Is sentencing different if I’m Indigenous?

At your sentencing , your lawyer and the Crown will each suggest a to the judge that they think is appropriate. Sometimes your lawyer and the Crown will suggest the same sentence to the judge, called a “joint position“. But the judge doesn’t have to give you a suggested sentence. The judge decides your sentence based on what they think is appropriate and reasonable in your situation.

If you’re an Indigenous person, at your sentencing hearing the court must also take into account:

  • your Indigenous background, and
  • the impact and history of discrimination against Indigenous people by Canada and the criminal justice system, also called systemic discrimination.

If you identify as Indigenous, it’s important that you tell your lawyer or . With your permission, your lawyer will tell the court about your Indigenous identity. Your background information is sometimes called Gladue factors. Your lawyer must also make arguments, called Gladue submissions, based on how the Gladue principles apply to your case.

The Criminal Code and Gladue principles help the judge decide how to sentence you.

What is Gladue?

In the Gladue case, the Supreme Court of Canada recognized that because of the history of discrimination by Canada and the criminal justice system, Indigenous people are more likely to be sentenced to jail. As a result, there are higher numbers of Indigenous peoples in jails.

To address this discrimination, courts must look at an Indigenous accused’s background and the impact of discrimination on them when deciding on a sentence.

Courts must take “judicial notice” of the history of discrimination, including residential schools and involvement with child protection agencies, and how this has resulted in:

  • lower employment
  • poverty
  • substance abuse
  • involvement in the criminal justice system

Judicial notice means you don’t have to prove these things because they are accepted as fact.

At sentencing hearings, the court must look at all alternatives to jail before deciding to give a jail sentence. Alternative options include a fine or a sentence that can be served in the community, like .

Jail is a last resort. And when a jail sentence is given, the court must apply Gladue principles when deciding the length of the sentence.

The court must also consider other types of sentences and processes that are culturally-appropriate. This includes having a or ordering a Gladue Report, if these options are available.

Gladue doesn’t mean that Indigenous people can’t be sentenced to jail or that they automatically get a lesser sentence. Gladue means that an Indigenous person’s background and the impact of discrimination on them must be considered when deciding on an appropriate sentence. This includes the need to reduce the number of Indigenous people in jail.

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