Equality of the sexes in sentencing

Equality of the sexes before the sentence: none

Sentence

A mother who kills her newborn while disturbed by the birth faces at most five years under section 233 of the Criminal Code. A father who does the same faces life for murder. The Law Reform Commission recommended repeal in 1984. The section stands. The bill removes it.

Grounds

Statute

The Criminal Code defines the offence and fixes the punishment by the sex of the offender.

Criminal Code, s. 233: “A female person commits infanticide”; s. 237: maximum five years. The same act by the father is murder under s. 229: imprisonment for life, parole eligibility from ten to twenty-five years under s. 745.

Paper · the bill, both versions

Charter

The Charter guarantees its rights equally to male and female persons.

Canadian Charter of Rights and Freedoms, s. 28, notwithstanding anything else in the Charter; s. 15, equal protection and equal benefit of the law without discrimination based on sex.

1984

A federal body recommended that the distinction go. It was never enacted.

Law Reform Commission of Canada, Homicide, Working Paper 33, 1984, at 76 and 77: medical evidence “no longer justifies” denying the same treatment to fathers. R v Coombs, 2003 ABQB 818, para. 35: the same question, unanswered.

Custody

A man found guilty goes to custody in 35.2% of cases, a woman in 24.7.

Statistics Canada Table 35-10-0030-01, 2022/2023, inside each offence category. In categories with at least 100 female guilty cases, 46 of 47 run against men; at 200, no exception. Statistics Canada measured the disparity of Indigenous accused on 6 May 2025 and has never measured it by sex.

Paper · custody table, 2021 to 2023

Asked

Parliament and the departments were asked. None answered on the substance.

Member of Parliament for Ottawa Centre: three letters, two automatic acknowledgements, a self-set date of 26 September 2026 passed. A Senator’s office: nothing. Justice committee: brief circulated, two questions unanswered. Department of Justice: fee waiver refused without reasons, before the Information Commissioner, complaint 5826-04320. Statistics Canada: 90-day extension, before the Commissioner.

The bill

One rule for both sexes, and the outcomes measured.

Part 1, in two versions for Parliament to choose: repeal of s. 233, or its extension to any person caring for the newborn. A principle of sentencing: no sentence increased or reduced by sex or gender, stated by the court. An annual report of sentences by sex. Part 2: the Corrections and Conditional Release Act without distinction by sex, and the cost of custody published by sex. Drafted 28 August 2026; not introduced.

Text of the bill

An Act to amend the Criminal Code and the Corrections and Conditional Release Act (equality of the sexes in sentencing)

Preamble

Whereas section 28 of the Canadian Charter of Rights and Freedoms provides that, notwithstanding anything in that Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons;

Whereas section 15 of that Charter provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination based on sex;

Whereas the Criminal Code continues to define an offence, and to fix its punishment, by reference to the sex of the person who commits it;

Whereas Parliament has never required that differences in sentencing outcomes between male and female offenders be measured, published or explained;

Whereas equality before the law is not satisfied by equality of intention alone and requires equality of measured outcome;

Whereas the difference in liability may be removed either by withdrawing the reduced offence from those who now hold it or by extending it to those now excluded from it, and the choice between those two courses belongs to Parliament;

Whereas what does not belong to Parliament is the preservation of the difference on the ground that neither course is convenient;

And whereas Parliament affirms that no person is to receive a heavier or a lighter sentence in Canada because that person is a man or because that person is a woman;

Now, therefore, His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1 This Act may be cited as the Equal Sentencing Act.

PART 1 — R.S., c. C-46 — CRIMINAL CODE

Infanticide — VERSION A (repeal: every person answers under the law of homicide)

2 Sections 233 and 237 of the Criminal Code are repealed.

3 Section 662 of the Act is amended by striking out every reference to infanticide.

4 Section 663 of the Act is repealed.

5 For greater certainty, nothing in sections 2 to 4 limits any defence, excuse or justification available at law to a person charged with an offence in respect of the death of a newly-born child, including the defence of mental disorder under section 16 and the provisions governing unfitness to stand trial.

Infanticide — VERSION B (extension: every person may rely on the offence)

2 Section 233 of the Criminal Code is replaced by the following:

233 (1) A person commits infanticide when, by a wilful act or omission, the person causes the death of a newly-born child of whom the person has the care, if at the time of the act or omission the mind of that person is disturbed by reason of (a) not having fully recovered from the effects of giving birth to the child, or from the effect of lactation consequent on the birth of the child; or (b) a disorder of the mind arising from the care of that newly-born child, including a disorder arising from sustained deprivation of sleep. (2) For greater certainty, subsection (1) applies to a person without regard to the sex or the gender of that person.

