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Canada v. Chiarelli

Publisher Canada: Supreme Court
Author Supreme Court of Canada
Publication Date 26 March 1992
Reference 21920
Related Document Canada c. Chiarelli
Cite as Canada v. Chiarelli, Canada: Supreme Court, 26 March 1992, available at: http://www.refworld.org/docid/3ae6b6e24.html [accessed 10 July 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711

File No.: 21920.

1991: October 28; 1992: March 26.

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.

on appeal from the federal court of appeal

Immigration - Deportation - Permanent resident convicted of serious offence and ordered deported - Appeal to Immigration Appeal Board on compassionate grounds barred if Security Intelligence Review Committee finding involvement with organized crime - Summary provided of Committee's in camera proceedings - Whether infringement of s. 7 right to liberty and right not to be deprived thereof except in accordance with principles of fundamental justice - Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 4(2), 19(1)(d)(ii), 27(1)(d)(i), (ii), (3), (4), 32(2), 72(1)(a), (b), 82.1(1), (2)(a), (c), (3), (4), (5), (6)(a), (b), 83(1)(a), (2).

Constitutional law - Charter of Rights - Right to liberty and right not to be deprived thereof except in accordance with principles of fundamental justice - Deportation of permanent resident convicted of serious crime - Appeal to Immigration Appeal Board on compassionate grounds barred if Security Intelligence Review Committee finding involvement with organized crime - Summary provided of Committee's in camera proceedings - Whether infringement of s. 7 right to liberty and right not to be deprived thereof except in accordance with principles of fundamental justice - Canadian Charter of Rights and Freedoms, ss. 1, 7.

Constitutional law - Charter of Rights - Cruel and unusual punishment or treatment - Deportation of permanent resident convicted of serious crime - Whether infringement of s. 12 right to freedom from cruel and unusual punishment or treatment - Canadian Charter of Rights and Freedoms, ss. 1, 12.

Constitutional law - Charter of Rights - Equality rights - Deportation of permanent resident convicted of serious crime - Appeal to Immigration Appeal Board on compassionate grounds barred if Security Intelligence Review Committee finding involvement with organized crime - Whether infringement of s. 15 right to equal benefit before and under the law - Canadian Charter of Rights and Freedoms, ss. 1, 15.

Administrative law - Natural justice - Fair hearing - Security Intelligence Review Committee considering whether permanent resident involved with organized crime - Part of Committee hearing in camera - Background material and summary of proceedings provided - Finding of involvement with organized crime barring appeal to Immigration Appeal Board on compassionate grounds.

This appeal called into question the constitutionality of the statutory scheme providing for the deportation of a permanent resident on conviction of a serious criminal offence. The main appeal concerned the removal of a ground of appeal from a deportation order and the procedure by which that removal is effected. The cross-appeal attacked the general statutory scheme.

Respondent was identified in an immigration report made by an immigration officer in January 1986 pursuant to s. 27 of the Immigration Act, 1976, as a permanent resident convicted of an offence for which a term of imprisonment of five years or more may be imposed and therefore a person described in s. 27(1)(d)(ii). An adjudicator, after an inquiry attended by appellant and his counsel, found respondent to be a person described in that section and ordered him deported. The hearing of respondent's appeal to the Immigration Appeal Board against the deportation order, brought pursuant to s. 72(1), was adjourned after the Solicitor General and the Minister of Employment and Immigration made a joint report to the Security Intelligence Review Committee pursuant to s. 82.1(2) indicating respondent to be a person reasonably likely to engage in organized crime.

The Review Committee conducted the required investigation and held a hearing. Prior to the hearing respondent was provided with a document giving background information as to the hearing and summaries of information. A summary of the evidence taken in in camera proceedings of this hearing and provided to respondent indicated that evidence was led that respondent, together with certain named individuals, was a member of a criminal organization which engaged in extortion and drug related activities and that respondent personally took part in the extortion and drug related activities of the organization. The information made available to respondent and the criminal records of respondent and his associates were before the Committee when he appeared and was asked to respond. Counsel for respondent objected to the fairness and constitutionality of the proceeding.

The Review Committee reported to the Governor in Council, pursuant to s. 82.1(6)(a), that respondent was a person there are reasonable grounds to believe will engage in organized crime as described in s. 19(1)(d)(ii). The Governor in Council adopted the conclusion of the Review Committee and directed the appellant Minister to issue a certificate under s. 83(1) with respect to respondent's appeal to the Immigration Appeal Board from the deportation order. This certificate was issued, with the result that respondent's appeal would have to be dismissed in so far as it was brought pursuant to s. 72(1)(b).

The hearing of the appeal was adjourned when respondent gave notice that he intended to raise constitutional questions before the Board and three questions were referred to the Federal Court of Appeal for determination. The court found that: (1) ss. 27(1)(d)(ii) and 32(2) of the Immigration Act, 1976, did not infringe ss. 7, 12 or 15 of the Charter; (2) ss. 82.1 and 83 did not infringe ss. 12 or 15 of the Charter but the question as to whether they contravened s. 7 was not a question that the Board could refer to the Court pursuant to s. 28(4) of the Federal Court Act; and (3) the Board would, in relying upon the certificate, violate respondent's rights under s. 7 and this violation was not justified under s. 1.

The constitutional questions stated in this Court queried whether: (1) ss. 82.1 and 83 of the Immigration Act, 1976 infringed s. 7 of the Charter, and if so, whether that infringement was justified under s. 1; (2) whether reliance upon the certificate authorized by s. 83 of the Act filed in respondent's case infringed s. 7 because the process followed by the Security Intelligence Review Committed did not meet the requirements of s. 7.

The respondent in the main appeal was granted leave to cross-appeal, and the constitutional questions stated there queried whether ss. 27(1)(d)(ii) and 32(2) of the Act infringed ss. 7, 12 and 15 of the Charter in that they required the deportation of persons convicted of an offence carrying a maximum punishment of five years or more, without reference to the circumstances of the offence or the offender, and if so, whether that infringement was justified under s. 1.

Held:

The appeal should be allowed and the cross-appeal dismissed. With respect to the main appeal, assuming without deciding that s. 7 is applicable, ss. 82.1 and 83 of the Immigration Act, 1976, do not infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms and reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, did not result in an infringement of s. 7 having regard to the process followed by the Security Intelligence Review Committee. With respect to the cross-appeal, the requirement that persons convicted of an offence carrying a maximum punishment of five years or more be deported, without reference to the circumstances of the offence or the offender, does not offend s. 15, or ss. 7 or 12 assuming without deciding that these sections applied.

The Court must look to the principles and policies underlying immigration law in determining the scope of principles of fundamental justice as they apply here. The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. The common law recognizes no such right and the Charter recognizes the distinction between citizens and non-citizens. While permanent residents are given the right to move to, take up residence in, and pursue the gaining of a livelihood in any province in s. 6(2), only citizens are accorded the right "to enter, remain in and leave Canada" in s. 6(1). Parliament therefore has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. It has done so in the Immigration Act.

