T-I944-77; T-1945-77
Robert Cameron MacKay (Applicant)
v.
Clive L. Rippon (Respondent)
and
Brian Joseph Kevany (Applicant)
v.
Clive L. Rippon (Respondent)
Trial Division, Cattanach J.—Vancouver, May 16
and 27, 1977.
Jurisdiction Prerogative writs — Prohibition — Armed
forces personnel commit offence that is also military offence
— Offenders to be tried by court martial — Application for
prohibition — Whether incorporation of offence applicable to
all persons in Canada into military code infringes applicants'
declared right to equality before the law and the protection of
the law — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 18 Canadian Bill of Rights, S.C. 1960, c. 44, s. 1(b)
IR.S.C. 1970, Appendix 1111 — National Defence Act, R.S.C.
1970, c. N-4, s. 120.
The applicants, both members of the Canadian Armed
Forces, were respectively charged with six and four offences for
trafficking in drugs contrary to the Narcotic Control Act.
These offences were also service offences as defined by the
National Defence Act. The applicants, by originating notices of
motion brought pursuant to section 18 of the Federal Court
Act, seek to prohibit the respondent, the President of a Stand
ing Court Martial, from proceeding to trial of and adjudication
upon the alleged offences. It is argued that the provisions of the
National Defence Act providing for trial by Court Martial of
members of the armed forces for offences charges which are
also applicable to all persons in Canada infringe the applicants'
declared right to equality before the law and the protection of
the law, and therefore are inoperative.
Held, the application is dismissed. When lack of jurisdiction
is apparent on the face of the proceedings prohibition will issue
but where want of jurisdiction is not so apparent then the
granting of prohibition is discretionary. Lack of jurisdiction is
not apparent in view of the plethora of decisions following the
Drybones case. It is, nevertheless, not necessary to exercise this
discretion. The question of want of jurisdiction should have
been raised first, as a plea in bar of trial before the Standing
Court Martial. If this had been done, and if the decision of the
Standing Court Martial had been adverse to the applicants, the
question of lack of jurisdiction would have been properly raised
on appeal to the Court Martial Appeal Court and there is an
appeal from that court to the Supreme Court of Canada. The
right to apply to the Federal Court of Appeal for judicial
review with respect to the decision of a Court Martial is
specifically precluded by virtue of subsection (6). Accordingly
it seems incongruous that if there is no jurisdiction in the Court
of Appeal to review under section 28 that there should be
jurisdiction to do so in the Trial Division under section 18 of
the Federal Court Act by way of prerogative writ.
The Queen and Archer v. White [1956] S.C.R. 154; Curr
v. The Queen [1972] S.C.R. 889 and Regina v. Burnshine
[1975] 1 S.C.R. 693, followed. Rex v. Kirkup (1950) 34
Cr. App. R. 150 and Rex v. Russell (1951) 1 W.W.R.
(N.S.) 585, approved. The Queen v. Drybones [1970]
S.C.R. 282 and The Attorney General of Canada v. Lovell
[1974] S.C.R. 1349, discussed. Prata v. M.M. & I. [1972]
F.C. 1405, applied.
APPLICATION for prohibition.
COUNSEL:
David R. Wilson for applicants.
Mark M. de Weerdt, Q.C., for respondent.
SOLICITORS:
Wilson, Hitch & Easdo, , Victoria, for appli
cant Robert Cameron MacKay.
Cook, Roberts & Whittaker, Victoria, for
applicant Brian Joseph Kevany.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: The applicants herein are both
members of the 3rd Battalion, Princess Patricia's
Canadian Light Infantry and are both stationed at
the Canadian Forces Base at Esquimalt, British
Columbia.
The applicants have been respectively charged
with six and four offences alleged to have been
there committed and which offences are for traf
ficking in drugs contrary to the Narcotic Control
Act, R.S.C. 1970, c. N-1 and which offences are,
by virtue of section 120 of - the National Defence
Act, R.S.C. 1970, c. N-4 "service offences" as
defined in section 2 of that Act and as such form
part of the "Code of Service Discipline" which is
outlined in Parts IV and IX of that Act.
