What does the judge consider when sentencing an Indigenous person?

Last reviewed October 2024 by the Clicklaw editors

Anybody who thinks of themselves (self-identifies) as First Nations, Métis, or Inuit has the right to get a judge to apply Gladue principles when they’re in criminal court. This right is a result of the 1999 court decision in R. v. Gladue.

Gladue principles

Applying Gladue principles means that when sentencing an Indigenous person, a judge must consider the systemic factors and particular circumstances that played a role in bringing the individual before the court. The BC First Nations Justice Council, the organization that has managed the BC Gladue reports program since 2021, has a list of common Gladue factors on their website. Examples include the experience of racism, foster care, poverty, violence, or feeling dislocated from one’s community.

These factors are explained to the court in what has become known as a Gladue report, submitted before a sentencing and bail hearing, and are taken into consideration when sentencing is applied.

Gladue reports may, in some cases, lead to a restorative justice remedy. This is a type of sentencing that follows an Indigenous view of justice, where the focus is on responsibility and healing instead of punishment. An example is circle sentencing, when the sentencing judge and certain community members meet to discuss an appropriate sentence for the accused.

All Indigenous people facing a criminal or child protection issue can access free legal and outreach services from the Indigenous Justice Centres in British Columbia, located in Vancouver, Victoria, Nanaimo, Surrey, Chilliwack, Merritt, Kelowna, Prince George, and Prince Rupert, and through the Virtual Indigenous Justice Centre.

Indigenous Courts

You may be able to have your bail or sentencing hearing in a BC Indigenous Court, sometimes called Gladue courts. You can request a transfer of your sentencing hearing, or a judge or someone else may suggest it (but it is your choice to have the hearing moved). There are different procedures such as beginning and ending with a prayer or ceremony and arranging the seating in a circle.

These courts consider traditional means of restorative justice focusing on rehabilitation, accountability, and healing. They may still sentence people to jail, but they’ll consider Gladue circumstances in their decision and work with your community to find an appropriate and balanced sentence.

The locations of Indigenous sentencing courts are listed on the Provincial Court website.

Helpful information

Helpful services

  • Gladue Services (BC First Nations Justice Council): They can help you get a Gladue report. To access the service, fill out the online information form or visit the Indigenous Justice Centre in your community.
  • First Nations/Indigenous Courts duty counsel (Legal Aid BC): This service can help you apply to Indigenous Court, and help you find a lawyer and someone to write your Gladue report.
  • Native Courtworkers (Native Courtworker and Counselling Association of British Columbia): This service helps Indigenous people involved in the criminal justice system to get fair and culturally sensitive treatment.
  • Indigenous Community Legal Clinic (UBC’s Peter A. Allard School of Law): This service provides legal services to the Indigenous community in the Downtown Eastside of Vancouver and throughout the Lower Mainland.
  • Find more services.