A permanent resident has a right to remain in Canada only if he or she has not been convicted of a more serious offence - one for which a term of imprisonment of five years or more may be imposed. This condition represents a legitimate, non-arbitrary choice by Parliament of a situation in which it is not in the public interest to allow a non-citizen to remain in the country. All persons falling within the class of permanent residents described in s. 27(1)(d)(ii) have deliberately violated an essential condition under which they were permitted to remain in Canada. Fundamental justice is not breached by deportation: it is the only way to give practical effect to the termination of a permanent resident's right to remain in Canada. Compliance with fundamental justice does not require that other aggravating or mitigating circumstances be considered.

The deportation authorized by ss. 27(1)(d)(ii) and 32(2) was not cruel and unusual. The standards of decency are not outraged by the deportation of a permanent resident who has deliberately violated an essential condition of his or her being permitted to remain in Canada by committing a serious criminal offence. Rather, those standards would be outraged if individuals granted conditional entry into Canada were permitted to violate those conditions deliberately and without consequence.

A deportation scheme applicable to permanent residents, but not to citizens, does not infringe s. 15 of the Charter. Section 6 of the Charter specifically provides for differential treatment of citizens and permanent residents in this regard. While permanent residents are given various mobility rights in s. 6(2), only citizens are accorded the right to enter, remain in and leave Canada in s. 6(1).

The effect of the certificate under s. 83 was to direct the Immigration Appeal Board to dismiss any appeal made on compassionate grounds pursuant to s. 72(1)(b) and so limit the appeal to questions of fact or law or mixed fact and law. Neither the substantive provisions nor the procedure followed by the Review Committee resulted in a s. 7 violation.

The impugned legislation is consistent with s. 7 of the Charter. Section 7 does not mandate the provision of a compassionate appeal from a decision which comports with principles of fundamental justice. The right to appeal from the adjudicator's decision, first to the Board on questions of fact or law or mixed fact and law, and then to the Federal Court of Appeal with leave on questions of law, offers ample protection to an individual from an erroneous decision by the adjudicator and clearly satisfies the principles of fundamental justice. The absence of an appeal on wider grounds than those on which the initial decision was based does not violate s. 7. There has never been a universally available right of appeal from a deportation order on "all the circumstances of the case".

The scope of principles of fundamental justice will vary with the context and the interests at stake. Similarly, the rules of natural justice and the concept of procedural fairness, which may inform principles of fundamental justice in a particular context, are not fixed standards. In assessing whether a procedure accords with fundamental justice, it may be necessary to balance competing interests of the state and the individual.

Assuming that the proceedings before the Review Committee were subject to the principles of fundamental justice, those principles were observed, having regard to the information disclosed to respondent, the procedural opportunities available to him, and the competing interests at play in this area.

In the context of hearings conducted by the Review Committee pursuant to a joint report, an individual has an interest in a fair procedure since the Committee's investigation may result in its recommending to the Governor in Council that a s. 83 certificate issue, removing an appeal on compassionate grounds. However, the state also has a considerable interest in effectively conducting national security and criminal intelligence investigations and in protecting police sources. The Canadian Security Intelligence Service Act and the Security Intelligence Review Committee Rules recognize the competing individual and state interests and attempt to find a reasonable balance between them. The Rules expressly direct that the Committee's discretion be exercised with regard to this balancing of interests.

The various documents given respondent provided sufficient information to know the substance of the allegations against him, and to be able to respond. It was not necessary, in order to comply with fundamental justice in this context, that respondent also be given details of the criminal intelligence investigation techniques or police sources used to acquire that information.

Cases Cited

Referred to: Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; R. v. Governor of Pentonville Prison, [1973] 2 All E.R. 741; Prata v. Minister of Manpower & Immigration, [1976] 1 S.C.R. 376; Reference as to the effect of the Exercise of the Royal Prerogative of Mercy upon Deportation Proceedings, [1933] S.C.R. 269; Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Lyons, [1987] 2 S.C.R. 309; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Secretary of State for the Home Department, ex parte Hosenball, [1977] 3 All E.R. 452; R. v. Scott, [1990] 3 S.C.R. 979; Ross v. Kent Inst. (1987), 57 C.R. (3d) 79.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 6(1), (2)(a), (b), 7, 12, 15(1).

Canadian Security Intelligence Service Act, S.C. 1984, c. 21, ss. 43, 44, 48(2), 48. to 51.

Criminal Code, R.S.C. 1970, c. C-34, ss. 331(1)(a).

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(4).

Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 4(2), 19(1)(d)(ii), 27(1)(d)(i), (ii), (3), (4), 32(2), 72(1)(a), (b) [am. S.C. 1984, c. 21, s. 81], 82.1(1), (2)(a), (c), (3), (4), (5), (6)(a), (b) [am. S.C. 1984, c. 21, s. 84], 83(1)(a), (2) [am. S.C. 1984, c. 21, s. 84].

Narcotic Control Act, R.S.C. 1970, c. N-1, s. 4(2).

 Security Intelligence Review Committee Rules, ss. 48(1), (2), (3), (4), 45 to 51.

Authors Cited

Canada. Department of Employment and Immigration. White Paper on Immigration. Ottawa: Queen's Printer, 1966.

Concise Oxford Dictionary. Oxford: Oxford University Press, 1990.

Petit Robert 1. Par Paul Robert. Paris: Le Robert, 1990.

APPEAL

from a judgment of the Federal Court of Appeal, [1990] 2 F.C. 299, 67 D.L.R. (4th) 697, 107 N.R. 107, 1 C.R.R. (2d) 230, 10 Imm. L.R. (2d) 137, 42 Admin. L.R. 189. Appeal allowed and cross-appeal dismissed. With respect to the main appeal, assuming without deciding that s. 7 is applicable, ss. 82.1 and 83 of the Immigration Act, 1976, do not infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms and reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, did not result in an infringement of s. 7 having regard to the process followed by the Security Intelligence Review Committee. With respect to the cross-appeal, the requirement that persons convicted of an offence carrying a maximum punishment of five years or more be deported, without reference to the circumstances of the offence or the offender, does not offend s. 15, or ss. 7 or 12 assuming without deciding that these sections applied.

David Sgayias, Q.C., and Gerry N. Sparrow, for the appellant.

Irwin Koziebrocki and David Schermbrucker, for the respondent.

Simon Noël and Sylvie Roussel, for the intervener.

The judgment of the Court was delivered by //Sopinka J.//

Sopinka J. - This appeal calls into question the constitutionality of the statutory scheme pursuant to which a permanent resident can be deported from Canada if, upon the report of an immigration officer and following an inquiry, he is found to have been convicted of an offence for which a term of imprisonment of five years or more may be imposed. The scheme is attacked on the grounds that it violates ss. 7 and 12 of the Canadian Charter of Rights and Freedoms. A further attack, based on s. 7 of the Charter, is brought against the interaction of that scheme with investigations conducted by the Security Intelligence Review Committee into the activities of persons reasonably believed to be involved in certain types of criminal or subversive activity.

