Текст книги "ГУЛаг Палестины"
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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:
