A right, not a favour
Gladue rights, explained
If you are Indigenous and a criminal court is deciding your sentence, the judge owes you specific duties. Most people have never had them explained. This page explains them, and clears up the myths.
Where Gladue comes from
Section 718.2(e) of the Criminal Code tells judges that all reasonable options other than jail should be considered for everyone, with particular attention to the circumstances of Indigenous people.
In 1999, the Supreme Court of Canada explained what that section demands, in a case called R v Gladue. Judges must look at the unique systemic and background factors that bring Indigenous people before the courts. They must also look at what kinds of sentences actually fit the person and their circumstances.
In 2012, the Court went further in R v Ipeelee. Applying Gladue is mandatory. A judge cannot skip it, it applies no matter how serious the charge, and a sentence that ignores it is not a fit sentence.
What it means in practice
When a criminal court sentences you, the judge must pay attention to your circumstances as an Indigenous person. The judge must also consider every reasonable option other than jail.
Courts have carried Gladue principles beyond sentencing into other decisions about a person's freedom, like bail.
These rights belong to all First Nations, Métis, and Inuit people who self-identify. Status or no status. On reserve or off. City or small community. It makes no difference.
Common misconceptions
You can only use it once
Some people think Gladue is a card you can play one time, so they want to save it for a bigger charge. That is not how it works.
Gladue is a right, and it applies every single time a criminal court sentences you. There is nothing to save and nothing to use up. The judge has to apply it in every case, whether it's your first or your tenth.
It's an automatic lighter sentence
Gladue makes the judge look at your circumstances and at all reasonable options other than jail. It does not guarantee a shorter sentence, and it is not a discount. It is about reaching a sentence that actually fits you.
It's only for people with status, or people from reserve
No. Self-identification is what matters. First Nations people with or without status, Métis people, and Inuit all have Gladue rights, wherever they live.
Saying no to First Nations Court means losing Gladue
No. Gladue follows you into every criminal courtroom in BC. Choosing regular court changes nothing about it.
You need a Gladue report for the rights to apply
No. A report is a tool that helps the judge apply your rights well. With or without one, section 718.2(e) still protects you. Asking for a report is your right, but a report is never required.
Gladue covers every kind of court case
This one runs the other way. Gladue started in criminal sentencing law, and courts have extended it to other decisions about a person's freedom, like bail and parole. It is not a blanket rule for every kind of case. A lawyer can tell you where it applies to your situation.
Gladue reports
A Gladue report is a detailed report for the court about you, your life, your community, and realistic options other than jail. It gives the judge what they need to apply your rights properly.
Since April 1, 2021, the BC First Nations Justice Council has run the Gladue report program in BC. The usual way to ask for one is through your lawyer. If you do not have a lawyer, the BC Prosecution Service can help submit a request for you.
Reports are written for sentencing, for reviews in First Nations Court, and for some other hearings. They are not written for bail hearings, even though Gladue principles still apply at bail. A report can take up to 8 weeks, so ask early.
Getting help with Gladue
Your lawyer or duty counsel can raise Gladue for you and request a report. First Nations Court duty counsel: 604-601-6074 in Greater Vancouver, 1-877-601-6066 elsewhere in BC.
BCFNJC Gladue services: 1-877-602-4858.
There is a plain-language rights page at Aboriginal Legal Aid in BC too.