OTTAWA -- Anti-spanking advocates carried their cause to the country's highest court yesterday, arguing corporal punishment of children should be outlawed as an affront to human dignity. "This case is about the right of children not to be hit, a right that in a modern, 21st-century democracy should be unquestioned," lawyer Paul Schabas told the Supreme Court of Canada.

He got a skeptical reception from some of the nine judges, who sharply questioned his legal reasoning.

He also met vigorous opposition from the federal government, which maintained that, whatever the merits or pitfalls of spanking, parents should be free to resort to it in "mild to moderate" measure.

At issue is Section 43 of the Criminal Code, enacted more than a century ago, which protects parents, teachers and caregivers from prosecution for using "reasonable" force to discipline children.

Children's advocacy group the Canadian Foundation for Children, Youth and the Law wants that immunity struck down as a violation of the Charter of Rights.

"Section 43 has the effect of making children second-class citizens," Schabas said on behalf of the foundation.

He condemned the law as discriminatory, a violation of children's security of person and a legal green light for cruel and unusual punishment.

Justices Charles Gonthier, Ian Binnie and Frank Iacobucci questioned the need to overturn the law, noting it guarantees immunity for reasonable discipline, not for child abuse.

Opinions may differ on what is reasonable, but "that's a long way from saying (the law) is unconstitutional," observed Binnie.

Gonthier suggested striking down Section 43 could make parents liable to criminal charges for every smack on the bum.

Iacobucci took issue with the claim the law sends a message that spanking is officially sanctioned.

"This is a defence to assault," he said. "It doesn't mean it's a value to be promoted."

The court reserved judgment after three hours. No date has been set for a decision.

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