I.          The Legislative Scheme

This appeal requires the Court to consider the operation of a comprehensive legislative scheme which governs the deportation of permanent residents who have been convicted of certain criminal offences. I find it convenient to reproduce the relevant provisions at the outset. The provisions are those that were in force when these proceedings were commenced by the inquiry before the adjudicator. Since that time, several of the section numbers have been amended and there have been other minor amendments such as the consolidation of two subsections into one. However the substance of the provisions relevant to this appeal remains the same. (See Immigration Act, R.S.C., 1985, c. I-2).

Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by the Canadian Security Intelligence Service Act, S.C. 1984, c. 21

4. . . .

(2)   Subject to any other Act of Parliament, a Canadian citizen, a permanent resident and a Convention refugee while lawfully in Canada have a right to remain in Canada except where

(a)   in the case of a permanent resident, it is established that that person is a person described in subsection 27(1);

19. (1)     No person shall be granted admission if he is a member of any of the following classes:

. . .

(d)   persons who there are reasonable grounds to believe will

. . .

(ii)   engage in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence that may be punishable under any Act of Parliament by way of indictment;

27. (1)     Where an immigration officer or peace officer has in his possession information indicating that a permanent resident is a person who

. . .

(d)   has been convicted of an offence under any Act of Parliament for which a term of imprisonment of

(i)    more than six months has been imposed, or

(ii)   five years or more may be imposed,

 . . . he shall forward a written report to the Deputy Minister setting out the details of such information.

(3)   Subject to any order or direction of the Minister, the Deputy Minister shall, on receiving a report pursuant to subsection (1) or (2), and where he considers that an inquiry is warranted, forward a copy of that report and a direction that an inquiry be held to a senior immigration officer.

(4)   Where a senior immigration officer receives a copy of a report and a direction pursuant to subsection (3), he shall, as soon as reasonably practicable, cause an inquiry to be held concerning the person with respect to whom the report was made.

32. . . .

(2)   Where an adjudicator decides that a person who is the subject of an inquiry is a permanent resident described in subsection 27(1), he shall, subject to subsections 45(1) and 47(3) [convention refugee], make a deportation order against that person.

72. (1)     Subject to subsection (3), where a removal order is made against a permanent resident . . . that person may appeal to the Board on either or both of the following grounds, namely,

(a)   on any ground of appeal that involves a question of law or fact, or mixed law and fact; and

(b)   on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.

82.1 (1)  In this section and section 83, "Review Committee" has the meaning assigned to that expression by the Canadian Security Intelligence Service Act.

(2)   Where the Minister and the Solicitor General are of the opinion, based on security or criminal intelligence reports received and considered by them, that

(a)   a person who has made . . . an appeal pursuant to paragraph 72(1)(b) . . .

. . . is a person described,

(c)   in the case of a permanent resident, in subparagraph 19(1)(d)(ii) or paragraph 19(1)(e) or (g) or 27(1)(c), . . they may make a report to the Review Committee and shall, within ten days after the report is made, cause a notice to be sent informing the person who made the appeal of the report and stating that following an investigation in relation thereto, the appeal may be dismissed.

(3)   Where a report is made to the Review Committee pursuant to subsection (2), the Review Committee shall investigate the grounds on which it is based and for that purpose subsections 39(2) and (3) and sections 43, 44 and 48 to 51 of the Canadian Security Intelligence Service Act apply, with such modifications as the circumstances require, to the investigation as if the investigation were conducted in relation to a complaint made pursuant to section 42 of the Act, except that

(a)   a reference in any of those provisions, to "deputy head" shall be read as a reference to the Minister and the Solicitor General; and

(b)   paragraph 50(a) of that Act does not apply with respect to the person concerning whom the report is made.

(4)   The Review Committee shall, as soon as practicable after a report is made to it pursuant to subsection (2), send to the person who made the appeal referred to in that subsection a statement summarizing such information available to it as will enable the person to be as fully informed as possible of the circumstances giving rise to the report.

(5)   Notwithstanding anything in this Act, where a report concerning any person is made to the Review Committee pursuant to subsection (2), the hearing of an appeal concerning the person ... pursuant to paragraph 72(1)(b) . . . shall be adjourned until the Review Committee has, pursuant to subsection (6), made a report to the Governor in Council with respect to that person and the Governor in Council has made a decision in relation thereto.

(6)   The Review Committee shall,

(a)   on completion of an investigation in relation to a report made to it pursuant to subsection (2), make a report to the Governor in Council containing its conclusion whether or not a certificate should be issued under subsection 83(1) and the grounds on which that conclusion is based; and

(b)   at the same time as or after a report is made pursuant to paragraph (a), provide the person who made the appeal referred to in subsection (2) with a report containing the conclusion referred to in that paragraph.

83. (1)     Where, after considering a report made by the Review Committee referred to in paragraph 82.1(6)(a), the Governor in Council is satisfied that a person referred to in paragraph 82.1(2)(a) . . . is a person described

(a)   in the case of a permanent resident, in subparagraph 19(1)(d)(ii) or paragraph 19(1)(e) or (g) or 27(1)(c), . . the Governor in Council may direct the Minister to issue a certificate to that effect.

(2)   Notwithstanding anything in this Act, the Board shall dismiss any appeal made . . . pursuant to paragraph 72(1)(b) . . . if a certificate referred to in subsection (1), signed by the Minister, is filed with the Board.

Canadian Security Intelligence Service Act, S.C. 1984, c. 21 (now R.S.C., 1985, c. C-23)

48. . . .

(2)   In the course of an investigation of a complaint under this Part by the Review Committee, the complainant, deputy head concerned and the Director shall be given an opportunity to make representations to the Review Committee, to present evidence and to be heard personally or by counsel, but no one is entitled as of right to be present during, to have access to or to comment on representations made to the Review Committee by any other person.

Canadian Charter of Rights and Freedoms

6. (1)       Every citizen of Canada has the right to enter, remain in and leave Canada.

(2)   Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

(a)   to move to and take up residence in any province; and

(b)   to pursue the gaining of a livelihood in any province.

7.     Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

12.  Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

15. (1)     Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

II.         Facts and Proceedings

The respondent, Joseph (Giuseppe) Chiarelli, was born in Italy in 1960. He received landed immigrant status upon his arrival in Canada in 1975. On November 1, 1984, the respondent pleaded guilty to unlawfully uttering threats to cause injury, contrary to s. 331(1)(a) of the Criminal Code, R.S.C. 1970, c. C-34, as amended, an offence punishable by a maximum of ten years' imprisonment. He received a suspended sentence.  On November 5, 1984, he pleaded guilty to possession of a narcotic for the purpose of trafficking, contrary to s. 4(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1, as amended, which carries a maximum sentence of life imprisonment. He was sentenced to six months' imprisonment. In January of 1986, Immigration Officer A. Zografos signed a report pursuant to s. 27 of the Immigration Act, 1976 ("the Act"), identifying the respondent as a permanent resident described in s. 27(1)(d)(ii), that is, a permanent resident who has been convicted of an offence for which a term of imprisonment of five years or more may be imposed.

