The Jan 30/04 decision of the Supreme Court of Canada on the constitutional challenge to section 43 was a split decision with 3 dissenting judgments. The majority held that lower courts must consider the section in light of the following criteria:
- correction is not the result of the caregiver’s frustration, loss of temper or abusive personality;
- correction is not punitive and does not focus on the gravity of the child’s wrongdoing;
- the child is not incapable of learning because of disability or some other contextual factor;
- force is not used against a child under 2 years or over 12 years of age;
- force does not involve the use of objects or slaps or blows to the head; or
- force does not cause bodily harm or raise a reasonable prospect of bodily harm and is of a minor, transitory and trifling nature.
See Constitutional Challenge chapter for other information and comment on this decision.