The applicants, by originating notices of motion
brought pursuant to section 18 of the Federal
Court Act seek to prohibit the respondent, who is
the President of a Standing Court Martial, from
proceeding to the trial of and adjudication upon
the offences alleged to have been committed by the
applicants on the ground that the provisions of the
National Defence Act and Regulations thereunder
providing for trial by Court Martial of members of
the armed services on charges which are offences
under the general criminal law of Canada appli
cable to all persons in Canada are rendered inoper
ative because the applicants are denied "the right
of the individual to equality before the law and the
protection of the law" contrary to section 1(b) of
the Canadian Bill of Rights, S.C. 1960, c. 44 [see
R.S.C. 1970, App. III].
This contention as I appreciate it, amounts
simply to this—that the applicants, in order to
enjoy equality before the law and the protection of
the law, are entitled to be tried before the civilian
courts of the land vested with criminal jurisdiction
and to be required to be tried under military law is
a deprivation of those rights.
Military law and its administration in armed
forces has subsisted since time immemorial and it
has subsisted in Canada since the first Canadian
military force was organized one year after Con
federation. However it is a fundamental constitu
tional principle that a soldier does not, by virtue of
joining the armed forces and the consequent mili
tary character he assumes, escape the jurisdiction
of the civil courts of this country. Accordingly the
ordinary law that applies to all citizens also applies
to members of the armed forces but by joining the
armed forces those members subject themselves to
additional legal liabilities, disabilities and rights,
that is to say to Canadian military law.
Without a code of service discipline the armed
forces could not discharge the function for which
they were created. In all likelihood those who join
the armed forces do so in time of war from motives
of patriotism and in time of peace against the
eventuality of war. To function efficiently as a
force there must be prompt obedience to all lawful
orders of superiors, concern, support for and con
certed action with their comrades and a reverence
for and a pride in the traditions of the service. All
members embark upon rigorous training to fit
themselves physically and mentally for the fulfil
ment of the role they have chosen and paramount
in that there must be rigid adherence to discipline.
Many offences which are punishable under civil
law take on a much more serious connotation as a
service offence and as such warrant more severe
punishment. Examples of such are manifold such
as theft from a comrade. In the service that is
more reprehensible since it detracts from the
essential esprit de corps, mutual respect and trust
in comrades and the exigencies of the barrack
room life style. Again for a citizen to strike
another a blow is assault punishable as such but
for a soldier to strike a superior officer is much
more serious detracting from discipline and in
some circumstances may amount to mutiny. The
converse, that is for an officer to strike a soldier is
also a serious service offence. In civilian life it is
the right of the citizen to refuse to work but for a
soldier to do so is mutiny, a most serious offence,
in some instances punishable by death. Similarly a
citizen may leave his employment at any time and
the only liability he may incur is for breach of
contract but for a soldier to do so is the serious
offence of absence without leave and if he does not
intend to return the offence is desertion.
This Parliament has recognized and has enact
ed, in the National Defence Act, a special code of
conduct dictated by the special conditions of ser
vice discipline and has specified therein the pun
ishable breaches of discipline.
Such a special code applicable exclusively to
service personnel is ineffective without equipping
the armed forces with its own courts for enforcing
those breaches. Certain offences are punishable by
the offender's subordinate commander, his com
manding officer or by Courts Martial. Parliament
has placed reliance for the proper execution of this
important function in the responsibility and integ
rity of those officers, who do not necessarily have
legal training, and the officers who comprise a
Court Martial who have the advantage of a judge
advocate who has legal qualifications, and who
may alone be a Standing Court Martial.
As previously indicated under section 120 of the
National Defence Act an offence that is punishable
under the Criminal Code or any other Act of the
Parliament of Canada is also a service offence and
punishable as such. Where a minimum is provided
in the legislation creating the civil offence and an
accused is convicted by a military tribunal for that
offence as a service offence then the military tri
bunal shall impose a penalty in accordance with
the enactment prescribing the minimum penalty
but the military tribunal may also impose, in
addition, a penalty lesser than the minimum penal
ty provided, in accordance with the scale of pun
ishments outlined in section 125 of the National
Defence Act. Those lesser punishments are pecu
liar to the armed forces and include dismissal from
the service, reduction in rank and forfeiture of
seniority.