As a result of this report, an inquiry was directed pursuant to s. 27(3) of the Act. The respondent was notified of this inquiry and attended. At the conclusion of the inquiry on May 7, 1986, Adjudicator J. E. McNamara determined, relying on the Narcotic Control Act conviction, that the respondent was a person described in s. 27(1)(d)(ii). He therefore made a deportation order against the respondent pursuant to s. 32(2). The hearing of the respondent's appeal to the Immigration Appeal Board against the deportation order, brought pursuant to s. 72(1) (now R.S.C., 1985, c. I-2, s. 70(1)), was adjourned after the Solicitor General and the Minister of Employment and Immigration made a joint report to the Security Intelligence Review Committee (the "Review Committee") pursuant to s. 82.1(2) (now s. 81(2)). The report indicated that in the opinion of the ministers, the respondent was a person described in s. 19(1)(d)(ii), that is, a person who there are reasonable grounds to believe will engage in activity that is part of a pattern of organized criminal activity.

Upon receipt of the joint report, the Review Committee conducted the required investigation and a hearing was held on September 2 and 3, 1987. Prior to this hearing the respondent was provided with a document entitled "Statement of Circumstances giving rise to the making of a Report by the Solicitor General of Canada and the Minister of Employment and Immigration to the Security Intelligence Review Committee", as well as two summaries of information. The first was a document entitled "Chronology of Information and Occurrences Relating to Giuseppe Chiarelli" and consisted of an extensive summary of surveillance of the respondent. The second document was entitled "Summary of Interpretation of Intercepted Private Communications relating to the murder of Domenic Racco". The first day of the hearing was held in camera and a summary of the evidence provided to the respondent. This summary indicated that evidence was led that the respondent, together with certain named individuals, was a member of a criminal organization which engaged in extortion and drug related activities, and further that the respondent personally took part in the extortion and drug related activities of the organization.

At the second day of the hearing, the respondent attended with counsel. The "Statement of Circumstances", the "Chronology of Information" and the "Summary of Interpretation of Intercepted Private Communications" were placed before the Review Committee, as were the criminal records of the respondent and his alleged associates. The respondent was then invited to respond. Counsel for the respondent objected to the fairness and constitutionality of the proceeding. He submitted no evidence at the hearing and chose not to cross-examine the two RCMP witnesses who had testified on the first day. He did, however, later make written submissions to the Committee.

After consideration of the matter, the Review Committee reported to the Governor in Council, pursuant to s. 82.1(6)(a) (now s. 81(7)), that the respondent was a person described in s. 19(1)(d)(ii). The Governor in Council adopted the conclusion of the Review Committee and directed the appellant Minister to issue a certificate under s. 83(1) (now s. 82(1)) with respect to the respondent's appeal to the Immigration Appeal Board from the deportation order. This certificate was issued, with the result that the respondent's appeal would have to be dismissed in so far as it was brought pursuant to s. 72(1)(b) (now s. 70(1)(b)).

The hearing of the appeal was scheduled to resume in February of 1988. The respondent, however, gave notice that he intended to raise constitutional questions before the Board and the hearing was adjourned. On February 1, 1989, the Board, with the agreement of the parties, referred three questions to the Federal Court of Appeal for determination pursuant to s. 28(4) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10:

1. (a)       do paragraph 27(1)(d)(ii) and subsection 32(2) of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now paragraph 27(1)(d)(ii) and subsection 32(2) of the Immigration Act, R.S.C. 1985, c. I-2) infringe or deny the rights guaranteed by sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms in that they require the deportation of persons convicted of an offence carrying a maximum punishment of five years or more, without reference to the circumstances of the offence or the offender;

(b)   if the paragraph and subsection referred to above do infringe or deny the rights guaranteed by sections 7, 12 and 15 of the Charter, are they justified by section 1 of the Charter?

2. (a)       do sections 82.1 and 83 of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now sections 81 and 82 of the Immigration Act, R.S.C. 1985, c. I-2) infringe or deny the rights guaranteed by sections 7, 12 and 15 of the Charter as those provisions:

(i)    deprive individuals of the right to life, liberty and security of the person in violation of the principles of fundamental justice, and/or;

(ii)   subject individuals to cruel and unusual punishment? and/or;

(iii)  deny individuals equality before and under the law?

(b)   if the sections referred to above do infringe or deny the rights guaranteed by sections 7, 12 and 15 of the Charter, are they justified by section 1 of the Charter?

3. (a)       does reliance upon the Certificate authorized by section 83 of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now section 82 of the Immigration Act, R.S.C. 1985, c. I-2) filed in Mr. Chiarelli's case result in an infringement of his rights pursuant to section 7 of the Charter, because the process followed by the Security Intelligence Review Committee did not meet the requirements of section 7?

(b)   if reliance upon the Certificate does infringe or deny the right guaranteed by section 7 of the Charter, is it justified by section 1 of the Charter?

III.       Judgment of the Federal Court of Appeal, [1990] 2 F.C. 299

Pratte J.A. (dissenting on the answer to reference question 3(b))

Pratte J.A. held that the combination of ss. 27(1)(d)(ii) and 32(2) of the Act does not violate s. 12 of the Charter because they do not impose a punishment. Section 32(2) is the corollary of the limits imposed by s. 4 of the Act on the right of a permanent resident to come to and remain in Canada. Similarly he held that they do not violate s. 7 since there is no injustice in requiring the deportation of a person who has lost the right to remain in Canada. Finally there is no violation of s. 15. Section 6 of the Charter specifically provides for different treatment of citizens and permanent residents regarding the right to remain in Canada. Nor does a distinction between permanent residents who have been convicted of an offence described in s. 27(1)(d)(ii) and other permanent residents amount to discrimination within the meaning of s. 15.

Pratte J.A. refused to answer the second question of the reference in so far as it related to s. 7 of the Charter as it had not been determined by the Immigration Appeal Board that the respondent had not been given a full opportunity to refute the allegations against him. He held that there was no violation of s. 12 or s. 15.

With respect to the third question, he observed that the filing of the s. 83 certificate had the effect of depriving the Immigration Appeal Board of its power to allow the respondent's appeal on compassionate grounds. The resulting deportation necessarily implied an interference with the liberty of the person. In concluding that the respondent's rights under s. 7 of the Charter had been infringed, Pratte J.A. observed at p. 318 that "it is a requirement of fundamental justice that no decision be made determining the rights of a person without giving that person a meaningful opportunity to be heard". In order to have a meaningful opportunity to be heard, the respondent had to know the information before the Review Committee in order to be able to contradict it. The respondent had not been provided this opportunity and therefore the procedure followed by the Review Committee did not meet the requirements of fundamental justice.

Pratte J.A. concluded, however, that this limitation could be justified under s. 1 of the Charter. Section 48(2) of the Canadian Security Intelligence Service Act ("CSIS Act") which denies a party the right to be informed of the evidence led by the other party imposes a reasonable limit in light of the need to protect the secrecy of police investigations of organized criminal activities. This was particularly the case in view of the fact that the Committee's investigation was not to determine the guilt of the respondent, but only whether he deserved to benefit from an appeal on purely compassionate grounds.

