What is Gladue Rights?

Posted:  Aug 19, 2020

The Supreme Court of Canada declared that the high number of Indigenous people in institutions and prisons in Canada is a significant matter for courts to deliberate prior to sentencing. The word Gladue is taken from the name of a critical court case decided by the court in 1999. The term refers to a right that Aboriginal people have under section 718.2 (e) of the Criminal Code. Essentially, jail should be the court’s last choice when sentencing an Aboriginal man or woman. The main reason is that there are systemic or background circumstances that courts must consider when sentencing an Indigenous person.

What does it mean to have Gladue rights?

It means that it is the duty of judges to take these factors into consideration when deciding sentences. Gladue rights apply to all Aboriginal peoples across Canada. This method of analysis recognizes possible adverse past cultural impacts that may have faced an Aboriginal offender. Cultural impacts range from racism, attendance in an Indian residential school, and other colonization influences (referred to as Gladue factors). If these factors are present in his or her personal history, then work must be done to mitigate or moderate the culpability of offenders. Next, several practical alternatives must be looked at as opposed to a jail sentence.

What is the purpose of Gladue?

Essentially a restorative justice process, the use of Gladue rights may be more appropriate for an Aboriginal offender. The goal of this type of process is aimed at healing—both those affected by the criminal act and the offender. This is more in line with traditional Aboriginal justice. 

How does this affect an Aboriginal offender?

An Aboriginal offender in Canada may be status or non-status First Nations. Further, he or she may be Inuit or Metis, and live on or off reserve. If charged with a crime, there are specific cultural considerations that the court must take into account when assessing a case.

Thereby, a Gladue analysis is more likely to lead to a restorative justice solution exercised either in place of a jail sentence or combined with a reduced term. A remedy with no jail time results in a reduction to a disproportionate number of Aboriginals in Canadian prisons. If a jail sentence is given, the court must apply Gladue principles when deciding the length of the sentence.


What are the possible outcomes of the Gladue analysis?

In the end, this does not necessarily signify that all Aboriginal offenders qualify for lighter sentences than non-Aboriginal offenders. A Gladue rights solution is not suitable in all cases; the principles of sentencing pertain to all offenders equally.


Where do Gladue rights apply in Canadian courts?


Gladue rights can be applied at bail, sentencing, appeals, parole board, extradition, mental health reviews, professional disciplinary decisions, and long-term or dangerous offender hearings.


Hence, if an Aboriginal person has been charged with a crime, it’s important to keep these facts in mind prior to pleading guilty to an offence. He or she may be entitled to a healing option better suited to his or her individual needs and background influences. That’s why it’s important to consult a reputable and experienced lawyer for legal advice.


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