2. Understand how Gladue works at sentencing

In the 1999 Gladue decision, the Supreme Court of Canada ruled that jail should be a last resort for Indigenous people. The court must consider all alternatives to jail before a jail sentence is given. Alternative options include a fine or a that can be served in the community, like .

The court must also consider other types of sentences and processes that are culturally-appropriate. This includes having a  if available.

The court did not say that Indigenous people can’t be sentenced to jail or that they automatically get a lesser sentence. Instead, the court said 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.

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

It’s important to tell your lawyer or if you self-identify as Indigenous. 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.

Sharing information about your personal background might make you feel uncomfortable. But sharing this information can help the court to better understand your circumstances and the challenges you have faced. You can tell your lawyer what you’re comfortable sharing.

If you’re facing less serious charges, ask your lawyer or duty counsel about Indigenous diversion. Indigenous is available in some places as a voluntary way to resolve minor criminal charges, often without going to or pleading guilty. Diversion involves taking responsibility for the crime you have been charged with and participating in the community.

And ask your lawyer or duty counsel if there is an Indigenous court worker at your courthouse. An Indigenous court worker can help you make a plan of care that your lawyer or duty counsel can use at your sentencing .

The plan of care might include suggestions for community resources that can help you to address issues that could bring you back to court. For example, the plan might suggest Indigenous supports for mental health, trauma, addictions, or homelessness. It might also include suggestions for participation in cultural activities.

If you’re facing more serious charges, speak to your lawyer about having a sentencing circle or ordering a Gladue Report.

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