In the Canadian criminal justice system, judges must take into consideration the individual circumstances of the person before them in court to determine a fit and fair sentence.
If you identify as Indigenous and are charged with a crime, the judge must apply Gladue principles when you're in a criminal court. Gladue principles are a way for the judge to consider the unique circumstances (experiences) of Indigenous peoples.
These unique circumstances include the challenges of colonization you, your family, and community faced and resisted as Indigenous people, and continue to affect you today. These challenges include racism, loss of language, removal from land, Indian residential schools, and foster care. These challenges are called Gladue factors.
In 1999 in a case called Gladue, the Supreme Court of Canada said that colonialism creates challenges for many Indigenous people, and they are more likely to be sent to jail. The criminal justice system failed Indigenous people. Gladue principles try to address these failures and make sure judges don’t repeat the same mistakes that add to discrimination.
Judges must consider Gladue factors when they make decisions about you. Judges must consider options other than jail to help you address the challenges you face. For example, you might participate in a restorative justice program to help you work with those your crime affected and repair the harm done.
Gladue principles also require judges to make decisions that are appropriate to your particular Indigenous heritage or connection. This means judges must consider:
- your community’s perspective on the situation, their needs, and their suggested alternatives to jail. Your community can be the Indigenous community where you live or come from, but it’s also your support network or the people you interact with. If you live outside an Indigenous community and aren’t connected to one, you still have a community.
- the laws, practices, customs, and legal traditions of your Nation or the Nation where the alleged offence took place.
- ways of making decisions that are sensitive and appropriate to your culture.
For example, your community could provide the court with a suggestion they deem to be meaningful to the community and that they believe would help you. They can also help to support you with the suggested alternative to jail.
The judge might still decide to send you to jail. If you are sent to jail, the judge must respect Gladue principles to decide how long you'll be in jail and your probation.
Canadian courts have found that Gladue principles apply at:
- parole board
- hearings to determine parole ineligibility in sentencing
- mental health review boards
- professional disciplinary decisions
- long-term or dangerous offender hearings
Gladue principles can also apply in other situations, such as negotiations and sending someone to an alternative measures program. In this program, the person accepts responsibility for their actions and takes steps to repair the damage without going to court.
If you're charged with a crime
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Who do Gladue principles apply to?
Gladue principles apply to all Indigenous peoples:
- First Nations, including status Indians and non-status Indians
Gladue principles apply if you live:
- on reserve
- off reserve
- in an Indigenous community
- in a non-Indigenous community
Gladue principles also apply if:
- you're a youth, or two-spirited or LGBTQ+ person
- a non-Indigenous family adopted you
- you grew up in a foster home
- you didn't know you were Indigenous until recently
- you grew up away from your Indigneous family, culture, and community
How do Gladue principles apply to my criminal case?
It's your right to have Gladue applied to your case. Tell your lawyer or the court as soon as possible that you're Indigenous. Your lawyer should make sure that Gladue principles are considered. Even if you don't have a lawyer, the judge must still apply Gladue principles.
The judge will want to know:
- about you, your family, and your community/Nation
- what kinds of community or healing options, where appropriate, are available to you
- options to support you in overcoming any challenges you're facing
- any laws, customs, or traditions from your Nation that would apply to your situation
You, an advocate, or a lawyer can give this information to the court in a Gladue submission or a Gladue report. The judge must respect Gladue even if you can't give a Gladue submission or a Gladue report.
Before deciding on your sentence, the judge needs to think about:
- the background (the story) of you, your family, your community, and your culture
- what Gladue factors might have played a part in you getting in trouble with the law (for example, colonization, racism, foster care, abuse, poverty, Indian Residential School and Indian Day School)
- your current needs and strengths, and the best options to address the challenges you face
- where you can get help for the challenges that brought you to court
- perspectives from your family and community/Nation about healing, where appropriate, and ways to repair and address the harm done
You can tell the judge about this in a Gladue submission or a Gladue report (see below).
Before deciding on your bail conditions, the judge needs to think about:
- the background surrounding your current situation and circumstances (such as your work situation, living circumstances, family connections, prior convictions and breaches of conditions, etc.)
- how Indigenous law, customs, culture, beliefs, and traditions can support a successful bail release plan
- whether the community or other resources can and should provide support to ensure a successful release
You can tell the judge about this in a Gladue submission or a Gladue report (see below).
The judge might order or receive the following information to guide their decision:
- Gladue submissions (oral or written statements about you as an Indigenous 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 personal circumstances 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 Indigenous person. A Gladue submission can be presented orally (said out loud) by you, your lawyer, a Native courtworker, or an advocate; or it can be 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.
Information that might be in a Gladue submission may include responses to the following questions:
- Are you, your family, or community members Indian Residential School or Day 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?
A Gladue submission tells the court your community’s perspective, their needs, and the options other than jail they can provide. It can include information on the Indigenous laws that apply to your situation and the relevant customs, traditions, and practices. It can also provide information on how a judge can make sure their decision is culturally appropriate for you.
You, your advocate, or your lawyer can make a Gladue submission at hearings such as bail, sentencing, appeals, parole board, extradition, mental health review board, professional disciplinary decisions, and long-term or dangerous offender.
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. It can also include relevant documentation to support the judge in making an appropriate decision. The report describes your unique experiences as an Indigenous person. It includes:
- the history and present day story about you, your family, and your community/Nation
- your community and Nation's perspective on the situation, including relevant Indigenous laws and legal processes to consider
- community-based options for your path forward grounded in healing or in supporting you in addressing challenges you might be facing
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. This information will help the judge understand your circumstances so they can make a fit and fair decision.
The Gladue report is given to the judge, Crown lawyer, and your lawyer before the sentencing or bail hearing.
A report is about 10 to 20 pages long and takes 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 to allow a Gladue writer to prepare the report. You or a Gladue writer can prepare the report. If you can't wait eight weeks, you or your lawyer can present a Gladue submission out loud without a Gladue 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.
Effective April 1, 2021, the Gladue reports program in BC is administered and managed by the BC First Nations Justice Council (BCFNJC). Contact BCFNJC to request a Gladue report.
To find out about Gladue reports during the COVID-19 crisis, see Your legal questions answered.
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.
What is First Nations/Indigenous Court?
If you accept responsibility for a crime and plead guilty, you might be able to go to one of BC’s First Nations/Indigenous Courts for sentencing.
For more information, see First Nations/Indigenous Courts.
Watch Skye's video to learn about how a Gladue report helped her at her sentencing hearing.
Find out more information about this video.
Page last updated: Monday, June 28, 2021 11:08 am hrs
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