The fact that a member of the armed forces has
been tried, convicted and punished by the military
courts does not oust the jurisdiction of the civil
courts but by section 61 of the National Defence
Act where a person has been sentenced by a service
tribunal and is subsequently tried by a civil court
for the same offence the civil court is obliged, in
imposing punishment, to take into account the
punishment imposed by a service tribunal for the
service offence.
At one time the converse was equally so, that is
that where a person was tried, convicted and pun
ished by the civil courts the military courts might
also try that person and if convicted the punish
ment imposed would likewise be imposed after
taking into account that imposed by the civil court.
The legislation has been changed and it is no
longer permissible for a military court to try a
member of the forces who has been tried by the
civil court for the same offence.
It follows from the differences between a civil
court and a military court that there are differ
ences in administration, procedure, the sentences
imposed, the qualifications of the judges who will
try the matter, some minor differences in evidence
respecting the admission of confessions, appeal
from sentence other than the legality thereof, and
the general law usually applicable in respect of
remission of sentence, suspension of sentence,
absolute or conditional discharge, probation,
parole, bail and the like. All of these differences,
and perhaps others, were carefully pointed out and
elaborated upon by counsel for the applicants from
which he contended that by reason of the appli
cants being obliged to stand trial by Court Martial
they have been deprived of equality before the law.
The military law, which stands side by side with
the general law of the land, is equally part of the
law of the land but it is limited to members of the
armed services and other persons who are subject
to that law.
However, the issue in these matters is whether
that segment of the law of the land is rendered
inoperative by the Canadian Bill of Rights which
received Royal Assent on August 10, 1960.
The pertinent sections of the Canadian Bill of
Rights read:
1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist without discrimination
by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the
person and enjoyment of property, and the right not to be
deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and
the protection of the law;
(c) freedom of religion;
(d) freedom of speech;
(e) freedom of assembly and association; and
(J) freedom of the press.
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared ....
At the outset it is abundantly clear that there is
no discrimination in the provisions of the National
Defence Act by reason of race, national origin,
colour, religion or sex, but that fact is not, in itself,
determinative of the issue herein because as was
stated by Laskin J. (as he then was) in Curr v.
Queen [1972] S.C.R. 889 at page 896 the exist
ence of any of the forms of prohibited discrimina
tion is not a sine qua non of the operation of
section 1 of the Canadian Bill of Rights. The
question has to be determined as to whether the
provisions of the National Defence Act prescribing
trial by military tribunals of members of the
armed forces for offences which are also made
military offences, infringe on the applicants'
declared right to equality before the law and the
protection of the law.
The provisions of the National Defence Act
providing for service offences triable by service
tribunals has subsisted in substantially and basi
cally the same form before the enactment of the
Canadian Bill of Rights and it is clear from
section 5(2) that the Canadian Bill of Rights is to
apply to all laws of Canada already in existence at
the time it came into force as well as to laws
enacted thereafter.
The law prior to the enactment of the Canadian
Bill of Rights as to the supervisory function of the
Court over military tribunals is clear.
In The Queen and Archer v. White [1956]
S.C.R. 154 it was held that certiorari would not lie
in respect of a conviction for a service offence in
the R.C.M.P. and the similarity between the
R.C.M.P. and the armed forces was emphasized.
In the view of Rand J., service offences are
matters of domestic discipline to which a member
of a force has agreed to submit by joining the force
and that the courts established by the Act to deal
with such offences were intended to be the exclu
sive means for dealing with such offences and the
superior courts should not interfere unless the
statutory powers are abused or the action taken is
not authorized.
In this connection he said at page 159:
Parliament has specified the punishable breaches of disci
pline and has equipped the Force with its own courts for
dealing with them and it needs no amplification to demonstrate
the object of that investment. Such a code is prima facie to be
looked upon as being the exclusive means by which this particu
lar purpose is to be attained. Unless, therefore, the powers
given are abused to such a degree as puts action taken beyond
the purview of the statute or unless the action is itself unau
thorized, that internal management is not to be interfered with
by any superior court in exercise of its long established supervi
sory jurisdiction over inferior tribunals.
