Duhaime's Law Dictionary


Gladue Rights Definition:

(Canada) Purported special rights available only to Aboriginal offenders on sentencing.

Related Terms: Sentencing Circle, Restorative Justice, Consultation Circle

An ambitious and controversial judicially-manufactured and judicially-sanctioned affirmative action, or reverse discrimination doctrine based on a 1999 Supreme Court of Canada decision, R. v Gladue, which purports to extend to aboriginal Canadians where facing sentencing in Canadian courts, and available only to aboriginal Canadians and to no other member of a social or cultural group within Canada, special consideration based upon the alleged unique circumstances of aboriginal people in Canada.

Gladue rights, as they have become known to the growing cottage industry of those who seek to participate in the process by becoming special service providers (the product being a Gladue report, prepared by some person presumably specialized in aboriginal communities), refers to the rights of aboriginal people to receive from a sentencing judge special consideration for their cultural and personal uniqueness including a unique direction in regards to judicial notice which exacerbates the reverse discrimination as to all non-aboriginal offenders, but providing a clear benefit to aboriginal offenders:

"In sentencing an aboriginal offender, the judge must consider the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. In order to undertake these considerations the trial judge will require information pertaining to the accused. Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing."

Indeed, the reaches of the Gladue decision are now wide-spread. For example, the Legal Services Society of British Columbia (legal aid) encourages aboriginal offenders to assert their "Gladue rights". They have published a hand-out which repeats the socio-political statements made by the Supreme Court of Canada. For example, this, from the British Columbia legal aid agency presented to the public at-large as statements of fact from Canada's highest court:

  • "There are too many aboriginal people being sent to jail....
  • "Aboriginal people face racism in Canada and in the justice system....
  • "When the judge's sentencing (an Aboriginal), he or she must consider all options other than jail."

According to proponents, in R v Gladue, the Supreme Court of Canada breathed life into the following italicized words at §718.2 of the Criminal Code of Canada:

"A court that imposes a sentence shall also take into consideration the following principles ...  all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders."

It was the court's view that these words were an acknowledgement on the part of the Canadian Parliament that:

"The circumstances of aboriginal offenders ... are unique and different from those of non-aboriginal offenders. There is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction." 

Justices Cory and Iacobucci writing for the majority of the court, used the court, a non-elected legislative body, for the purposes of advancing a political view of the administration of criminal justice in Canada. Consider that in this decision, from which there was no appeal, the judges referred to:

  • "Overrepresentation of aboriginal Canadians in penal institutions";
  • "The problem of over-incarceration in Canada"
  • "The systematic use of the sanction of imprisonment in Canada"; and
  • "Imprisonment quickly came to be condemned as harsh and ineffective, not only in relation to its purported rehabilitative goals, but also in relation to his broader public goals".

Further along this path of politics, the Court incorporated these words from two other sources  which, while not specific to aboriginals, nonetheless clearly statements of public policy and not of judgeship:

"Imprisonment should be avoided if possible and should be reserved for the most serious offences, particularly those involving violence.... Imprisonment should be used only as a last resort and/or that it should be reserved for those convicted of only the most serious offences."

In the result, the Supreme Court of Canada endorsed the concept of restorative justice, not a problematic experiment were it readily available, across the board, to all Canadian offenders, and which they defined as:

"... an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist.  The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender.  The focus is on the human beings closely affected by the crime."

At ¶79 of the decision, the court suggested that the mere fact of an offender being aboriginal provides an offender with an incarceration discount:

"In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender....

But then awkwardly tries to reassure reasonably alarmed Canadians that:

"(But it should not be) assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed.... §718.2 should not be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period of incarceration, simply because the offender is aboriginal."

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