What does the judge consider when sentencing an Indigenous person?

Last reviewed January 2025 by the Clicklaw editors

Anybody who self-identifies as First Nations, Métis, or Inuit has the right to have the judge to apply Gladue principles to sentencing in criminal court. 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.

Gladue principles and Gladue reports (all court levels)

The right to have a judge apply Gladue principles to sentencing is a result of the 1999 court decision in R. v. Gladue. The BC First Nations Justice Council, who 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, which is submitted before a sentencing and bail hearing. The factors are taken into consideration when sentencing is applied.

A Gladue report is not limited to Provincial Court or Supreme Court — it can be written for all court levels. Any Indigenous person has the right to ask to have a Gladue report prepared, but even if no report is written, a judge is still required to consider their background factors in sentencing.

All Indigenous people in court for any type of legal issue can contact the Native Courtworker and Counselling Association of BC. They have a worker based in every courthouse and can help you navigate the court system, as well as refer you to local support services.

All Indigenous people facing a criminal or child protection (child apprehension) issue can access free legal services from the Indigenous Justice Centres in British Columbia, with locations and outreach programs all across the province.

Indigenous Courts (Provincial Court level)

If your bail or sentencing hearing is being heard in BC Provincial Court, you may be able to have it transferred to Indigenous Court. You can request a transfer, or a judge or someone else may suggest it, but it is your choice to have the hearing moved.

To transfer the hearing, you have to reach out to Crown counsel, who will file a waiver with the current court. Two factors are required for the transfer process:

  1. You are pleading guilty.
  2. Crown counsel approves the transfer. (Note that different courts may apply different standards to the requests they approve.)

These hearings have different procedures, which might include beginning and ending with a prayer or ceremony and arranging the seating in a circle.

Indigenous 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 resources

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.