Текст книги "ГУЛаг Палестины"

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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 employйs de production du Quйbec 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 Noлl 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