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 you, your family, and community faced and resisted as Aboriginal people, such as racism, loss of language, removal from land, Indian residential schools, and foster care. 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 may 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 will be in jail and your probation.
Canadian courts have found that Gladue rights apply at:
- parole board,
- mental health review board,
- professional disciplinary decisions, and
- long term or dangerous offender hearings.
If you've been charged with a crime
You have the right to get a lawyer. Call Legal Aid BC immediately to find out if you qualify for a free lawyer.
604-408-2172 (Greater Vancouver)
1-866-577-2525 (elsewhere in BC)
Legal Aid can also give you free legal information. If you don't qualify for a lawyer, you may be able to get free legal advice. The person you speak to on the phone will let you know what your options are.
Who has Gladue rights?
Gladue rights apply to all Aboriginal peoples:
- First Nations, including status Indians and non-status Indians;
- Inuit; and
You have Gladue rights if you live:
- on reserve,
- off reserve,
- in an Aboriginal community, or
- in a non-Aboriginal community.
You also have Gladue rights if:
- you are 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, or
- you grew up away from your 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. The judge will also need to know about 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 may 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; and
- perspectives from your family and community/nation about healing or ways to repair the harm done.
The judge may order the following information to guide their decision making:
- 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, and
- 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 how colonization affected you, your family and community, and how it continues to affect you today. Colonization affected almost all Aboriginal people. These impacts are called Gladue factors. Below are 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 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 may want a Gladue report to give the judge or decision maker(s) 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 may 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 that 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
BC211 — Free confidential referrals to help and information — Call 211
BC Association of Friendship Centres — Find a friendship centre in your area
PovNet — Information about poverty issues and links to organizations that can help
Access Pro Bono Law Clinics — Free legal help
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) — Free legal help — Victoria
First Nations Court duty counsel — Give free legal advice about having your matter transferred to First Nations Court and the charges against you — Call 604-601-6074(Greater Vancouver) or 1-877-601-6066 (elsewhere in BC)
Bella Coola Legal Advocacy Program — Free legal help — Bella Coola
Indigenous Community Legal Clinic — Free legal help on various legal matters — 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