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Common Questions

What does the judge consider in sentencing an Aboriginal person?

Last reviewed November 2020 by the Clicklaw Editors

NOTE: Preparations of Gladue reports is still happening during COVID-19. Look at Legal Aid BC's Q&A for Aboriginal legal questions for more information. 

Anybody who thinks of themselves (self-identifies) as Aboriginal has what are called Gladue rights. These rights mean that when making sentencing decisions about an Aboriginal person, a judge must consider the adverse or harmful social conditions that many Aboriginal people face. This consideration may, in some cases, lead to a restorative justice remedy (a type of sentencing that tries to follow an Aboriginal view of justice: the focus is on responsibility and healing instead of punishment). An example of this is circle sentencing, when the sentencing judge and appropriate community members meet outside the courtroom to discuss an appropriate sentence for the accused.

BC's First Nations Courts are Gladue courts. 

Good starting points include:

  • Your Rights: Gladue Rights, from the Legal Aid BC, gives an overview of Gladue rights and links to more fact sheets on preparing a Gladue report and what these rights mean for Aboriginal people who have a bail hearing or are being sentenced for a crime.
  • Aboriginal People and Sentencing, from Justice Education Society of BC, explains sentencing for Aboriginal people and how it considers their special cultural circumstances. It also provides information on how restorative justice may be applied by the law.

Need more help?

  • First Nations/Indigenous Courts Duty Counsel, from Legal Aid BC, can help you apply to First Nations Court, and help you find a lawyer and someone to write your Gladue report.
  • Native Courtworkers, from NCCABC, assist Aboriginal people involved in the criminal justice system to obtain fair, just, equitable and culturally sensitive treatment.
  • Indigenous Community Legal Clinic (ICLC), from the Peter A. Allard School of Law at UBC, provides legal services to the Indigenous community in the Downtown Eastside of Vancouver, and throughout the Lower Mainland.
  • Find more help near you on Clicklaw HelpMap.

See our related common questions:

sentencing, Gladue, First Nations Court, criminal court, circle sentencing, restorative justice, Gladue report, Gladue rights, coronavirus, COVID-19, covid19, Indigenous peoples