The Supreme Court of Canada: its history, powers and responsibilities.

I. INTRODUCTION

In September 2000, the Supreme Court of Canada celebrated its 125th anniversary. This occasion provided Canadians, and especially those of us intimately related to the Court, with an opportunity to reflect upon the development of this national institution. As part of the celebrations, a conference on various topics drew our attention to the incremental steps taken through which the modern Supreme Court of Canada has emerged from its unpromising and modest beginning. (1) Commemorating 125 years of the Court's work also occasioned some reflection on the structure and composition of the Court, and the manner in which its position has evolved over time. This essay aims to provide an overview of the historical development of the Court and a discussion of its present-day role, jurisdiction, and responsibilities. This will, I hope, afford an understanding of the Supreme Court of Canada's tradition as well as a basis for comparative assessments with judicial systems and approaches in other nations.

II. THE HISTORY OF THE SUPREME COURT OF CANADA (2)

In the constitutional conferences that led to the creation of Canada in 1867, there was very little discussion about creating a Supreme Court. Section 101 of the British North America Act, 1867, the founding constitutional document that joined Canada in a united confederation, authorized Parliament to "provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada...." However, the path to establishing a national Supreme Court was fraught with considerable difficulties and challenges.

The first Canadian government, under Sir John A. Macdonald, introduced bills in Parliament in 1869 and 1870 to provoke discussion on the creation of a national supreme court; however, these bills were met with substantial debate and controversy. Some legislators questioned whether there was a need for a supreme court, given that all final appeals at the time were heard by the Judicial Committee of the Privy Council in England. This concern in turn prompted a debate on whether appeals to the Privy Council should be abolished. Other Parliamentarians voiced anxieties over whether a single Supreme Court for all of Canada would be able to protect and preserve the civil law system, which is unique to the province of Quebec. The Macdonald government was not able to reconcile these competing concerns before its electoral defeat in 1873.

In 1875, under the leadership of Prime Minister Alexander Mackenzie, the issue of establishing a national supreme court was again raised by legislators. Later that year, Parliament enacted the Supreme Court Act. (3) This statute created a final Canadian appeal court, the Supreme Court of Canada. The Court was composed of six members: one Chief Justice and five puisne (4) Justices. It is interesting to note that the Exchequer Court of Canada was also created in 1875 and the judges of the Supreme Court of Canada also served as judges of the Exchequer Court. Showing how informal procedures were in those days, the judges of the Supreme Court could sit in appeal of their own judgments. (5)

The Supreme Court Act also attempted to respond to the concerns raised by civil law jurists in Quebec by requiting that two Justices of the Supreme Court be from the bar of Quebec, and by limiting the Court's jurisdiction in civil appeals from that province to cases involving disputes over a minimum amount of $2,000.

Although the Mackenzie government was prepared to abolish appeals to the Privy Council upon the enactment of the Supreme Court Act, legal steps taken in England prevented this from being carried out. As a result, even after this legislation took effect, parties remained entitled to appeal judgments of the Supreme Court of Canada to the Privy Council with leave of the latter court, and per saltum appeals, that is, appeals from provincial appellate courts directly to the Privy Council, also remained possible. This state of affairs meant that the Supreme Court was not in fact the court of last resort in the country with the accompanying implication that it was an inferior tribunal in need of supervision by a higher appellate court.

The ability to appeal decisions of the Supreme Court of Canada to the Privy Council remained in place until 1933 for criminal appeals and 1949 for civil appeals. The path to these milestones was marked by several challenges. In 1887, Parliament attempted to abolish criminal appeals to the Privy Council by amending the Supreme Court Act. Although this amendment remained on the books for nearly forty years, the Privy Council ultimately struck it down in 1926 as being outside the powers of Canada's Parliament. Parliament made another attempt to abolish criminal appeals to the Privy Council in 1933, and this time, the proposed legislation was upheld in the context of the Statute of Westminster, a 1931 Act of the British Parliament that granted Canada full political and legal independence.

