Source: (2013) Osgood Hall Law Journal. 51:199-249.

The Safe Streets and Communities Act [SSCA), a recent and wide-reaching piece of the Conservative Party of Canada's tough-on-crime agenda, will exacerbate the ongoing crisis of Indigenous over-incarceration. In this article, I review the extensive literature that addresses the causes of Indigenous over-representation in the Canadian criminal justice system before assessing the impact of R v Gladue, nearly fifteen years after the Supreme Court of Canada's decision. I analyze how the SSCA will restrict courts' resort to Gladue, thus resulting in the incarceration of increasing numbers of Indigenous people. I then develop one avenue of constitutional challenge to the SSCA's mandatory minimum sentences that is tailored to Indigenous offenders. Drawing on insights from Gladue and from the cases that followed it, I argue that the meaning of "cruel and unusual punishment" under section 12 of the Canadian Charter of Rights and Freedoms should shift in the case of Indigenous offenders to account for the well-established connections between colonialism and the over-incarceration of Indigenous people. (author's abstract)