Abbott J. had this to say at pages 168 and 169:
The Royal Canadian Mounted Police Act and the regula
tions made thereunder constitute a code of law regulating the
recruitment, administration and discipline of the Force.
Although not part of Canada's armed forces, the Royal
Canadian Mounted Police are in many respects organized on a
military basis, and the terms of recruitment and the provisions
made for uniforms, quarters, rations, discipline and pensions
closely resemble those of the Army, Navy and Air Force. The
necessity for maintaining high standards of conduct and of
discipline in the Royal Canadian Mounted Police is just as
great as it is for the armed forces, and in this respect I can see
no distinction in principle between the two bodies.
In my opinion, therefore, the authorities which hold that the
Courts have no power to interfere with matters of military
conduct and military discipline generally are applicable to
matters involving the conduct and discipline of a force such as
the Royal Canadian Mounted Police. See Rex v. Army Council
ex parte Ravenscroft [1917] 2 K.B. 504, and the authorities
discussed and approved therein.
In Rex v. Kirkup (1950) 34 Cr. App. R. 150 the
Lord Chief Justice of England (Lord Goddard)
has said that where an offence has been committed
by a serving soldier in relation to government
property at the barracks or camp or other place
where he is stationed the proper person to deal
with the matter is his commanding officer so that
the offence may be dealt with under military law.
That indicates the course that prevails in Eng-
land and was adopted and approved by the B.C.
Court of Appeal in Rex v. Russell (1951) 1
W.W.R. (N.S.) 585.
As I appreciate the significance of these two
decisions it is that offences by service personnel
should be dealt with by service tribunals as a
matter of practice and not by the civilian authori
ties and courts. I can see no logical reason for
limiting the class of service offence to an offence
with respect to government property as Lord God-
dard did.
The courts have consistently declined to inter
fere with the proceedings of military tribunals
because of serious faults in procedure by prohibi
tion which errors if committed by an inferior civil
court would undoubtedly have gone to that court's
jurisdiction.
It may be significant to note that under section
201 of the National Defence Act there is now
established a Court Martial Appeal Court to hear
and determine all appeals from the decisions of a
Court Martial. The judges of Court Martial
Appeal Court are not less than four judges of the
Federal Court of Canada and such additional
judges of a superior court of criminal jurisdiction
as are appointed by the Governor in Council. The
Court Martial Appeal Court may disallow or allow
an appeal and if the appeal is allowed set aside the
finding and direct a finding of not guilty or direct
a new trial. This Court may find that a sentence
imposed by a Court Martial is illegal but it is
precluded from imposing the legal punishment
which is done by a reference to the Minister who
imposes the legal punishment. Similarly if the
appeal is allowed on one charge and confirmed on
another the Court does not reduce the sentence but
again refers the matter to the Minister for the
imposition of a lesser sentence. That the Court
Martial Appeal Court is precluded from varying a
sentence imposed by a Court Martial is doubtless
based on the assumption that service personnel are
best qualified to determine the punishment for a
service offence and that assumption has been
accepted by Parliament.
However, I mention the Court Martial Appeal
Court because counsel for the applicants in his
submissions that the applicants were denied equal
ity before the law emphasized that the applicants,
by being remanded for trial by Court Martial, are
precluded from being tried before a judge appoint
ed pursuant to section 96 of The British North
America Act, 1867 and to point out that the judges
of the Court Martial Appeal Court are limited to
judges so appointed and to the judges of a court
established under section 101 "for the better
Administration of the Laws of Canada".
As I appreciate the submission of counsel for the
applicants it places principal reliance on the deci
sion of the Supreme Court of Canada in The
Queen v. Drybones [1970] S.C.R. 282. The
respondent, Drybones, who was an Indian, was
convicted, in the Northwest Territories, of being
intoxicated off a reserve, contrary to the Indian
Act, R.S.C. 1952, c. 149, s. 94(b). There were no
reserves in the Northwest Territories. Section
94(b) applied only to Indians. It rendered the
respondent guilty of a punishable offence by
reason of conduct which would not have been
punishable if indulged in by a person not an
Indian.
It was felt by the majority that section 94(b)
deliberately created a specific type of offence,
which could be committed only by an Indian and
accordingly an inequality before the law had been
created based upon racial grounds.
