If you identify as Aboriginal and are charged with a crime, you have rights under the Criminal Code of Canada. These rights are often called Gladue rights because of a Supreme Court of Canada case called Gladue.
Gladue rights are based on the duty of the judge to consider the unique circumstances (experiences) of Aboriginal peoples. These include the challenges of colonization you, your family, and community faced and resisted as Aboriginal people, and continue to affect you today — such as racism, loss of language, removal from land, Indian residential schools, and foster care. These challenges are called Gladue factors. Judges must keep this information in mind and consider rehabilitation and community-based sentencing options other than jail.
This is called a restorative justice approach. The goal of a restorative justice approach is to balance accountability and rehabilitation.
The judge might still decide to send you to jail. If your sentence is to go to jail, the judge must keep in mind your Gladue rights to decide how long you'll be in jail and your probation.
Canadian courts have found that Gladue rights apply at:
- parole board
- mental health review board
- professional disciplinary decisions
- long-term or dangerous offender hearings
If you're charged with a crime
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Who has Gladue rights?
Gladue rights apply to all Aboriginal peoples:
- First Nations, including status Indians and non-status Indians
You have Gladue rights if you live:
- on reserve
- off reserve
- in an Aboriginal community
- in a non-Aboriginal community
You also have Gladue rights if:
- you're a youth, or two-spirited or LGBTQ person
- a non-Aboriginal family adopted you
- you grew up in a foster home
- you didn't know you were Aboriginal until recently
- you grew up away from your Aboriginal family, culture, and community
How are Gladue rights applied to my criminal case?
It's your right to have Gladue rights applied to your case. Tell your lawyer or the court as soon as possible that you're Aboriginal. Your lawyer should make sure your Gladue rights are respected. Even if you don't have a lawyer, the judge must still apply Gladue rights.
The judge will want to know:
- about you, your family, and your community/nation
- what kinds of community or healing options are available to you
You, an advocate, or a lawyer can give this information to the court in a Gladue submission or a Gladue report. The judge must consider your Gladue rights even if you can't provide a Gladue submission or a Gladue report.
Before deciding on your bail conditions or sentence, the judge needs to think about:
- the background (the story) of you, your family, your community, and your Aboriginal culture
- what Gladue factors might have played a part in you getting in trouble with the law (such as challenges and resistance to colonization, racism, foster care, abuse, poverty, Indian residential schools)
- your current needs and strengths, and the best options for your healing
- where you can get help for the challenges that brought you to court
- perspectives from your family and community/nation about healing or ways to repair the harm done
The judge might order the following information to guide their decision:
- Gladue submissions (oral or written statements about you as an Aboriginal person)
- forensic psychiatric assessments
- pre-sentence report with Gladue section, written by a probation officer
- Gladue report, written by a Gladue report writer
If the judge decides to send you to jail, they must still consider your Gladue rights to decide:
- how much time you have to spend in jail
- how long your probation will be once you're released from jail
- conditions you need to follow on your probation
What is a Gladue submission?
A Gladue submission is when information is given to a judge about your unique experience as an Aboriginal person. A Gladue submission can be presented verbally (out loud) by you, an advocate or lawyer, or written down and given to the judge.
A Gladue submission tells the court about the Gladue factors of colonization that affected you, your family and community, and how they continue to affect you today. Some examples of Gladue factors:
- Are you, your family, or community members Indian residential school survivors?
- Does your family practise their culture?
- How did your family resist laws against holding ceremonies?
- Have you been the victims of racism or other forms of discrimination?
You, your advocate, or your lawyer can make a Gladue submission at bail, sentencing, appeals, parole board, extradition, mental health review board, professional disciplinary decisions, and long-term or dangerous offender hearings.
What is a Gladue report?
A Gladue report is a written document that weaves together your story with information from interviews with family, Elders, and community members. The report describes your unique experiences as an Aboriginal person. It has two main parts:
- the history and present day story about you, your family, and your community/nation
- community-based options for your path forward grounded in healing
A Gladue report has more information about your story and healing path forward than a Gladue submission or a pre-sentence report completed by a probation officer. The Gladue report is given to the judge, Crown lawyer, and your lawyer or advocate before the sentencing or bail hearing.
A report can be 10 to 30 pages long and take eight weeks or longer to write. If you want to get a Gladue report, your bail or sentencing hearing might need to be delayed for a few weeks. You or a Gladue writer can prepare the report.
You might want a Gladue report to give the judge or decision maker at bail, sentencing, appeals, parole board, extradition, mental health review board, professional disciplinary decisions, and long-term or dangerous offender hearings.
If you're working with a legal aid lawyer, Legal Aid BC might be able to have a trained writer prepare your report for free.
What if I don't want to talk about my personal information in court?
Some of your story might be very private, sensitive, and hard to think and talk about.
If you don't want to talk in court, you can have your Gladue submission presented to the judge orally (out loud) by your lawyer or advocate. If you don’t want the information discussed out loud, you, your advocate, or your lawyer can give the judge the Gladue submission in writing.
Or, if you have a Gladue report, your advocate or lawyer can refer the judge to certain sections of the Gladue report so the information doesn’t have be said out loud.
Aboriginal community legal workers — Give legal information and limited advice services
Legal information outreach workers — Give legal information and make referrals
Native Courtworker and Counselling Association of BC — Culturally appropriate services to Aboriginal people involved in the criminal justice system
BC Association of Friendship Centres — Find a friendship centre in your area
BC211 — Free confidential referrals to help and information — Call 211
Ministry of Indigenous Relations and Reconciliation — See their Guide to Indigenous Organizations and Services in British Columbia for organizations that can help
PovNet — Information about poverty issues and links to organizations that can help
Access Pro Bono Law Clinics — Free legal help
Lawyer Referral Service — Helps you find a lawyer to take your case — Call 604-687-3221 (Greater Vancouver) or 1-800-663-1919 (elsewhere in BC)
Carole James, MLA, Community Office — Free legal clinic — Call 250-412-7794
Department of Justice Community-based Justice Programs — Alternatives to mainstream justice processes
First Nations and Métis Outreach Program (The Law Centre, University of Victoria) — Free legal help — Victoria
Native Courtworkers and Counselling Association of BC — Culturally appropriate services to Aboriginal people involved in the criminal justice system — Call 604-985-5355 (Greater Vancouver) or 1-877-811-1190 (elsewhere in BC)
Bella Coola Legal Advocacy Program — Free legal help — Bella Coola
UBC Indigenous Community Legal Clinic — Free legal help on various legal matters — Call 604-684-7334 (Greater Vancouver) or 1-888-684-7334 (elsewhere in BC)
Upper Skeena Counselling & Legal Assistance Society — Free legal help — Hazelton
Victoria Native Friendship Centre — Free legal clinic — Call 250-412-7794