Why was section 43 challenged in the courts?
Our government has rejected requests from many organizations, researchers, individuals, and Parliamentary Committees to repeal or at least initiate public hearings on s. 43. In 1998 the Canadian Foundation for Children, Youth and the Law began an action in the Ontario courts to have the section struck down on the basis that it violates the Canadian Charter of Rights and Freedoms. The Ontario Superior Court criticized s. 43 but held that it did not violate the Charter. The Ontario Court of Appeal held that even if s.43 violates the Charter, it is nevertheless justified. The Supreme Court of Canada heard an appeal from this judgment and on January 30, 2004 issued a split decision in which the majority upheld the section but stated that certain new criteria should be used to interpret it. Three justices filed dissenting opinions. See The Law, Supreme Court of Canada Decision for a note on the decision and a summary of lower court judgments interpreting the decision. Our Constitutional Cha