3 Section 237 of the Act is replaced by the following:

237 Every person who commits infanticide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

4 Section 663 of the Act is amended by replacing every occurrence of "a female person" with "a person" and every occurrence of "she" and "her" with wording appropriate to a person of any sex, without any other change in effect.

5 For greater certainty, nothing in sections 2 to 4 increases the punishment to which any person is liable in respect of any conduct.

NOTE TO THE LEGISLATIVE COUNSEL. Version A and Version B are alternatives. One of them is to be enacted, and Parts 1 (from "Principles of sentencing" onward) and 2 apply unchanged whichever is chosen. The petitioners and the sponsor of this measure express no preference between them. The object is the removal of the distinction, not its relocation.

Principles of sentencing

6 Section 718.2 of the Act is amended by striking out "and" at the end of paragraph (d), by adding "and" at the end of paragraph (e) and by adding the following after paragraph (e):

(f) a sentence shall be neither increased nor reduced by reason of the sex or the gender of the offender, and a difference between the sentences ordinarily imposed on male offenders and those ordinarily imposed on female offenders for substantially similar conduct is not a reason for imposing a sentence that departs from the sentence that would otherwise be fit.

7 The Act is amended by adding the following after section 726.2:

726.3 (1) When imposing a sentence, a court shall state on the record that it has complied with paragraph 718.2(f). (2) Where a court imposes a sentence outside the range of sentences ordinarily imposed for substantially similar conduct by offenders of the other sex, the court shall state the reasons for doing so. (3) A failure to comply with this section does not affect the validity of the sentence, but the statement or its absence forms part of the record for the purposes of an appeal against sentence.

Reporting

8 The Act is amended by adding the following after section 718.3:

718.31 (1) The Minister of Justice shall, within six months after the end of each fiscal year, cause to be tabled in each House of Parliament a report setting out, in respect of proceedings under this Act concluded during that fiscal year: (a) the number of charges, of convictions and of stays or withdrawals, disaggregated by the sex of the accused; (b) the proportion of convictions resulting in a custodial sentence, a conditional sentence, a suspended sentence, a fine or a discharge, disaggregated by the sex of the offender; (c) the median and mean length of custodial sentences imposed, disaggregated by the sex of the offender; and (d) the figures required by paragraphs (b) and (c), adjusted so as to hold constant the offence charged, the offender's prior criminal record, whether the offender pleaded guilty, whether a weapon was used and the degree of harm caused. (2) The report shall state, for each difference disclosed by the figures required by paragraph (1)(d), whether that difference is statistically significant, and shall set out the methodology used. (3) Where the data necessary to produce a figure required by subsection (1) are not collected, the report shall say so expressly, shall identify the body that would collect them and shall state the date by which their collection will begin. (4) The Minister shall discharge the duties under this section from moneys appropriated by Parliament for the ordinary operation of the Department of Justice and in cooperation with the Chief Statistician of Canada. 718.32 Within one year after the third report is tabled under section 718.31, a committee of the Senate, of the House of Commons or of both Houses that is designated or established for that purpose shall review those reports and shall report to the House or Houses that established it, stating whether any difference in sentencing outcome by sex remains unexplained and, if so, recommending measures to eliminate it.

PART 2 — 1992, c. 20 — CORRECTIONS AND CONDITIONAL RELEASE ACT

9 The Corrections and Conditional Release Act is amended by adding the following after section 4:

4.1 (1) The Service shall provide security classification, correctional programs, work, education, vocational training, health care and mental health care to offenders without discrimination on the basis of sex. (2) Nothing in subsection (1) prevents the Service from taking a measure that is required to respond to a need arising from pregnancy, childbirth or a health condition specific to one sex, or from housing offenders separately. (3) The Commissioner shall publish annually, in respect of the preceding fiscal year: (a) the average annual cost of custody per offender, by sex and by institution; (b) the number of hours of correctional programming, of education and of vocational training made available per offender, by sex and by institution; and (c) the ratio of health care and mental health care staff to offenders, by sex and by institution.

COMING INTO FORCE

10 (1) Sections 2 to 5 and 9 come into force on the ninetieth day after the day on which this Act receives royal assent.

(2) Sections 6 and 7 come into force on the first day of the fiscal year that begins after the day on which this Act receives royal assent.

(3) Section 8 applies in respect of the first full fiscal year that begins after the day on which this Act receives royal assent.