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Aboriginal legal rights — Gladue
If you self-identify as Aboriginal (meaning if you think of yourself as Aboriginal), you have special legal rights under the Criminal Code, often called Gladue rights. These rights require judges to take a restorative justice approach. Gladue rights apply to all Aboriginal people, whether you’re status or non-status Indian, First Nations, Métis, or Inuit, and whether you live on or off reserve.
Gladue rights are a way that judges can try to make sure that you are treated fairly and in a way that supports healing for both you and your community. The judge must consider all options other than jail when sentencing you or setting bail, and address the issues that got you into trouble with the law in the first place. For example, you may get a community sentence that involves participating in counselling or a drug program. If you have to go to jail, the judge must still apply Gladue when deciding how long your jail sentence will be.
If you are charged with a criminal offence, always contact legal aid immediately to find out if you qualify for a free lawyer.
Gladue reports
When you use your Gladue rights, judges needs to understand your personal history and to know what kinds of community sentences are available for you. The best way to do this is to prepare what is called a Gladue report. A Gladue report gives the judge, the Crown counsel (the government lawyer), and your lawyer as much information as possible about you. A trained Gladue report writer should prepare your report. See the LSS fact sheet Are You Aboriginal? and the LSS booklet Gladue Primer, for more information.
LSS provides workshops to lawyers and community members to help develop awareness of Gladue rights and provide training about how to write Gladue reports. As well, LSS is now funding the writing of Gladue reports for as part of a pilot project.
For future dates and locations, contact the Manager, Aboriginal Services.
First Nations Court
In addition to using your Gladue rights, you may be able to have your bail or sentencing hearing and any related family matters transferred to the First Nations Court of BC in New Westminster.
Below are some more links to resources that can help you learn about Gladue rights.
LSS online and print resources
Are You Aboriginal? (LSS fact sheet)
Gladue Primer (LSS booklet)
Aboriginal legal community workers
Related resources
Are You Aboriginal? (publication of CLEONet — Community Legal Education Ontario)
Department of Justice Canada, Restorative Justice programs.
Native Courtworker and Counselling Association of BC. This association provides culturally appropriate services to Aboriginal people involved in the criminal justice system.
Related case law
The following resources are examples of case law involving the principles of Gladue, including the original appeal before the Supreme Court of Canada that established Gladue rights. These decisions are documented on the website of the Canadian Legal Information Institute — CanLII.
What if I don't want to talk about my personal information in court?
Some of your personal information in your Gladue report may be private or sensitive for you and you may not like to talk about it. If you don’t want this information discussed out loud in court, you can ask your lawyer give this information (in writing) to the judge and the government lawyer.
Do I have to have a Gladue report to use my Gladue rights?
Although you don't have to have a Gladue report, it is highly recommended. However, if you don't have time to prepare one, you or your lawyer can tell the judge in court that you're Aboriginal, and provide the details then about your background and available community sentences.