Section 94(b) was therefore held to be
inoperative.
Ritchie J. who delivered the majority reasons
was careful to point out at page 298 that while
section 94(b) was inoperative because it made an
offence punishable at law on account of race, for a
person to do something which all Canadians who
are not members of that race may do with impuni
ty, the same considerations do not by any means
apply to all provisions of the Indian Act.
The Attorney General of Canada v. Lave!!
[1974] S.C.R. 1349 concerned a female Indian
who married a non-Indian as a result of which the
Registrar struck her name from the Indian Regis
ter pursuant to section 12(1) (b) of the Indian Act.
At page 1370 Mr. Justice Ritchie distinguished
the Lavell case from the Drybones case by point
ing out that in Drybones section 94(b) could not be
enforced without denying equality of treatment
but no such inequality of treatment between
Indian men and women follows from the applica
tion of section 12(1)(b).
The ratio decidendi of the Lavell case, as I
appreciate it, is that the Canadian Bill of Rights is
not effective to amend or alter the terms of The
British North America Act, 1867 and the exclusive
legislative authority vested in Parliament to legis
late in relation to "Indians, and Lands reserved for
Indians" could not be effectively exercised without
enacting laws establishing qualifications required
to entitle persons to enjoy Indian status.
In Curr v. The Queen [1972] S.C.R. 889 at 899
Laskin J. (as he then was) considered the extent to
which the courts might, under section 1(a) of the
Canadian Bill of Rights (the due process of law
provision) have power to control substantive feder-
al legislation. On the assumption that such power
might exist, he said:
... compelling reasons ought to be advanced to justify the
Court in this case to employ a statutory (as contrasted with a
constitutional) jurisdiction to deny operative effect to a sub
stantive measure duly enacted by a Parliament constitutionally
competent to do so, and exercising its powers in accordance
with the tenets of responsible government, which underlie the
discharge of legislative authority under the British North
America Act.
In Regina v. Burnshine [1975] 1 S.C.R. 693 it
was contended that section 150 of the Prisons and
Reformatories Act, R.S.C. 1970, c. P-21, which
permits the courts in British Columbia to impose a
punishment greater than that which could other
wise be imposed by a court in other provinces
except Ontario and upon a person not within a
certain age group was inoperative because it
infringed the "equality before the law" provision
in section 1(b) of the Canadian Bill of Rights.
By a majority of six to three it was held that
section 1 of the Canadian Bill of Rights declared
the existence of six defined human rights and
freedoms all of which existed under the common
law. The Bill did not purport to define new rights
and freedoms. Section 2 protected them from
infringement by any federal statute. A concept of
"equality before the law" giving each the right to
insist that no statute could be enacted which did
not have application to all persons in all areas of
Canada would involve a substantial impairment of
the sovereignty of the Parliament of Canada in the
exercise of its legislative powers under section 91
of The British North America Act, 1867 and could
only be created by constitutional amendment or by
statute. The Canadian Bill of Rights does not do
this because it declared and continued existing
rights. New rights were not created. Its purpose
was to prevent infringement of existing rights.
There is no question that military law applicable
to members of the armed forces existed prior to
the Canadian Bill of Rights as it has existed
subsequently. The phrase "equality before the
law" is to be construed in the light of the law as it
existed at the time the Canadian Bill of Rights
was enacted.
Neither can there be any question whatsoever
that Parliament in enacting the National Defence
Act and therein providing a code of discipline
applicable exclusively to members of the armed
forces and providing a system of courts to enforce
that code was enacting legislation within the legis
lative authority bestowed on Parliament by section
91(7) of The British North America Act, 1867 the
class of subject being "Militia, Military and Naval
Service, and Defence". As I have pointed out
above for there to be an efficient defence it is
axiomatic that there must be discipline in the
forces and that that discipline must be enforceable
within the service. The legislative purpose is abun
dantly clear.
In my view what is meant by the concept of
"equality before the law" was aptly expressed by
Jackett C.J. in Prata v. M.M. & I. [1972] F.C.
1405 at pages 1414-15 when he said:
Certainly, the phrase "equality before the law" has always
suggested to me that one person must not be treated differently
from another under the law. It is a novel thought to me that it
is inconsistent with the concept of "equality before the law" for
Parliament to make a law that, for sound reasons of legislative
policy, applies to one class of persons and not to another class.