 Stone J.A. (Urie J.A. concurring)

The majority agreed with Pratte J.A.'s reasons except that in their view, the violation of s. 7 could not be justified under s. 1 of the Charter. Although the interest of the state in protecting confidential police sources and techniques is of sufficient importance to warrant overriding constitutionally protected rights and the withholding of information is rationally connected to that objective, the majority concluded that the procedure enacted by s. 82.1(3) (now s. 81(4)) failed the remaining requirements of the proportionality test. Rather than balancing the state's interest in protecting confidential sources and techniques with the individual's interest in fundamental justice, it was the majority's view that the provision opts for a "complete obliteration" of the individual's right in favour of the state's interest.

The Federal Court of Appeal answered the questions put to it as follows:

1.     Subparagraph 27(1)(d)(ii) and subsection 32(2) of the Immigration Act, 1976 do not infringe section 7, 12 or 15 of the Canadian Charter of Rights and Freedoms.

2.     Sections 82.1 and 83 of the Immigration Act, 1976 do not infringe section 12 or 15 of the Canadian Charter of Rights and Freedoms.

The question whether those sections contravene section 7 of the Charter is not a question that the Board may refer to the Court pursuant to subsection 28(4) of the Federal Court Act.

3. (a)       The Board would, in relying upon the certificate issued pursuant to section 83 in respect of Mr. Chiarelli, violate Mr. Chiarelli's rights under section 7 of the Charter.

(b)   The violation of section 7 is not justified by section 1 of the Charter.

 IV.      Issues

The appellant was granted leave to appeal and the following constitutional questions were stated by Gonthier J.:

1. (a)       Do sections 82.1 and 83 of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now ss. 81 and 82 of the Immigration Act, R.S.C., 1985, c. I-2) infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms?

(b)   If the sections referred to above do infringe or deny the rights guaranteed by s. 7 of the Charter, are they justified by s. 1 of the Charter?

2. (a)       Does reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now s. 82 of the Immigration Act, R.S.C., 1985, c. I-2) filed in the respondent's case result in an infringement of his rights pursuant to s. 7 of the Charter, because the process followed by the Security Intelligence Review Committee did not meet the requirements of s. 7?

(b)   If reliance upon the certificate does infringe or deny the rights guaranteed by s. 7 of the Charter, is it justified by s. 1 of the Charter?

The respondent in the main appeal was granted leave to cross-appeal, and the following constitutional questions were stated by Gonthier J.:

1. (a)       Do s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, R.S.C., 1985, c. I-2) infringe or deny the rights guaranteed by ss. 7, 12 and 15 of the Canadian Charter of Rights and Freedoms in that they require the deportation of persons convicted of an offence carrying a maximum punishment of five years or more, without reference to the circumstances of the offence or the offender?

(b)   If the paragraph and subsection referred to above do infringe or deny the rights guaranteed by ss. 7, 12 and 15 of the Charter, are they justified by s. 1 of the Charter?

The answers to these questions will dispose of the questions submitted to the Court of Appeal pursuant to s. 28(4) of the Federal Court Act with this exception. Question 2 at the Federal Court of Appeal corresponds to Question 1 in the main appeal but referred to s. 12 and s. 15 in addition to s. 7 of the Charter. Sections 12 and 15 were neither argued by the parties in this Court nor referred to in the constitutional questions. In the circumstances, I will not deal with them.

V.        Analysis

The cross-appeal attacks the general scheme providing for deportation of permanent residents who have been convicted of certain criminal offences. The main appeal concerns the removal of a ground of appeal from a deportation order and the procedure by which that removal is effected. I will address the cross-appeal first. Throughout these reasons I will refer to Chiarelli as "the respondent" and the Minister as "the appellant", although their positions are actually reversed on the cross-appeal.

1.         Do s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, 1976 violate the Charter?

Section 27(1) requires an immigration officer in possession of information that a permanent resident falls into one of its enumerated classes to forward a report setting out the details of that information to the Deputy Minister. The relevant class in this case is that set out in s. 27(1)(d)(ii), a person who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of five years or more may be imposed. An inquiry is then held by an adjudicator in cases where the Deputy Minister considers that one is warranted (s. 27(3)). Section 32(2) provides that where an adjudicator decides that a person who is the subject of an inquiry does fall within one of the classes in s. 27(1), the adjudicator shall, except in the case of a convention refugee, make a deportation order against that person.

(a)       Section 7

The essence of the respondent's position is that ss. 27(1)(d)(ii) and 32(2) are contrary to principles of fundamental justice because they are mandatory and require that deportation be ordered without regard to the circumstances of the offence or the offender. The appellant correctly points out that the threshold question is whether deportation per se engages s. 7, that is, whether it amounts to a deprivation of life, liberty or security of the person. The Federal Court of Appeal in Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35, held that deportation for serious offences is not to be conceptualized as a deprivation of liberty. I do not find it necessary to answer this question, however, since I am of the view that there is no breach of fundamental justice.

The principles of fundamental justice are to be found in the basic tenets of our legal system. Lamer J. (as he then was) stated in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 513:

Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system, as it evolves.

 He recognized, at p. 513, that "principles of fundamental justice" could not be defined in the abstract but would have to be interpreted in the context of alleged violations:

. . . those words cannot be given any exhaustive content or simple enumerative definition, but will take on concrete meaning as the courts address alleged violations of s. 7.

The importance of a contextual approach to the interpretation of s. 7 was emphasized by Cory J. in R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, at p. 226:

It is now clear that the Charter is to be interpreted in light of the context in which the claim arises. Context is relevant both with respect to the delineation of the meaning and scope of Charter rights, as well as to the determination of the balance to be struck between individual rights and the interests of society.

He noted that under a contextual approach, constitutional standards developed in the criminal context could not automatically be applied to regulatory offences. Similarly in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, McLachlin J. adopted at p. 848 a contextual approach which "takes into account the nature of the decision to be made". She concluded that in defining the fundamental justice relevant to extradition, the Court must draw upon the principles and policies underlying extradition law and procedure.

Thus in determining the scope of principles of fundamental justice as they apply to this case, the Court must look to the principles and policies underlying immigration law. The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. At common law an alien has no right to enter or remain in the country: R. v. Governor of Pentonville Prison, [1973] 2 All E.R. 741; Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376.

La Forest J. recently reiterated this principle in Kindler v. Canada (Minister of Justice), supra, at p. 834:

The Government has the right and duty to keep out and to expel aliens from this country if it considers it advisable to do so. This right, of course, exists independently of extradition. If an alien known to have a serious criminal record attempted to enter into Canada, he could be refused admission. And by the same token, he could be deported once he entered Canada.

. . .

If it were otherwise, Canada could become a haven for criminals and others whom we legitimately do not wish to have among us.

The distinction between citizens and non-citizens is recognized in the Charter. While permanent residents are given the right to move to, take up residence in, and pursue the gaining of a livelihood in any province in s. 6(2), only citizens are accorded the right "to enter, remain in and leave Canada" in s. 6(1).

