May 21, 2010

Aboriginal Legal Services: Do you know about Gladue rights?

Clients who self-identify as Aboriginal have rights under section 718.2 (e) of the Criminal Code, often referred to as Gladue rights. These rights apply to all Aboriginal people: status or non-status Indians, First Nations, Métis, or Inuit, as well as Aboriginal people living both on and off reserve.

The term Gladue comes from a case that came before the Supreme Court in 1999; an Aboriginal woman named Jamie Gladue was the accused. As a result of this case, the Supreme Court acknowledged that Aboriginal people are overrepresented in Canada’s penal system, and that Aboriginal people face racism in Canada and in the justice system. Now, the word Gladue refers to the special consideration that judges must give an Aboriginal person when sentencing or setting bail for him or her. When a lawyer informs the court of his or her client’s Gladue rights, the judge must keep in mind that Aboriginal offenders face special circumstances. When the judge is sentencing an Aboriginal person, he or she must consider all options other than jail.

However, Gladue doesn’t automatically mean that Aboriginal clients are exempt from jail time. Rather, sentences could involve full or partial community sentences, depending on the nature of the offence. Community sentences typically involve participation in a program that will help your client to address the issues that got him or her into trouble with the law in the first place (e.g., drug or alcohol rehabilitation, anger management programs, counselling, etc.) If the judge has no choice but to sentence your client to jail, he or she must still apply Gladue when deciding how long the jail sentence will be.

In order to apply Gladue, the judge needs to understand your client’s circumstances, and to know what kinds of community sentences are available and how they will help your client. To help the judge, your client’s lawyer needs to provide the court with a Gladue report. A Gladue report gives the judge, Crown counsel, and your client’s lawyer as much information as possible about your client, including his or her background, education level, family history, and any history with substance abuse. It’s important to note that a Gladue report is not the same as a pre-sentence report, which is done by a probation officer. Our fact sheet, Are You Aboriginal?, provides some questions that can help your client and his or her lawyer get started on preparing a Gladue report.

It’s your client’s choice whether he or she exercises his or her Gladue rights. Keep in mind also that clients who self-identify as Aboriginal can apply to have their sentencing matters heard in the First Nations Court in New Westminster. Are You Aboriginal? has more information on First Nations Court.

If you’re interested in participating in Gladue competency training, please e¬mail Pamela Shields, Aboriginal Services Program manager, Legal Services Society. Lawyers who are familiar with Gladue and are interested in being added to a Gladue referral roster are also encouraged to contact Pamela at the above e-mail address.