As it seems to me, it is of the essence of sound legislation that
laws be so tailored as to be applicable to such classes of persons
and in such circumstances as are best calculated to achieve the
social, economic or other national objectives that have been
adopted by Parliament. Application of a substantive rule of law
to one class of persons and not to another cannot, as it seems to
me, of itself, be objectionable discrimination from the point of
view of section 1(b) of the Canadian Bill of Rights. This is not
to say that there might not be a law that is essentially dis
criminatory by reference to some other prejudice, in the same
sense as a law can be discriminatory "by reason of race,
national origin, colour, religion or sex". Such a law, to the
extent that it was thus discriminatory, would not, I should have
thought, be a law based on acceptable legislative objectives
adopted by Parliament and would, to that extent, run foul of
section 1(b) of the Canadian Bill of Rights. In connection with
any contention that a law was thus in conflict with section 1(b),
however, I would, with respect, paraphrase what Laskin J. said
in the Curr case concerning the wording of section 1(a) and say
that the very large words of section 1(b) "signal extreme
caution to me when asked to apply them in negation of
substantive legislation validly enacted by a Parliament in which
the major role is played by elected representatives of the
people".
Bearing in mind the clear legislative purpose of
the impugned provisions of the National Defence
Act and bearing in mind the remarks of Laskin J.
in Curr v. The Queen which I have quoted above
and as paraphrased by the Chief Justice of this
Court quoted in the immediately preceding extract
I am of the opinion that it is not my function
under the Canadian Bill of Rights to prevent the
operation of a federal enactment designed to
achieve a national objective on the ground that it is
applicable to only one class of persons.
As stated by Martland J. in Regina v. Burnshine
(supra) and adapting his language to the circum
stances of the present applications, it would be
necessary for the applicants, at least, to satisfy me
that in enacting the impugned provisions of the
National Defence Act Parliament was not seeking
to achieve a valid federal objective. This was not
established, sought to be established or possible of
being established.
For the foregoing reasons the applications are
dismissed with costs to the respondent if
demanded.
In view of the conclusion I have reached it
becomes unnecessary for me to consider whether
in the circumstances of these particular applica
tions discretion should have been exercised when
other remedies were applicable.
Prohibition, like all prerogative writs, is not
granted as of right but upon judicial discretion
exercised with great caution and forbearance for
the furtherance of justice when other remedies are
not available.
When lack of jurisdiction is apparent on the face
of the proceedings prohibition will issue but where
want of jurisdiction is not so apparent then the
granting of prohibition is discretionary.
In my view such a lack of jurisdiction is not
apparent in view of the plethora of decisions fol
lowing the Drybones case.
It therefore seems to me that the question of
want of jurisdiction should have been raised first
as a plea in bar of trial before the Standing Court
Martial as the applicants were entitled to do and
did not choose to do so.
In the event of this having been done and the
decision of the Standing Court Martial had been
adverse to the applicants the question of lack of
jurisdiction would have been properly raised on
appeal to the Court Martial Appeal Court and
there is an appeal from the Court Martial Appeal
Court to the Supreme Court of Canada.
Furthermore the right to apply to the Federal
Court of Appeal for the review of a decision of a
federal tribunal under section 28 of the Federal
Court Act with respect to the decision of a Court
Martial , is specifically precluded by virtue of sub
section (6). The reason for the exclusion of Courts
Martial from the supervisory jurisdiction of the
Court of Appeal of a service offence and particu
larly of a Court Martial is obvious. There is an
appeal to the Court Martial Appeal Court.
Accordingly it seems incongruous to me that if
there is no jurisdiction in the Court of Appeal to
review under section 28 that there should be juris
diction to do so in the Trial Division under section
18 of the Federal Court Act by way of a preroga
tive writ.
However, as I have said, in view of the conclu
sion I have reached it is not incumbent upon me to
consider the exercise of my discretion to grant
prohibition and I do not do so in these instances. I
do not do so because I do not wish my remarks to
trammel any of my brother Judges who might be
obliged to consider the exact question.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.