Gladue and Aboriginal Sentencing

If you have been charged with a crime and are an Aboriginal person, there are special cultural considerations that the court must take into account in assessing your case.  This applies to all Aboriginal peoples of Canada, including status and non-status Indian, Inuit, and Métis and whether living on or off reserve.

What this means is that, as an Aboriginal offender, a restorative justice process may be more appropriate for you.  Such processes focus on healing those affected by the criminal act, including the offender, and so are more in line with traditional Aboriginal justice.  Also, a restorative justice approach will often allow for a solution with no jail time, which helps reduce the drastic over-representation of Aboriginals in Canadian jails.

Section 718.2(e) of the Criminal Code, as well as the Supreme Court of Canada in R. v. Gladue, [1999] 1 S.C.R. 688 have stated that Judges should account for these considerations when making sentencing decisions.  Gladue asks judges to apply a method of analysis that recognizes the adverse background cultural impact factors that many Aboriginals face.  In a Gladue analysis these factors, if present in their personal history, work to mitigate or reduce the culpability of offenders.  Judges are then asked to consider all reasonable alternatives to jail in light of this.  Such an analysis, then, is more likely to lead to a restorative justice remedy being used either in place of a jail sentence or combined with a reduced term.

It is important to keep these considerations in mind before pleading guilty to an offence, even if bail has been denied.  If in doubt, consult your lawyer or duty counsel for legal advice.  You could be entitled to a remedy that is better suited to your needs.

This does not, however, mean that all Aboriginal offenders automatically qualify for lighter sentences than non-Aboriginal offenders.  The principles of sentencing apply to all offenders equally, and so in many situations such a remedy will not be appropriate to the circumstances of the case.