Type of document: Prosecution Directive
Effective date: February 13, 2019

Canada has distinct legal and constitutional obligations to Indigenous peoples derived from the recognition and confirmation of Aboriginal and Treaty rights in The Constitution Act, 1982. The Criminal Code, the Youth Criminal Justice Act, and legal decisions of the Supreme Court of Canada, requires consideration of the unique circumstances of Indigenous peoples.

Indigenous peoples within Canada include status and non-status First Nation, Inuit and Métis peoples. Many Indigenous peoples may prefer to self-identify as members of a specific community.

Canada’s history of colonialism towards Indigenous peoples has included harmful policies of forced assimilation, displacement and child apprehension. The intergenerational impact of policies such as the ‘60’s scoop’ and residential schools has fragmented and dislocated families and communities and has caused significant trauma to Indigenous peoples and communities.

Many Indigenous peoples view the Canadian justice system as a foreign system that has been imposed upon them without their consent. Indigenous communities may prefer to adopt restorative justice principles that reflect Indigenous values and laws. Restorative justice principles can include a focus on relationships, repairing harm, taking responsibility and taking personal and family history into account.

Prosecutors should be familiar with the history of Indigenous peoples and understand the impact of that history on Indigenous accused, victims and communities. Prosecutors should also be aware of the value of restorative approaches to justice.


A strong, positive working relationship based on mutual respect between Prosecutors and Indigenous communities, including police, advances the public interest. Prosecutors should work together with Indigenous leaders and Elders to build local relationships that ensure social harmony and community safety. Where feasible, the formation of a joint plan to promote safety in the community could be formulated through efforts by the community, police and the Crown Attorney.

Criminal proceedings

Indigenous peoples are overrepresented in virtually all aspects of the criminal justice system. There is widespread bias against Indigenous peoples within Canada and there is evidence that this widespread racism has translated into systematic discrimination in the criminal justice system.

The Prosecutor must maintain a flexible and open approach to criminal matters arising in Indigenous communities. The unique circumstances of an Indigenous accused, including their background, community history, and the effects of systemic discrimination should be considered at many stages of criminal proceedings, including bail and sentencing.

The Prosecutor should be aware of Indigenous programs and services in the courts and the community that are tailored and available to meet the unique needs of Indigenous persons in the criminal justice system, such as restorative justice diversion programs, Aboriginal Court Workers, Gladue Courts, Friendship Centres, and Indigenous Legal Services.


For certain offences, diverting Indigenous accused to Indigenous Restorative Justice Programs may serve as an effective alternative to formal prosecution. Indigenous Restorative Justice Programs hold an Indigenous accused accountable for criminal conduct by bringing them before members of Indigenous communities with a focus on developing a plan that will allow the accused to take responsibility for their actions, address the root causes of the problem, and reintegrate into the community in a positive way.

Indigenous Restorative Justice Programs should be recommended where diversion is appropriate and the program is available. These programs may be meaningful to the Indigenous accused due in part to the fact that the consequence is imposed by community members often including respected Elders.

Prosecutors may consider the appropriateness of a community based sanction only if a reasonable prospect of conviction exists. A Prosecutor must not impose additional requirements on the accused person as a precondition to offering diversion.

When determining eligibility for diversion, Prosecutors should consider the background and systemic factors that brought an Indigenous accused in contact with the criminal justice system.

Reference should be made to the Community Justice Programs for Adults Directive, the Youth Criminal Justice: Extrajudicial Sanctions Directive and the Mentally Ill Accused: Alternatives to Prosecution Directive.

Judicial interim release (bail)

When determining a position on bail, the Prosecutor must apply the general principles set out in the Judicial Interim Release (Bail) Directive and consider the background and unique circumstances of an Indigenous accused and their connections to the Indigenous community. The Prosecutor should also consider the distance and remoteness of many Indigenous communities and the barriers that this creates for access to bail hearings and forms of release. A significant disadvantage is created since the accused is unlikely to have established connections or supports in the community in which the bail hearing is taking place. In these circumstances, seeking the detention of an Indigenous accused should remain an exceptional measure unless the release of the accused would jeopardize the safety and security of the victim or the public. Although the Prosecutor should keep in mind the principles referred to by the Supreme Court in Gladue, a Gladue report should not be requested by the Prosecutor for a bail hearing.

As with all accused, conditions of release shall not be imposed to change an Indigenous accused’s behaviour or to punish the accused. These conditions often relate to therapeutic or rehabilitative measures and are more appropriate following conviction. The Prosecutor must ensure that any conditions she recommends on a bail release are necessary and appropriate to the circumstances of the Indigenous accused and relate to the alleged offence. The Prosecutor should only request conditions that are necessary to ensure public safety or to ensure attendance, and with which an accused can realistically comply.

Reference should be made to the Judicial Interim Release (Bail) Directive.


The Prosecutor must consider the unique systemic and background factors that may have played a part in bringing an Indigenous offender before the court in determining a position on sentencing. These factors may mitigate the Indigenous accused’s moral blameworthiness. These factors are also relevant in assessing other principles of sentencing and to the types of sentencing options that may be appropriate because of the offender`s particular Indigenous heritage or connection.

In determining a fit sentence, the court shall consider information provided by a Gladue Report, an enhanced Pre-Sentence Report and/or the submissions of defence counsel and the Prosecutor. This information could include a description of relevant community supports. The Prosecutor should provide the court with any relevant information that the Prosecutor is aware of about the Indigenous offender’s background or unique circumstances.

Information about the offender and community in sentencing

Where the Prosecutor is seeking a significant custodial sentence, the accused, Prosecutor and/or judge may request that a Gladue Report be prepared following a finding of guilt or guilty plea.

A Gladue Report provides information to the court about the offender and their community including the unique systematic or background factor which may have played a part in bringing the particular Indigenous offender before the courts and may reduce the moral blameworthiness of the offender.

A Gladue Report contains information collected from research about the community and interviews conducted with the offender, family members, community leaders and others with relevant background information about the offender. The report also provides information of the types of sentencing procedures and sanctions that may be appropriate in the circumstances of the offender because of their particular Indigenous heritage or connection.

Although a Gladue Report is preferable, where one is not available, information about the offender and their community may be collected and provided to the court in an enhanced Pre-Sentence Report that would contain information about the offender’s community obtained from research and interviews.

In addition, the Prosecutor may consider requesting a summary Gladue Report, use a past Gladue Report or work with defence counsel to introduce alternative sources of information (e.g. letters from family, friends, service providers and community members).


The Prosecutor should ensure that efforts are made to refer an Indigenous victim to Indigenous-specific Victim Services or, if Indigenous-specific services are not available, to Victim Witness Assistance Program or other victim services support.

The Prosecutor must ensure that efforts are made to advise an Indigenous victim of testimonial aids that are available and appropriate to the circumstances. Further, steps should be taken to ensure that the Indigenous victim has access to translation and interpretation services into the victim’s first language so that the victim can fully participate in the criminal proceeding.

As soon as feasible after an accused person is found guilty, the Prosecutor must take reasonable steps to provide an Indigenous victim with the opportunity to prepare a Victim Impact Statement, and inform the victim of their right to present it in court and their other options.

Reference should be made to the Victims Directive and the Testimonial Aids and Accessibility Directive.