Bills

Equality of the sexes in sentencing

Drafted 28 August 2026 · an Act to amend the Criminal Code and the Corrections and Conditional Release Act · not yet filed

The distinction is printed in the federal statute, in words.

What the statute says

233 A female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed.

Criminal Code, R.S.C. 1985, c. C-46, s. 233

The punishment is fixed by section 237: an indictable offence, maximum five years.

The same act, by the father of the same newly-born child, in the same house, on the same night, is murder under section 229: imprisonment for life, with parole eligibility set between ten and twenty-five years under section 745.

What the Act does

1. The distinction goes, and Parliament chooses how

Part 1 is drafted in two alternative versions, and Parliament enacts one of them. Version A repeals the offence, so that every person answers under the law of homicide. Version B extends it to any person having the care of the newly-born child, so that every person may rely on it.

The draft does not prefer either. What it does not permit is that the distinction survive because neither version was convenient.

2. A principle of sentencing, and a statement on the record

A sentence is neither to be increased nor reduced by reason of the sex or gender of the offender, and the court states, when imposing sentence, that it has complied with that principle. A principle nobody is required to mention is a principle nobody can be shown to have ignored.

3. Outcomes get measured

The Minister of Justice tables in each House an annual report of sentencing outcomes disaggregated by sex and controlled for the offence, the criminal record, the plea and the aggravating circumstances, and a committee of Parliament reviews it. Parliament has never required that these differences be measured, published or explained.

4. Custody, after sentence

The Corrections and Conditional Release Act is amended to require classification, programming, work, education and health services without discrimination on the basis of sex, and to require public reporting of the per-offender cost of custody by sex and by institution.

A federal body said this in 1984

The Law Reform Commission of Canada examined the provision and recommended that it go. Parliament created that Commission by statute and paid for it out of federal funds.

Certain related stresses may affect the father as well as the mother… medical evidence no longer justifies … denying [special treatment] to fathers acting under related stresses, or to mothers who kill children over one year old… In other words, there would be greater justification for a more general defence involving mental disturbance in such circumstances.

Law Reform Commission of Canada, Homicide (Working Paper 33), 1984, at 76 and 77

The recommendation was never enacted. A judge of the Court of Queen’s Bench of Alberta asked the same question in R v Coombs, 2003 ABQB 818, at paragraph 35, and it was not answered either.

The measured gap

In 2022/2023 a man found guilty in Canada received a custodial sentence in 35.2 percent of cases, and a woman in 24.7 percent. The comparison is taken inside each offence category. Aggregate rows are excluded because they double count what the categories already contain.

Two years, 2021/2022 and 2022/2023. Where a category carries at least 100 female guilty cases, 46 of 47 run against men, and robbery is the only exception anywhere in the set. Where a category carries at least 200, there is no exception at all.

The divergence sits in custody alone. Conditional sentences differ by 0.1 percentage points between the sexes and probation by 0.9, and the courts impose fines more often on female accused.

On 6 May 2025 Statistics Canada published a disparity study of Indigenous accused and White accused, using an adjusted measure of its own design. It has never run that measure on the sex of the accused. Section 28 of the Charter names sex in express words.

The constitutional footing

Section 28 of the Canadian Charter of Rights and Freedoms guarantees the rights in it equally to male and female persons, notwithstanding anything else in the Charter. Section 15 guarantees equal protection and equal benefit of the law without discrimination based on sex. The Criminal Code continues to define an offence, and to fix its punishment, by reference to the sex of the person who commits it.

Asked, and what came back

Every letter below concerns section 233 alone. The dates are the dates the letters were sent, and each answer is recorded as it arrived.

The papers

The bill, both versions, as drafted.
The custody table, every category, both years.

The custody figures are computed from Statistics Canada Table 35-10-0030-01.