Gladue Rights and Indigenous Sentencing

Section 718.2(e) of the Criminal Code tells judges how to choose a sentence. In plain language, it says that judges should consider all sanctions other than jail for every offender. Those sanctions must be reasonable and fit the harm done to victims and the community. The section then adds that judges must give particular attention to the circumstances of Aboriginal offenders. That is the exact word used in the statute. Courts and this page generally use "Indigenous" instead, and more specifically First Nations, Métis, and Inuit, to reflect current, respectful language.

Gladue rights apply to all Indigenous people in Canada. This includes status and non-status First Nations people, Métis people, and Inuit people. It does not matter whether a person lives on a reserve, in a Métis settlement, in the North, or in a city. A person does not lose these rights by living away from their home community. Courts must consider Indigenous circumstances for every Indigenous person they sentence, no matter where that person currently lives.

Two Supreme Court of Canada decisions explain how section 718.2(e) works in practice. R. v. Gladue, [1999] 1 S.C.R. 688, was the first Supreme Court of Canada case to interpret this part of the Criminal Code. It said courts must take a different approach when sentencing an Indigenous person, one that looks at background and systemic factors, not only the offence itself. R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, confirmed and strengthened that approach. It said these background factors matter for every Indigenous person, including people living in cities, and that courts cannot skip this analysis.

A Gladue report is a written report given to the court before sentencing. It is usually prepared by a trained report writer, sometimes working with an Indigenous courtworker or a Legal Aid program. The report describes the person's background, such as their family history, community, and any experiences connected to colonization, residential schools, or the child welfare system. It may also point to sentencing options that could support rehabilitation. Not every court location has the same access to Gladue report writers, so availability depends on the province or territory. A lawyer can ask the court what is available locally.

Gladue rights do not mean an Indigenous person automatically receives a shorter sentence or avoids jail. The Supreme Court has been clear that this is not the goal. Instead, the judge must carry out a different kind of analysis. The judge still has to weigh the harm done to any victim and to the community. Gladue principles work alongside the usual sentencing principles that apply to every offender, not instead of them. To learn more about how a sentence is decided, see our page on sentencing hearings.

Gladue principles were first developed for sentencing. Section 493.2 of the Criminal Code applies a related rule at the release stage. In release decisions, a peace officer, justice, or judge must give particular attention to the circumstances of Indigenous accused and accused from other vulnerable populations that are overrepresented in the criminal justice system and disadvantaged in obtaining release. This is related to the broader Gladue approach, though the sentencing rule in section 718.2(e) is not itself the bail provision. This can affect the release conditions proposed or plans for supervision in the community. For a general explanation of how release decisions work, see our page on bail hearings.

A person should tell their lawyer as early as possible that they are Indigenous. Indigenous circumstances can be relevant when release or sentencing is being decided, and early notice gives the lawyer time to gather the available information and supports. A person can tell their lawyer and the court that they are Indigenous. A formal Gladue report is not required in every case. The information needed, the way it is presented, and the availability of a report or other service vary by jurisdiction and by the case. A lawyer can explain what information a specific court may ask for. If someone does not have a lawyer, an Indigenous courtworker or Legal Aid can help explain the next steps.

Getting legal help early can make a real difference in how Gladue rights are raised and used in a case. Legal aid and Indigenous courtworkerA worker who helps Indigenous people involved in the justice system understand court processes and connect with services. services may be able to help with legal information, referrals, court processes, and local supports. Program availability and the services offered vary by province, territory, and community. To check whether legal aid may be available, see our page on qualifying for legal aid.