Bills to abolish both civil and criminal appeals to the Privy Council were presented in the Canadian House of Commons in 1937, 1938 and 1939. In 1939, the constitutionality of these measures was examined by the Supreme Court in the form of a reference put to the Court by the Governor in Council. The Court held that Parliament could proceed to eliminate all appeals to the Privy Council. This decision was subsequently appealed to the Privy Council, which was unable to hear the case until after the Second World War. In 1946, however, the Supreme Court's opinion was affirmed and Parliament was allowed to abolish all appeals to the Privy Council. This process was completed in 1949, at which time a new era began for the Supreme Court of Canada as that of the court of last resort in the nation.

This dramatic change in the Court's legal status was accompanied by an increasing number of cases. Throughout the 1950s and 1960s, the Court made many internal changes and expanded its personnel in order to ensure that it remained able to carry out its function in Canadian society with success and efficacy. At the same time, these internal changes did nothing to affect the number or the nature of the cases that came before the Court. Although the Supreme Court of Canada had become the nation's court of last resort, it remained responsible for hearing a number of cases that did not raise challenging or important matters. As a result, changes to the Court's jurisdiction were made by Parliament, and in 1975, legislative amendments were adopted that permitted the Justices to decide whether to hear a civil appeal. The criterion for making this determination was whether the case raised an issue of public importance.

These amendments marked another turning point for the Supreme Court. In essence, the amendments allowed the Court to shed its role as a court of correction--meant to step in where the courts of appeal had erred--and become an institution for dealing with legal questions of national significance. As such, by 1976, the amendments to the Supreme Court Act were enacted allowing the Court to exercise "supervisory control" (6) over its docket by deciding which cases should be granted leave, or permission, to appeal. Consequently, appeal to the Supreme Court as of right has ended, save for criminal cases where there has been a dissent on a question of law in the provincial Court of Appeal (7) or where the acquittal of an accused has been reversed by the Court of Appeal. (8)

The most recent stage of the Supreme Court's development marks a pivotal reshaping of the nature of this institution. In 1982, the patriation of the Canadian Constitution, which until that time had been embodied in the British North American Act, 1867 (an act of the British Parliament), was accompanied by the Canadian Charter of Rights and Freedoms. The Charter entrenched personal rights and freedoms, Aboriginal rights, and a constitutional supremacy clause in Section 52 which declared that "[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." As such, constitutional supremacy, rather than parliamentary supremacy, now characterized the Canadian legal and constitutional landscape.

The Charter greatly affected the role and responsibilities of the judiciary. As constitutional interpreters, the courts became charged with striking down any law that conflicted with the Charter. Consequently, since 1982, the Supreme Court has been called upon to answer social, moral and policy questions framed in the context of legal and constitutional matters, subjecting the Supreme Court to increased public scrutiny and criticism. (9) Many of its cases have been the subject of extensive media coverage and social commentary. For example, in 1988, the Court declared that Canada's abortion law was unconstitutional. (10) It confronted Canada's rules on assisted suicide in 1993. (11) In 2001, it considered the legal culpability of taking the life of a severely disabled individual. (12) That same year the Court examined whether an individual could be extradited to face a criminal trial in the United States if there was a possibility that the accused might be subject to the death penalty. (13)

The Charter introduced a host of new constitutional issues to the Supreme Court, and fundamentally reconfigured its role. In this new era, application of the Constitution has encouraged the advancement of Canadians' rights and liberties and the protection of civil rights. It has also required the Court to consider and adjudicate upon the rights and claims of Canada's Aboriginal peoples.

Although the Charter has brought the Supreme Court of Canada into a new period of adjudication, its primary role and purpose remain the same. The Justices, while perhaps strongly in disaccord on a given topic, remain bound by their oath of office, by the many forms of judicial accountability, and by the obligations inherent in judicial independence. Their commitment to these institutional responsibilities has always served as the primary source of guidance for the Court's decision-making. Furthermore, although the Court's structure and function have evolved over time, its role as an arbiter of the challenging legal questions that arise in a diverse and rapidly evolving country and society, and as a guardian of constitutional rights, values and principles, has remained fundamentally intact.

