.
- In addition to the lower suspension, a unique term and condition was imposed. The lawyer was required to meet with an Elder or Traditional Knowledge Holder. There would be very limited monitoring of the nature and content of the meeting(s) by the regulator.
- The hearing panel emphasized the cooperation, remorse, and restitution by the lawyer as being critical considerations in this case.
- The outcome would likely not be the same but for the exceptional circumstances of the individual lawyer. Revocation might easily apply to other lawyers identifying as Indigenous who engage in similar conduct.
It is unclear how persuasive this tribunal-level decision will be for other professions. However, Bill 36 in British Columbia, enacting the Health Professions and Occupations Act, contains several provisions that are consistent with the approach described in the Martin article.