Thus Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. It has done so in the Immigration Act. Section 5 of the Act provides that no person other than a citizen, permanent resident, Convention refugee or Indian registered under the Indian Act has a right to come to or remain in Canada. The qualified nature of the rights of non-citizens to enter and remain in Canada is made clear by s. 4 of the Act. Section 4(2) provides that permanent residents have a right to remain in Canada except where they fall within one of the classes in s. 27(1). One of the conditions Parliament has imposed on a permanent resident's right to remain in Canada is that he or she not be convicted of an offence for which a term of imprisonment of five years or more may be imposed. This condition represents a legitimate, non-arbitrary choice by Parliament of a situation in which it is not in the public interest to allow a non-citizen to remain in the country. The requirement that the offence be subject to a term of imprisonment of five years indicates Parliament's intention to limit this condition to more serious types of offences. It is true that the personal circumstances of individuals who breach this condition may vary widely. The offences which are referred to in s. 27(1)(d)(ii) also vary in gravity, as may the factual circumstances surrounding the commission of a particular offence. However there is one element common to all persons who fall within the class of permanent residents described in s. 27(1)(d)(ii). They have all deliberately violated an essential condition under which they were permitted to remain in Canada. In such a situation, there is no breach of fundamental justice in giving practical effect to the termination of their right to remain in Canada. In the case of a permanent resident, deportation is the only way in which to accomplish this. There is nothing inherently unjust about a mandatory order. The fact of a deliberate violation of the condition imposed by s. 27(1)(d)(ii) is sufficient to justify a deportation order. It is not necessary, in order to comply with fundamental justice, to look beyond this fact to other aggravating or mitigating circumstances.

 (b)      Section 12

The respondent alleges a violation of s. 12 for essentially the same reasons that he claims s. 7 is infringed. He submits that the combination of s. 27(1)(d)(ii) and 32(2) constitutes cruel and unusual punishment because they require that deportation be ordered without regard to the circumstances of the offence or the offender. He submits that in the case at bar, the deportation order is grossly disproportionate to all the circumstances and further, that the legislation in general is grossly disproportionate, having regard to the many "relatively less serious offences" which are covered by s. 27(1)(d)(ii).

I agree with Pratte J.A. that deportation is not imposed as a punishment. In Reference as to the effect of the Exercise of the Royal Prerogative of Mercy Upon Deportation Proceedings, [1933] S.C.R. 269, Duff C.J. observed at p. 278 that deportation provisions were "not concerned with the penal consequences of the acts of individuals". See also Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594 (C.A.), at pp. 606-07, and Hoang v. Canada (Minister of Employment and Immigration), supra. Deportation may, however, come within the scope of a "treatment" in s. 12. The Concise Oxford Dictionary (1990) defines treatment as "a process or manner of behaving towards or dealing with a person or thing ...." It is unnecessary, for the purposes of this appeal, to decide this point since I am of the view that the deportation authorized by ss. 27(1)(d)(ii) and 32(2) is not cruel and unusual.

The general standard for determining an infringement of s. 12 was set out by Lamer J., as he then was, in the following passage in R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1072:

The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 668, "whether the punishment prescribed is so excessive as to outrage standards of decency". In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate.

The deportation of a permanent resident who has deliberately violated an essential condition of his or her being permitted to remain in Canada by committing a criminal offence punishable by imprisonment of five years or more, cannot be said to outrage standards of decency. On the contrary it would tend to outrage such standards if individuals granted conditional entry into Canada were permitted, without consequence, to violate those conditions deliberately.

(c)       Section 15

Although the constitutional question stated by Gonthier J. raises the issue of whether ss. 27(1)(d)(ii) and 32(2) violate s. 15 of the Charter, the respondent made no submissions on this issue. I agree, for the reasons given by Pratte J.A. in the Federal Court of Appeal, that there is no violation of s. 15. As I have already observed, s. 6 of the Charter specifically provides for differential treatment of citizens and permanent residents in this regard. While permanent residents are given various mobility rights in s. 6(2), only citizens are accorded the right to enter, remain in and leave Canada in s. 6(1). There is therefore no discrimination contrary to s. 15 in a deportation scheme that applies to permanent residents, but not to citizens.

2.         Do ss. 82.1 and 83 of the Immigration Act, 1976 or Reliance on the Certificate Authorized by s. 83, infringe s. 7 of the Charter?

Two separate sets of questions were stated on the main appeal - firstly, whether ss. 82.1 and 83 themselves infringe s. 7 and if so whether they can be saved under s. 1, and secondly whether reliance on the certificate authorized by s. 83 infringes s. 7 in a manner that cannot be saved under s. 1. I agree with the submissions of both parties that the question of whether ss. 82.1 and 83 violate s. 7 was properly before the Federal Court of Appeal and should have been answered. It can therefore be addressed by this Court on appeal from the decision of the Federal Court of Appeal.

The section 7 violation raised in both questions involves the operation of a certificate issued under s. 83 of the Act to deprive the respondent of an appeal under s. 72(1)(b) of the Act. These questions raise two issues - first, whether the substantive provisions violate s. 7 and secondly, whether the procedure followed by the Review Committee results in a s. 7 violation. I will deal with these issues in that order.

The practical significance of ss. 82.1 and 83 of the Act stems from their interaction with the rights of appeal from a s. 32(2) deportation order provided by s. 72(1) of the Act. Section 72(1)(a) provides for a true appeal, based on any question of law or fact or mixed law and fact. Under s. 72(1)(b), Parliament has granted a further appeal on the ground that "having regard to all the circumstances of the case, the person should not be removed from Canada". This latter ground of appeal grants the Immigration Appeal Board discretion to quash a deportation order notwithstanding the fact that the individual falls within one of the categories in s. 27(1) such that the deportation order was properly made under s. 32(2). It thus allows for clemency from deportation on compassionate grounds.

Section 82.1 sets out the conditions which may give rise to an investigation by the Review Committee and the procedure to be followed in such an investigation. In general terms the Solicitor General and the Minister of Employment and Immigration may make a report to the Review Committee in respect of a permanent resident who has launched an appeal pursuant to s. 72(1)(b) where they are of the opinion, based on security or criminal intelligence reports, that that person is likely to engage in organized crime, espionage, acts of violence that might endanger the lives or safety of persons in Canada, or subversion by force of any government. In the case of the respondent the joint report was based on s. 19(1)(d)(ii):

19. (1)     . . .

(d)   persons who there are reasonable grounds to believe will

. . .

(ii)   engage in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence that may be punishable under any Act of Parliament by way of indictment;

When the Review Committee receives such a joint report, it must conduct an investigation into the grounds on which it is based and report to the Governor in Council. Where, after considering the report of the Review Committee, the Governor in Council is satisfied that the person does fall within one of the categories in s. 82.1(2) (the categories pursuant to which the Ministers can make a joint report to the Review Committee), he or she may direct the issuance of a certificate under s. 83. The effect of this certificate is to direct the Immigration Appeal Board to dismiss any appeal made pursuant to s. 72(1)(b). In other words, the individual's appeal will be limited to questions of fact or law or mixed fact or law.