III. STRUCTURE AND COMPOSITION OF THE COURT

The Supreme Court's composition has changed significantly over the years. Prior to 1927, the Supreme Court of Canada was composed of six Justices, but that number was increased to seven pursuant to a 1927 legislative amendment. Over the years, a custom of regional representation on the bench developed, so that the judges would bring a rich diversity of experience and understanding to the Court. Thus, when a seventh judge was added to the Court, he was selected from the Prairie provinces, and he joined one judge from British Columbia, two from Ontario, two from Quebec, and one from the Atlantic provinces. In 1949, the Supreme Court Act was again amended and two more positions were added to the bench. According to the terms of this amendment, one of the two new posts was to be filled by an individual from the Quebec bar. (14) This assured Quebec that one-third of the Court's membership would be filled by civil law jurists.

The composition of the Supreme Court of Canada remains much the same today as it was in 1949. Its members consist of the Chief Justice of Canada, and eight puisne Justices appointed by the Governor in Council (by prerogative, the Prime Minister nominates the individual) from among superior court judges or barristers having at least ten years' standing at the bar of a province or territory. As has been the convention, the Court is currently composed of two Justices from the Western provinces, one of whom is from British Columbia, three Justices from Ontario, three from Quebec, and one from the Atlantic provinces.

Although the historical face of the Supreme Court has not changed much in terms of regional representation, one important development is readily apparent. Consistent with the changing composition of the Canadian judiciary generally, today one-third of the Court's members, including the Chief Justice of Canada, are women, which sharply contrasts with the patriarchal climate that seemed to surround the Court's history and which surrounds the courts of many countries.

IV. NATURE OF THE COURT'S JURISDICTION AND ROLE

Given the Supreme Court of Canada's distinctive tradition and role, it is arguably the most unique among the world's highest courts. First, it is a bilingual court, in that it hears appeals argued in both English and French, and also publishes its decisions and all official documents in both languages. Second, it deals with matters emerging from civil law and common law jurisdictions in the country, and its membership is composed of judges from both of these legal backgrounds. Third, unlike the courts of Europe, the Supreme Court of Canada serves as both a constitutional court and a supreme court for the country. Fourth, in contrast to the United States, the Supreme Court of Canada sits at the top of a unified judicial system, and may hear appeals from provincial and federal courts alike. These cases may involve issues of private law (e.g. torts, contracts and property) and public law (e.g. labour, administrative, taxation and patents). The Court thus has an extremely wide jurisdiction because it may potentially hear an appeal from any court or tribunal in the country.

As discussed earlier, in most cases permission to appeal to the Supreme Court must be obtained from a panel of three judges of the Court. Leave to appeal is granted where a case involves a question of public importance or raises an important legal issue that warrants the Court's consideration. Applications for leave to appeal are assessed on the basis of written submission filed by the parties. Although an oral heating can be held, this is rarely done. In civil matters, the Court has tended to require that the issue in dispute exist in more than one province or be of such importance that it would have implications for other provinces. Where an appeal involves a basic question of constitutional law, leave typically will be granted. Similarly, if the Court is faced with a new and important question of law, it will grant leave. The importance of the Court's power to grant leave and thus control its own docket is brought to light when one considers the volume of applications for leave to appeal brought before the Court. For example, in 2000, there were 642 leave applications filed with the Supreme Court of Canada. This number marks a fifty-one percent increase in the number of leave applications submitted to the Court over the previous ten years. (15)

Because appeals as of right are available in certain criminal appeals, and because of the inherent importance of criminal law, which is a national law in Canada, the Supreme Court has a proportionately high criminal docket. This is amplified by the fact that, even where there has been no dissent or reversal of an acquittal at the Court of Appeal, leave to appeal in criminal cases often is granted given that criminal cases are frequently considered to raise issues of public importance because they involve the liberty of the subject.

The Court also hears references brought before it by the federal government. In these cases, the Court is asked to give opinions on legal questions referred to it by the Governor in Council. A similar reference power is given to the provincial governments, which can refer questions to their provincial Courts of Appeal. These decisions in turn can be appealed to the Supreme Court of Canada. Although the Court is not frequently called upon to hear references, its opinions on the questions that are referred to it by governments are often of great significance. (16) In many cases, the questions posed in a reference are constitutional in nature; however, parties may also raise constitutional issues in regular appeals, in which case the federal and provincial governments of the country must be notified, so that they may intervene to make submissions in regard to the particular constitutional questions.

The Supreme Court hears an appeal once the parties and any interveners have filed their written documents and arguments. A quorum of the Court consists of five members for appeals, but most are heard by a panel of seven or nine judges. Hearings involve time limits for each party, normally an hour, and ten, fifteen or twenty minutes for each intervener. However, with the approval of a judge of the Court, time limits can be extended for more complicated or significant cases. Upon the conclusion of the hearing, judgment usually is reserved so that the Justices may write reasons; however, on occasion, a decision may be rendered from the bench. The Court's judgments need not be unanimous; a majority may decide. Further, each Justice may write reasons in any case if he or she so chooses.

V. THE COURT'S REMEDIAL ROLE IN CHARTER CASES

Because of its great impact on the role of the Supreme Court, I should now like to discuss some aspects of the Canadian Charter of Rights and Freedoms, with particular reference to remedies the Court has developed in that area.

Aside from constitutionally entrenching rights and freedoms in Canada, the Charter's enactment in 1982 (17) also served to import new remedies for courts to consider and employ upon finding that a law is unconstitutional. (18) Before concluding that a legislative provision violates a constitutional right or freedom, courts are required under the Charter to undertake a specific analytical process, for Section 1 of the Charter "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

Because no right is absolute, Section 1 of the Charter is aimed at balancing individual and collective or societal rights. Although the text of the Charter does not provide extensive guidance on how limitations on Charter rights can be justified pursuant to Section 1, a structure for this analysis has been developed through the jurisprudence of the Supreme Court. This framework relies on a twofold test. First, the party claiming the right bears the burden of demonstrating that a right guaranteed by the Charter has been breached. Once a Charter infringement is found, the burden then shifts to the state, which must demonstrate that the infringement is justified as a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society. At this "justification" stage of this inquiry, the state must establish that: (1) the law pursues an objective that is of sufficient importance to justify infringing a Charter right; (2) the means chosen to pursue the objective are rationally connected to it; (3) the law impairs the complainant's Charter right as minimally as possible; and (4) there is a proportionality between the salutary and deleterious effects of the measure that limits the Charter right or freedom. (19)

When a court finds that a Charter infringement cannot be justified by Section 1, its focus then shifts to determining the appropriate remedy. At this stage, a court must rely on the remedial power conferred on it by Section 52(1) of the Constitution Act, 1982, which states: "The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect."

The Supreme Court's decision in Schachter v. Canada (20) discussed five different remedies which, pursuant to Section 52(1), may be employed where legislation has been found unconstitutional. These include striking down the legislation; severing the offending provision; striking down or severing the provision coupled with a temporary suspension of the declaration of invalidity; reading down the offending provision; or reading in appropriate wording. (21)

In determining which of these remedies to apply, a court must consider: (1) the extent of the inconsistency between the legislation and the Charter guarantees; (2) whether this inconsistency can be dealt with by severing a provision from the legislation, or reading in an extension to the offending provision(s) so that it complies with the Charter; and (3) whether a declaration of invalidity or severance should be temporarily suspended in order to give the legislature time to rectify the incompatibility between the statute and the Charter. (22)

The Charter also contains remedial provisions in Section 24. Section 24(1) is a general remedial provision which gives a court the power to remedy a Charter violation by ordering "such remedy as the court considers appropriate and just in the circumstances." In Schachter, the Supreme Court concluded that where a law has been declared unconstitutional, Section 52(1) of the Constitution Act, 1982 will be engaged and therefore, Section 24(1) generally will not apply. However, where Section 52(1) is not triggered, a remedy under section 24(1) of the Charter might be available. This occurs where the statute or provision in question is not in and of itself unconstitutional, but where some action taken under it infringes a person's Charter rights. Section 24(1) thus provides for an individual remedy for the person whose rights have been so infringed. (23)

Section 24(2) of the Charter is a specific remedial provision that allows a court, in certain circumstances, to exclude evidence obtained in a manner that infringed or denied any right or freedom guaranteed by the Charter. It states:

   Where, in proceedings under subsection (1), a court concludes that evidence
   was obtained in a manner that infringed or denied any rights or freedoms
   guaranteed by this Charter, the evidence shall be excluded if it is
   established that, having regard to all the circumstances, the admission of
   it in the proceedings would bring the administration of justice into
   disrepute.

The inquiry under Section 24(2) is divided into two steps. First, the court must find a violation of a constitutional right. Second, it must determine whether the admission of the evidence would bring the administration of justice into disrepute. If not, the evidence may be admitted, even if a Charter right has been infringed.

In assessing whether evidence should be excluded under Section 24(2), Canadian courts have adopted a flexible approach. Generally speaking, this has involved examining the effect of admitting the evidence on the fairness of the trial. If it is found that the admission of the evidence would not render a trial unfair, courts then proceed to consider the seriousness of the Charter infringement, and the effect of excluding the evidence on the repute of the administration of justice. (24)

Further, a court has the discretion to admit evidence even where there has been a Charter violation. For example, in R. v. Grant, (25) the police conducted warrantless perimeter searches, which the Supreme Court unanimously held were in breach of the accused's rights under Section 8 (26) of the Charter. However, the Court also found that the admission of the evidence derived from the illegal searches would not tend to render the trial unfair. Moreover, the police officers acted in good faith in that they were operating under the assumption that they had statutory authority to conduct the warrantless perimeter searches. Although the violations were serious ones in a number of respects, the Court found that the negative effect of excluding the evidence and the good faith of the officers outweighed the seriousness of the violations, and on balance, militated in favour of admitting the evidence. (27)

At the same time, where the admission of the illegally obtained evidence would render a trial unfair, or where the Charter breach is serious and the admission of the evidence would bring the administration of justice into disrepute, courts must exclude the evidence in question.

VI. CONCLUSION

In its 125-year history, the Supreme Court of Canada has emerged from its difficult and humble beginnings to become a fundamental national institution charged with protecting and preserving the rights and freedoms of individual Canadians. As seen throughout the discussion here, the tradition of the Court has, in many ways, remained unchanged. The membership of the Court is still marked by its representation of French and English Canada alike, by its understanding of the country's civil and common law systems, and by a regional diversity that ensures an appreciation for the disputes that arise across Canada's vast geography.

At the same time, it is beyond question that the role and function of the Supreme Court of Canada have dramatically transformed over time. Most notably, it grew from its origins as a court inferior to the Privy Council in England into the ultimate appellate court in the country. Further, with the abolition of most automatic appeals, the Court acquired control over its docket and went from a court of correction to a court which deals with appeals of national and public importance. Finally, with the introduction of the Charter, the Court emerged as the final arbiter on constitutional rights and freedoms. This period marked Canada's shift from a constitutional democracy based on parliamentary supremacy to one based on constitutional supremacy. With this development, the Supreme Court of Canada was called upon to engage far more frequently in difficult cases of constitutional judicial review involving alleged abuses of civil rights and liberties.

Throughout its history, Canada's Supreme Court has faced many changes and challenges; however, these encounters have been beneficial for the Court, serving to strengthen, shape and define its role and traditions. In this respect, one should also acknowledge the role of members of the legal profession, legal scholars, and commentators, as well as members of the public for their interest in the affairs of the Court and its ability to deal effectively with the many issues it confronts. Through the experience it has acquired during its growth and development, the Supreme Court has become well equipped to handle the questions and problems it will meet in the years to come.

(1.) For a collection of papers on various topics of interest delivered at the conference, see Commemorative Edition, 125th Anniversary of the Supreme Court of Canada, 79 Can. Bar Rev. (2000).

(2.) Much of my commentary on this topic is based on the discussion of the Supreme Court's history by The Right Honourable Antonio Lamer, P.C., Chief Justice of Canada, 1990-2000, in The Supreme Court of Canada and Its Justices 1875-2000: A Commemorative Book (Dundurn Group and the Supreme Court of Canada 2000); see also James G. Snell & Frederick Vaughan, The Supreme Court of Canada: History of the Institution (U. of Toronto Press 1985).

(3.) R.S.C. 1985, c. S-26.

(4.) A "puisne" justice is "junior in rank; subordinate." Black's Law Dictionary 1247 (Bryan A. Garner ed., 7th ed., West 1999).

(5.) This practice was abolished in 1887.

(6.) As termed by The Right Honourable Bora Laskin, P.C. See Lamer, supra n. 2, at 26.

