What does the Criminal Code and the Youth Criminal Justice Act say about the legal rights of Aboriginal people?
The Criminal Code and the Youth Criminal Justice Act both consider the unique, or special, legal status of Aboriginal people in Canada.
The Criminal Code considers the over-representation of Aboriginal people in the Canadian criminal justice system.
The courts have decided in previous court cases, such as Gladue, that when sentencing an Aboriginal offender judges should:
consider all available sentences other than jail time that are reasonable, and
pay particular attention to the life circumstances of Aboriginal offenders.
This means that if you self-identify as Aboriginal and you are convicted of a crime, intend to plead guilty to an offence, or if you are seeking bail, your lawyer or duty counsel will ask you questions about your personal history and background to be able to explain to the court what factors should be considered in your case. Factors that are considered include discrimination, physical abuse, separation from culture or family, or drug and alcohol abuse.
Gladue refers to a right that Aboriginal people have under the Criminal Code. Gladue applies to all Aboriginal people who self-identify as First Nations, Métis, or Inuit. In-depth information about Gladue is available in the BC Legal Services Society Gladue Primer.
In 1999, the Supreme Court ruled in R v. Gladue that courts must consider an Aboriginal offender’s background when he or she is being sentenced for a crime. Factors that are considered include discrimination, physical abuse, separation from culture or family, or drug and alcohol abuse.
Every criminal court in Canada is required to consider Gladue factors and principles when sentencing an Aboriginal person. Courts in Ontario must also consider a person’s Aboriginal background and the Gladue principles at bail hearings. If you wish to retain a lawyer with experience in Aboriginal criminal matters, you can speak to Ms. Emily Banks in our office.
A Gladue court handles the cases of Aboriginal people who have been charged with a criminal offence. The Gladue court proposes sentences that are more in line with Aboriginal traditions than jail, such as community justice programs.
Gladue reports and plans contain information on the unique circumstances of Aboriginal people accused of an offence or Aboriginal offenders. The court can consider these reports during sentencing. Sentencing in the Gladue court focuses on restorative justice and community justice programs, while also making sure that offenders receive fair sentences.
Legal workers from Aboriginal Legal Services of Toronto (ALST) and several other organizations provide special Gladue reports to the court, or provide assistance to Aboriginal people by creating release plans for use in bail hearings.
Gladue reports are currently available in the following locations:
Toronto – ALST
Guelph/Kitchener-Waterloo – ALST
Sarnia – ALST
London – N’Amerind Friendship Centre
Manitoulin Island – United Chiefs and Council of MnidooMnising
Thunder Bay – Thunder Bay Friendship Centre
Gladue-related services are offered at courts in Toronto, Hamilton, Brantford, the Waterloo-Wellington area, London, and Sarnia. In Toronto, London, and Sarnia there are dedicated Gladue courts.
There are also Aboriginal Courtwork programs in many courts across Canada.