Gladue Courts

Source: CBC

The First Nations / Indigenous Courts in Canada are a mechanism of justice for individuals who are Aboriginal or Indigenous and either plead guilty to a crime or are found thus. They have the right to have their bail or sentencing hearing in a First Nations or Indigenous Court. An individual may approach such a court directly, or may be referred to such a court by a judge, or defence or Crown lawyer. The key, however, is that it is left to an individual’s agency and choice to have their matter heard by a First Nations/Indigenous Court.  

These courts are also called The Gladue Courts, as they apply what are known as the Gladue Principles, which offer a judge a means to consider the unique circumstances and lived experiences of Indigenous people. In 1999, in the Gladue Case, the Supreme Court of Canada recognized the impact of colonialism on Indigenous people, particularly manifesting in their increased vulnerability to incarceration. In an attempt to address historical wrongs, the Gladue principles were adopted to avoid repeating the same discriminatory approaches toward Indigenous principles through the justice system. There have been criticisms, however, that the high sentencing of Indigenous people continues unchanged, and that colonial practices operate in a variety of ways not limited to sentencing alone. There have also been criticisms of the sidelining of sex and gender in these proceedings, especially when Indigenous women have been involved.

 The First Nations/Indigenous Courts are essentially criminal sentencing courts that rely on restorative and traditional justice mechanisms to arrive at balance and healing. They focus on balancing rehabilitation, accountability, healing, and restoration, and work with a wholesome ecosystem of individuals comprising the judge, lawyer, Elders, community and family members, and the individual themselves. These courts work to create a healing plan to help restore mental, physical, spiritual, emotional, and psychosocial health.

The key focus of the First Nations/Indigenous Courts is on community and healing. In implementing restorative justice principles, the judge specifically works with the individual, their family, and country to arrive at a sentence other than imprisonment wherever possible. This means that while a jail sentence may be a penal outcome, the judge may well consider the individual’s unique circumstances – such as their background, current needs, and where they can get help for the challenges that brought the individual to court – in defining their decision. The idea behind a sentence in itself is to restore balance, make amends to victims, and heal the individual and community. It also requires lawyers, the individuals approaching these courts, as well as Elders, and family and community members to work together to come up with a healing plan for the individual.   

In the First Nations/Indigenous Courts, the individual, their lawyer, family and friends, community members, Elders, and other support people are all welcome. Not everyone has to speak in court, but they all have an equal chance to be heard should they so wish to speak. The judge involves everyone in coming up with and defining the healing plan. The healing plan aims at working with the individual to help them, their communities, and their victims to heal and move on. It helps the individual work through the challenges that got them into trouble with the law. For their part, the individual is expected to take responsibility and be accountable for their actions. Once the plan is made and agreed upon, it is implemented. The individual returns to the court several times so the judge and Elders can assess progress with the healing plan.

References:

https://aboriginal.legalaid.bc.ca/courts-criminal-cases/gladue-rights

https://aboriginal.legalaid.bc.ca/courts-criminal-cases/first-nations-court

Peterson, H. J. (2019). Applying Gladue principles requires meaningful incorporation of indigenous laws and perspectives, including consideration of community-based alternatives to incarceration (Doctoral dissertation, University of Saskatchewan).

 Baigent, C. (2020). Why Gladue needs an intersectional lens: The silencing of sex in Indigenous women’s sentencing decisions. Canadian Journal of Women and the Law, 32(1), 1-30.