Substantive Ground

The respondent submits that the impugned legislation is inconsistent with s. 7 of the Charter because it creates a process whereby he is deprived, contrary to the principles of fundamental justice, of his right to appeal against deportation on the ground set out in s. 72(1)(b). The necessary implication of this position is that it is a principle of fundamental justice that a permanent resident who is the subject of deportation proceedings be afforded an appeal on all of the circumstances of the case. Otherwise it cannot be a violation of principles of fundamental justice for Parliament to limit the availability of such an appeal. In my view s. 7 does not mandate the provision of a compassionate appeal from a decision which, as I have already concluded, comports with principles of fundamental justice.

Before a deportation order can be issued against a permanent resident, an inquiry must be conducted by an adjudicator to determine whether the permanent resident does fall into one of the classes in s. 27(1). Section 72(1)(a) provides for an appeal from such a deportation order on any question of law or fact or mixed law and fact. The decision of the Board is subject to appeal to the Federal Court of Appeal on a question of law if leave is granted by that Court (s. 84 of the Act (now s. 83)). These rights of appeal offer ample protection to an individual from an erroneous decision by the adjudicator. The question is whether principles of fundamental justice require more than this. In order to answer this question it is necessary to consider the "nature, source, rationale and essential role" of the right to appeal from deportation orders under the Act and the evolution of that right: Re B.C. Motor Vehicle Act, supra.

The Immigration Act, S.C. 1910, c. 27, did not provide any specific grounds of appeal. A person ordered deported could only resort to the Minister who, under s. 19, had the authority to overturn a deportation order on unspecified grounds. The Immigration Act, R.S.C. 1952, c. 325, provided for an immigration appeal board; however, appeals against deportation orders remained under the control of the Minister. The appeal board heard only those appeals directed to it by the Minister and the Minister retained the power to confirm or quash the appeal board's decision or substitute his decision as he deemed just and proper. The 1966 White Paper on Immigration criticized the broad overriding power of the Minister with respect to appeals, and recommended that a reconstituted Immigration Appeal Board have authority to deal conclusively with appeals against deportation orders except in "security cases". In 1967, the Immigration Appeal Board Act, S.C. 1966-67, c. 90, established an independent Immigration Appeal Board. Section 11 provided for appeals on any questions of law or fact or mixed law and fact. Section 15, for the first time, conferred upon the Board the power to stay or quash a deportation order made against a permanent resident on the basis of all the circumstances of the case. However s. 21 provided that that new power was still subject to the discretion of the Minister and the Solicitor General who could certify their opinion, based on security or criminal intelligence reports, that it would be contrary to the national interest to permit such relief. In Prata v. Minister of Manpower and Immigration, supra, Martland J. stated at p. 381:

The effect of s. 21 is to reserve to the Crown, notwithstanding the powers conferred upon the Board by the Act, the right, similar to the prerogative right which existed at common law, to determine that the continued presence in Canada of an alien, subject to a deportation order, would not be conducive to the public good.

The Immigration Appeal Board Act was repealed by the Immigration Act, 1976, s. 128. Section 72 of the Immigration Act, 1976 effectively consolidated ss. 11 and 15 of the former Immigration Appeal Board Act into one section setting out two separate grounds of appeal. However in my view it did not change the nature of the decision that could be made by the Board "having regard to all the circumstances of the case". That decision remained, as it had been under the 1967 Act, an exercise of discretion based on compassionate grounds. Section 83 of the Immigration Act, 1976 continued to limit the availability of relief based on all the circumstances of the case. Such an appeal had to be dismissed if the Minister and the Solicitor General certified their opinion that, based on security or criminal intelligence reports, it would be contrary to the national interest to permit it. Finally in 1984 the Security Intelligence Review Committee was established by the CSIS Act. The Review Committee was assigned various functions under several Acts, including the Immigration Act, 1976. Section 83 was repealed and s. 82.1 and an amended version of s. 83 were substituted. Section 82.1 assigned to the Review Committee the task of investigating and reporting to the Governor in Council as to whether a permanent resident came within the classes of persons not entitled to an appeal on all the circumstances of the case. However, the decision as to whether to direct the issuance of a certificate under s. 83 is that of the Governor in Council.

It can thus be seen that there has never been a universally available right of appeal from a deportation order on "all the circumstances of the case". Such an appeal has historically been a purely discretionary matter. Although it has been added as a statutory ground of appeal, the executive has always retained the power to prevent an appeal from being allowed on that ground in cases involving serious security interests.

If any right of appeal from the deportation order in s. 32(2) is necessary in order to comply with principles of fundamental justice, a "true" appeal which enables the decision of the first instance to be questioned on factual and legal grounds clearly satisfies such a requirement. The absence of an appeal on wider grounds than those on which the initial decision was based does not violate s. 7.

Procedural Ground

The respondent submitted that his s. 7 rights were violated as a result of the procedure followed by the Review Committee. This argument was the basis for the judgment of the majority in the Court of Appeal. I have already concluded that the respondent can assert no substantive right to an appeal on compassionate grounds. It is entirely within the discretion of Parliament whether an appeal on this basis is provided. Accordingly, Parliament could have simply provided that a certificate could issue without any hearing. Does the fact that Parliament has legislated beyond its constitutional requirement to provide that a hearing will be held enable the respondent to complain that the hearing does not comport with the dictates of fundamental justice? It could be argued that the provision of a hearing ex gratia does not expand Parliament's constitutional obligations. I need not resolve this issue in this case because I have concluded that, assuming that proceedings before the Review Committee were subject to the principles of fundamental justice, those principles were observed.

These proceedings took place within the framework of several legislative provisions and Review Committee Rules. Section 82.1(3) of the Immigration Act, 1976 provides that in an investigation by the Review Committee pursuant to a joint report by the Solicitor General and the Minister of Employment and Immigration, ss. 43, 44 and 48 to 51 of the CSIS Act apply, subject to certain specific modifications and with such other modifications as the circumstances require. Section 48(2) of the CSIS Act provides that no one is entitled as of right to be present during, to have access to or to comment on representations made to the Review Committee by any other person. Pursuant to s. 39(1) of the Act, the Review Committee adopted the "Rules of Procedure of the Security Intelligence Review Committee in Relation to its Function Under Paragraph 38(c) of the Canadian Security Intelligence Service Act". Rules 45 to 51 set out the procedure relating to the making of representations under s. 48(2) of the CSIS Act. A party to an oral hearing may be represented by counsel, may call and examine witnesses and may make representations (Rule 48(1)). It is within the Committee's discretion to exclude from the hearing one or more parties during the giving of evidence or making of representations by another party (Rule 48(3)). It is also within the Committee's discretion, in balancing the requirements of preventing threats to the security of Canada and providing fairness to the person affected, to determine whether a party is entitled to cross-examine witnesses called by other parties (Rule 48(2)) and whether, if a party has been excluded from portions of the hearing, the substance of the evidence given or the representations made by the other party should be disclosed to that party (Rule 48(4)).

