The overrepresentation of Indigenous Peoples in Canadian prisons has been a critical issue for decades. In the 1999 landmark Supreme Court of Canada (“SCC”) decision, R v Gladue (“Gladue”), the court recognized this issue as a crisis and a pressing social problem. The SCC’s interpretation of section 718.2(e) of the Criminal Code in Gladue gave rise to what are now known as Gladue principles or Gladue rights, which require judges to consider the impacts of colonization for all Indigenous people who are accused or convicted of a crime.
Despite accounting for about 5% of the total Canadian population, Indigenous people now make up 31% of adult admissions to provincial/territorial institutions and 29% of people in federal custody. For Indigenous youth, women, and others with marginalized genders or sexualities, the rates of incarceration are even more dire. Indigenous youth make up 47% of youth in custody, while accounting for 9% of the general youth population in Canada. The National Inquiry into the Missing and Murdered Indigenous Women and Girls final report has made clear the disproportionate and unique impacts that criminalization and incarceration have on Indigenous women, girls, and 2SLGBTQQIA+ people. For instance, Indigenous women account for 42% of correctional admissions—a rate approximately 12 times higher than non-Indigenous women. This crisis of Indigenous overrepresentation in Canadian prisons is a result of colonial policies and intersecting forms of systemic oppression against Indigenous Peoples in this country.
With these disturbing statistics, we must also ensure that Indigenous Peoples are not confined to being framed only through a lens of victimhood. The strength, resilience, and agency of Indigenous Peoples, laws, and cultures should never be overlooked.
Given these statistics and that many JHS Pacific services support people who have been incarcerated or otherwise involved in the justice system, it should come as no surprise that 31% of JHS Pacific service users self-identify as Indigenous. It is likely that many service users have experiences with Gladue reports, have encountered barriers to asserting their Gladue rights, or may not be aware that they have these rights as an Indigenous person.
So, what do service providers who work with Indigenous individuals involved in the colonial justice system need to know about Gladue rights? Where can justice service providers, such as JHS Pacific staff and volunteers, refer Indigenous clients who may have questions about their Gladue rights? These questions and more are explored below.
What are Gladue rights?
Essentially, this provision requires the courts to consider incarceration as a last resort. The Gladue case dealt with interpreting the scope of consideration for the circumstances of Indigenous offenders. The SCC made clear that section 718.2(e) applies to all Indigenous people before the court “wherever they reside, whether on- or off-reserve, in a large city or a rural area” (para 91). The court determined that the provision should be applied broadly and alternatives to incarceration must be considered for all cases involving Indigenous accused or offenders because,
Other high-profile cases have continued to help shape how Gladue rights work today. For example, in R v Ipeelee (“Ipeelee”), the SCC clarified that Gladue rights must be considered regardless of the severity of the offence. In other words, Gladue principles must be considered in bail, sentencing, appeals, parole, long-term offender, and dangerous offender hearings.
What are common Gladue factors?
While not exhaustive, the BC First Nations Justice Council (“BCFNJC”) lists the following as common Gladue factors:
- Impacts of colonialism
- Feelings of loneliness, abandonment, dislocation from culture, community, and family
- Loss of access to ceremonies and healing practices
- Racism and systemic discrimination
- Lack of opportunity and isolation of community
- Housing shortages and homelessness
- Residential Schools
- Foster care, adoption, 60s scoop
- Victimization/offenders of violence
- Missing and murdered Indigenous women and girls
- High rates of incarceration
- Lower education levels
- Lower-level employment, unemployment, and poverty
- Fetal Alcohol Spectrum Disorder (FASD)
- Problematic substance use
- Mental health related issues
What is a Gladue report? Who can get one?
Gladue reports are powerful documents that assist judges in considering how the impacts of colonialism have played a part in the reasons Indigenous people appear in court, as well as provide guidance on the types of sentencing procedures and sanctions that may be appropriate in the circumstances.
Each Gladue report contains an individualized healing plan designed to address the specific needs of each client. By recognizing the impacts of intergenerational trauma tied to colonialism, Gladue reports seek to help Indigenous people heal in ways that are meaningful to them and their families. Gladue reports also support First Nations in using their laws and legal traditions in the administration of their own justice processes for their nation members.
