Making matters worse: The Safe Streets and Communities Act and ongoing crisis of Indigenous over-incarceration.

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)