What are Gladue Rights?

Gladue rights are the rights of all Indigenous people involved in the criminal justice system.

In court, the judge has a duty to consider the unique circumstances and experiences of Indigenous peoples. These include the many impacts of colonialism that Indigenous individuals and communities have faced since the arrival of settlers in what is now Canada. Some of these unique circumstances and experiences include but are not limited to:

• Inter-generational impacts of colonialism and displacement from traditional territory
• Loss of autonomy via the Indian Act and other attacks on self-determination
• Racism and systemic discrimination against Indigenous peoples
• Legacy of sex discrimination in Indian Act and related policies
• Physical/sexual/institutional abuse
• Loss of parenting skills and familial composition
• Normalization of violence and neglect
• Substance abuse/addiction, mental health issues
• Lack of opportunity or isolation of communities
• High rates of unemployment and poverty
• Low levels of educational attainment
• Loneliness, abandonment and dislocation from culture, community and family
• Forced attendance at Indian Residential School and the so-called “Sixties Scoop” of Indigenous children being removed from their families and adopted into white Canadian families, an ongoing phenomenon
• The over-representation of Indigenous peoples in the child welfare and criminal justice systems
• Fetal Alcohol Spectrum Disorder (FASD) and other related ailments

Judges must keep this information in mind and consider rehabilitation and community-based options when making a decision in a bail or sentencing hearing.

Where do Gladue Rights come from?

Gladue rights come from the Criminal Code of Canada and the Supreme Court of Canada, specifically the R. v. Gladue decision in 1999.

The Canadian Criminal Code under s. 718.2(e) states “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

In the R. v. Gladue (1999) decision, the Supreme Court of Canada determined that the disproportionate number of Indigenous persons in jails in Canada resulted directly from:

(a) Systematic discrimination in the criminal justice system utilizing an institutional approach more likely to refuse bail and impose longer prison sentences for Indigenous offenders.

(b) Systemic contextual factors including (but not limited to) poverty, lower educational attainment, substance abuse and community breakdown as a result of colonization.

Due to the R. v. Gladue decision, judges now have a duty to review information coming from a Gladue Report (or made through Gladue submissions) that outlines the unique systemic or background factors which may have played a part in bringing the particular individual before the court.

When do Gladue Rights apply?

Gladue rights apply to all Indigenous people. This includes:

• First Nations, both status Indians and non-status Indians
• Inuit people
• Métis people

Your Gladue rights apply if:

• You live on a reserve
• You live off a reserve
• You live in an Indigenous community
• You live in a non-Indigenous community

Why are Gladue Rights important?

Understanding Gladue rights plays an important role in enabling judges to fulfill their duty to take into account the factors that have negatively impacted Indigenous people, along with helping all parties pursue a path of community-based healing.

This assists the court to understand the circumstances of an individual and determine a “fit sentence” for every Indigenous person facing a bail or sentencing hearing in a criminal court.