All self-identified First Nations, Inuit, and Métis people who are accused or convicted of a crime are eligible to get a Gladue report, regardless of their Indian Act status, place of residence, or severity of the crime. However, as stated in Ipeelee, there are ways other than a Gladue report for the court to get access to Gladue information.
How can someone access their Gladue rights?
Recently, in April 2021, the BCFNJC took over Gladue services from Legal Aid BC. Gladue information, and how it is collected, reported, and disseminated, is now in the hands of an Indigenous-led organization. The transition of Gladue Services to the BCFNJC removes some barriers related to requesting a Gladue report. For example, any First Nations, Métis, or Inuit person can now request a Gladue report, whether they have retained a private lawyer or are a client of Legal Aid BC.
Where possible, the best way for someone to request a Gladue report is through their defense lawyer or, if they are self-represented, in court through Crown counsel. Otherwise, someone who wants to access Gladue services can be directed to the Gladue Services Department at the BCFNJC, where they can request a Gladue report writer online or find the contact information for the Gladue Services Coordinator to ask questions.
Why should justice service providers be familiar with Gladue principles?
As JHS Pacific staff and volunteers already know, it is vitally important for service providers to be person-centred. As one of JHS Pacific’s core values, being person-centred means that,
“We adapt our approach to the individual and use empathy and compassion in all of our interactions.”
When serving Indigenous clients, it is essential to understand the individual’s circumstances within the context of colonialism and systemic discrimination to provide meaningful person-centred support.
The Truth and Reconciliation Commission’s (“TRC”) Calls to Action include a call for a commitment from all levels of government to end the overincarceration of Indigenous Peoples. The TRC states that reconciliation “is a multi-generational journey that involves all Canadians.” As such, while not a government actor, non-Indigenous service providers can contribute to the work of ending the overincarceration of Indigenous peoples by helping enhance awareness and access to Gladue rights. For service providers who regularly provide referrals for Indigenous people seeking legal advice or representation on criminal issues, knowing that Gladue rights exist and where to refer people can enhance an individual’s ability to assert their Gladue rights.
Are Gladue rights resolving the overrepresentation crisis?
Without adequate resourcing of restorative alternatives to incarceration or adequate access and funding of Gladue reports, Gladue’s reach cannot be fully realized.
Further, Gladue has mainly been used in sentencing so far, but the BCFNJC sees Gladue rights as applicable throughout the criminal justice process. The BCFNJC explains that,
“Gladue principles are about recognizing that the social determinants of crime, aka Gladue factors, have had a disproportionate impact on Indigenous people in Canada. They apply across the entire criminal justice system.”
While an important legal tool, Gladue is not without critiques and should not be seen as the be-all and end-all solution to the overrepresentation of Indigenous Peoples in Canadian prisons. The disproportionate rates of Indigenous people involved in the criminal justice system is a complex problem caused by the far-reaching impacts of colonization; ending this crisis requires a host of social and legislative changes at all levels of Canadian society. Gladue rights are one piece of this process and the transfer of these services to the BCFNJC will expand their influence.
Where can I learn more?
This blog post has provided an overview of Gladue principles and their relevance to justice service providers. There is much more to know!
Here is a list of sources where you can go to do further reading:
- Gladue Services, BC First Nations Justice Council
- Gladue and You, Legal Aid BC
- Gladue Principles, BC Aboriginal Legal Aid
- Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System, Research and Statistics Division Department of Justice
About the BC First Nations Justice Council
The BCFNJC represents First Nations in BC on justice-related issues to bring about transformative change to the legal system. Through the BC First Nations Justice Strategy, the council provides an ambitious roadmap to both reform the current Canadian justice system and revitalise Indigenous legal traditions and systems of justice.
About Our Partnership
One component of the ongoing partnership between JHS Pacific and BCFNJC has included hiring a summer law student to work on a variety of projects that bridge the work of the two organizations—including writing this blog post. This position is generously funded by the Law Foundation of British Columbia’s Public Interest Work Placement program. Kaymi Yoon-Maxwell (they/them/she/her) is a Korean/Scottish settler and University of Victoria Faculty of Law student in the joint degree program in Canadian Common Law and Indigenous Legal Orders (JD/JID).