Determining Indigenous Identity for the Purposes of Gladue Sentencing Considerations

Abstract

Indigenous identity fraud is a growing concern in Canadian society as the Indigenous heritage of several prominent Canadians has been called into question in recent years. Individuals may falsely assert Indigenous ancestry in the hope of garnering some type of benefit or advantage, including advantages in a legal context. While it is important that the legal system is on guard against Indigenous identity fraud, it also must be cognizant of the dangers inherent in creating overly onerous evidentiary burdens to establishing one’s Indigenous heritage for the satisfaction of the courts given the separation that Indigenous persons may have from their ancestry as a direct result of colonialism. This article explores the issue of Indigenous identity in the specific context of Gladue sentencing considerations, surveying the relevant jurisprudence to identify the various approaches to Indigenous identity in the context of Gladue and the outstanding issues in this challenging area of the law.