The scope of principles of fundamental justice will vary with the context and the interests at stake. In R. v. Lyons, [1987] 2 S.C.R. 309, La Forest J., writing for the majority, stated at p. 361:

It is clear that, at a minimum, the requirements of fundamental justice embrace the requirements of procedural fairness (see, e.g., the comments to this effect of Wilson J. in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 212-23). It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another.

Similarly, the rules of natural justice and the concept of procedural fairness, which may inform principles of fundamental justice in a particular context, are not fixed standards. See: Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at pp. 895-96; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682.

In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, La Forest J. explained at p. 539 that in assessing whether a procedure accords with fundamental justice, it may be necessary to balance competing interests of the state and the individual:

What these practices have sought to achieve is a just accommodation between the interests of the individual and those of the state, both of which factors play a part in assessing whether a particular law violates the principles of fundamental justice; see R. v. Lyons, [[1987] 2 S.C.R. 309], at pp. 327 and 329; R. v. Beare, [[1988] 2 S.C.R. 387], at pp. 403-5; also my reasons in R. v. Corbett, [1988] 1 S.C.R. 670, at p. 745 (dissenting on another point); see also R. v. Jones, [1986] 2 S.C.R. 284, at p. 304, per La Forest J. (Dickson C.J. and Lamer J. concurring). The interests in the area with which we are here concerned involve particularly delicate balancing. . . .

In the context of hearings conducted by the Review Committee pursuant to a joint report, an individual has an interest in a fair procedure since the Committee's investigation may result in its recommending to the Governor in Council that a s. 83 certificate issue, removing an appeal on compassionate grounds. However, the state also has a considerable interest in effectively conducting national security and criminal intelligence investigations and in protecting police sources. The need for confidentiality in national security cases was emphasized by Lord Denning in R. v. Secretary of State for the Home Department, ex parte Hosenball, [1977] 3 All E.R. 452 (C.A.), at p. 460:

The information supplied to the Home Secretary by the Security Service is, and must be, highly confidential. The public interest in the security of the realm is so great that the sources of information must not be disclosed, nor should the nature of the information itself be disclosed, if there is any risk that it would lead to the sources being discovered. The reason is because, in this very secretive field, our enemies might try to eliminate the source of information.

On the general need to protect the confidentiality of police sources, particularly in the context of drug-related cases: see R. v. Scott, [1990] 3 S.C.R. 979, at pp. 994-95. See also Ross v. Kent Inst. (1987), 57 C.R. (3d) 79, at pp. 85-88 (B.C.C.A.), in which that court held that it is not essential in order to comply with principles of fundamental justice that an inmate know the sources of information before the Parole Board as long as he is informed of the substance of that information.

The CSIS Act and Review Committee Rules recognize the competing individual and state interests and attempt to find a reasonable balance between them. The Rules expressly direct that the Committee's discretion be exercised with regard to this balancing of interests.

In this case the respondent was first provided with the "Statement of Circumstances giving rise to the making of a Report by the Solicitor General of Canada and the Minister of Employment and Immigration to the Security Intelligence Review Committee". This document set out the nature of the information received by the Review Committee from the Ministers, including that the respondent had been involved in drug trafficking, and was involved in the murder of a named individual. Also prior to the Review Committee hearing, the respondent was provided with an extensive summary of surveillance of his activities (the "Chronology of Information") and a "Summary of Interpretation of Intercepted Private Communications relating to the murder of Domenic Racco". Although the first day of the hearing was conducted in camera, the respondent was provided with a summary of the evidence presented. In my view, these various documents gave the respondent sufficient information to know the substance of the allegations against him, and to be able to respond. It is not necessary, in order to comply with fundamental justice in this context, that the respondent also be given details of the criminal intelligence investigation techniques or police sources used to acquire that information.

The respondent was also given the opportunity to respond, by calling his own witnesses or by requesting that he be allowed to cross-examine the RCMP witnesses who testified in camera. The Chairman of the Review Committee clearly indicated an intention to allow such cross-examination:

Certainly, it would be my inclination that if the RCMP wish to call witnesses in support of any or all of the comments that they may make in support of the Statement of Circumstances, there would be the opportunity for the applicant's counsel to cross-examine.

The respondent chose not to exercise these options. Having regard to the information that was disclosed to the respondent, the procedural opportunities that were available to him, and the competing interests at play in this area, I conclude that the procedure followed by the Review Committee in this case did not violate principles of fundamental justice.

VI.       Conclusion

I would therefore allow the appeal, dismiss the cross-appeal, both with costs, and answer the constitutional questions as follows:

Main Appeal

1.(a)        Do sections 82.1 and 83 of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now ss. 81 and 82 of the Immigration Act, R.S.C., 1985, c. I-2) infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms?

Answer:         Assuming without deciding that s. 7 applies, the answer is no.

(b)   If the sections referred to above do infringe or deny the rights guaranteed by s. 7 of the Charter, are they justified by s. 1 of the Charter?

Answer:         This question does not have to be answered.

2.(a)        Does reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now s. 82 of the Immigration Act, R.S.C., 1985, c. I-2) filed in the respondent's case result in an infringement of his rights pursuant to s. 7 of the Charter, because the process followed by the Security Intelligence Review Committee did not meet the requirements of s. 7?

Answer:         Assuming without deciding that s. 7 applies, the answer is no.

(b)   If reliance upon the certificate does infringe or deny the rights guaranteed by s. 7 of the Charter, is it justified by s. 1 of the Charter?

Answer:         This question does not have to be answered.

Cross-Appeal

1.(a)        Do s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, R.S.C., 1985, c. I-2) infringe or deny the rights guaranteed by ss. 7, 12 and 15 of the Canadian Charter of Rights and Freedoms in that they require the deportation of persons convicted of an offence carrying a maximum punishment of five years or more, without reference to the circumstances of the offence or the offender?

Answer:         With respect to s. 15, the answer is no. Assuming, without deciding, that either s. 7 or s. 12 apply, the answer is no.

(b)   If the paragraph and subsection referred to above do infringe or deny the rights guaranteed by ss. 7, 12 and 15 of the Charter, are they justified by s. 1 of the Charter?

Answer:         This question does not have to be answered.

Appeal allowed and cross-appeal dismissed. With respect to the main appeal, assuming without deciding that s. 7 is applicable, ss. 82.1 and 83 of the Immigration Act, 1976, do not infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms and reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, did not result in an infringement of s. 7 having regard to the process followed by the Security Intelligence Review Committee. With respect to the cross-appeal, the requirement that persons convicted of an offence carrying a maximum punishment of five years or more be deported, without reference to the circumstances of the offence or the offender, does not offend s. 15, or ss. 7 or 12 assuming without deciding that these sections applied.

Solicitor for the appellant: John C. Tait, Ottawa.

Solicitor for the respondent: Irwin Koziebrocki, Toronto.

Solicitors for the intervener: Noël, Berthiaume, Aubry, Hull.

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