(7.) See Criminal Code, R.S.C. 1985, c. C-46, S. 691(1)(a) (1985).

(8.) See Criminal Code, R.S.C. 1985, c. C-46, S. 691(2)(b). Under this section, if the Court of Appeal enters a verdict of guilty, the appeal is as of right. However, if the Court of Appeal orders a new trial, the accused has a right to an oral leave application under Section 43(1.2) of the Supreme Court Act, but no appeal as of right.

(9.) Of course, it should be pointed out that under the federalist system, the Supreme Court did invalidate laws that were unconstitutionally passed by one level of government, e.g. provincial, where the other level, federal, had jurisdiction; however, the enactment of the Charter brought with it a new dimension to the constitutional role of the Court by empowering it to declare that no government could, in given cases, enact the impugned legislation.

(10.) R. v. Morgentaler, [1988] 1 S.C.R. 30.

(11.) Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519.

(12.) R. v. Latimer, [2001] 1 S.C.R. 3.

(13.) U.S. v. Burns, [2001] I S.C.R. 283.

(14.) See Snell & Vaughan, supra n. 2, at 194.

(15.) Statistics on the number of appeal cases heard and related data are reported in the Supreme Court of Canada's Bulletin of Proceedings.

(16.) For example, a recent reference considered the legality under the Canadian Constitution and international law of the unilateral secession of the province of Quebec from Canada. See Reference re Secession of Quebec, [1998] 2 S.C.R. 217.

(17.) See n. 9, supra, and accompanying text.

(18.) It should be noted that Section 33, a unique provision of the Charter known as the "notwithstanding clause," allows Parliament or the legislature of a Province to override certain Charter rights in the event that a law is found to be in violation of one of these rights. For a discussion of the notwithstanding clause, see John D. Whyte, On Not Standing for Notwithstanding, 28 Alberta L. Rev. 347 (1990); Peter H. Russell, Standing Up for Notwithstanding, 29 Alberta L. Rev. 293 (1991); and Lorraine E. Weinrib, Learning to Live with the Override, 35 McGill L. J. 541 (1990).

(19.) Together, these four steps are known as the "Oakes test." R. v. Oakes, [1986] 1 S.C.R. 103, 138-142. Although this is the leading case on Section 1, many subsequent decisions have discussed and refined the applicable analysis.

(20.) [1992] 2 S.C.R. 679.

(21.) Id. at 702-19.

(22.) Id. at 717-19. See also Frank Iacobucci, Judicial Review by the Supreme Court of Canada Under the Canadian Charter of Rights and Freedoms: The First Ten Years, in Human Rights and Judicial Review 93, 122-23 (D.M. Beatty ed., Kluwer Academic Publ. 1994); Peter W. Hogg, Constitutional Law of Canada 919-54 (4th ed., Thomson Prof. Publ. 1997); Robert J. Sharpe & Katherine E. Swinton, The Charter of Rights and Freedoms 218-231 (Irwin Law 1998); Matthew Taylor & Mahmud Jamal, The Charter of Rights in Litigation: Direction from the Supreme Court of Canada 47-1 to 47-90 (Can. L. Book 2001).

(23.) See Schachter, [1992] 2 S.C.R. at 720.

(24.) It is important that the Court be fair and impartial by providing the accused a fair hearing. The criminal justice system is brought into disrepute when the Court condones unacceptable conduct by the authorities by allowing evidence to be presented that would deprive the accused of a fair trial, or by excluding evidence. Because the concept of disrepute is to some extent based on the views of the community at large, a reasonable person standard is applied to determine whether admission of certain evidence would bring the system into disrepute. E.g. R. v. Collins, [1987] 1 S.C.R. 265; R. v. Stillman, [1997] 1 S.C.R. 607.

(25.) [1993] 3 S.C.R. 223.

(26.) Section 8 of the Charter states: "Everyone has the right to be secure against unreasonable search or seizure."

(27.) [1993] 3 S.C.R. at 261.

Frank Iacobucci, Puisne Judge, Supreme Court of Canada. I should like to thank Angela Campbell and Katrina Gustafson, my law clerks, for their invaluable assistance in the research and preparation of these remarks.