Текст книги "ГУЛаг Палестины"
Автор книги: Лев Гунин
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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 employйs de production du Quйbec 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: Noлl, Berthiaume, Aubry, Hull.
The official versions of decisions and reasons for decision by the Supreme
Court of Canada are published in the Supreme Court Reports (S.C.R.). This site is
prepared and published by LexUM in partnership with Supreme Court of Canada.
IMMIGRATION AND REFUGEE PROTECTION ACT
INTRODUCED
OTTAWA, February 21, 2001 – Elinor Caplan, Minister of Citizenship and
Immigration, today tabled the Immigration and Refugee Protection Act in the House
of Commons, reaffirming her commitment to be tough on criminals while
strengthening efforts to attract skilled immigrants.
The new bill incorporates a number of recent proposals from Canadians, yet
maintains the core principles and provisions of Bill C-31, the immigration legislation
introduced prior to last fall's general election.
The Minister said the legislation reintroduces severe penalties -fines of up to
$1 million and life in prison – for people smugglers and traffickers, speeds up
family reunification, and maintains Canada's humanitarian tradition of providing safe
haven to people in need of protection.
"By saying 'No' more quickly to people who would abuse our rules, we are able to
say 'Yes' more often to the immigrants and refugees Canada will need to grow and
prosper in the years ahead," said Minister Caplan.
The bill reintroduces key measures to strengthen the integrity of the refugee
determination system. These include front-end security screening for all claimants,
clearer grounds for detention, fewer appeals and opportunities for judicial review to
delay the removal of serious criminals, and suspension of refugee claims for people
charged with serious crimes until the courts have rendered a decision.
The legislation reaffirms the commitment to faster but fair decisions on refugee
claims by consolidating several current steps and criteria into a single protection
decision to be made by the Immigration and Refugee Board, and by combining the
increased use of single-member panels with an internal paper appeal before the
Board.
In addition, the new bill reintroduces a number of key provisions designed to
expand the admission of workers with the skills that are most acutely needed in
Canada.
The key changes that have emerged from discussions of Bill C-31 and that were
introduced today include:
The inclusion of the definition of permanent resident in the Act;
Provisions within the bill that reinforce the government's commitment to
gender equality and clarify that parents are members of the family class;
An oral appeal hearing for people facing a loss of permanent resident status
for failure to maintain residency;
Improved safeguards for people in need of protection:
unsuccessful repeat refugee claimants will be eligible for a
pre-removal risk assessment (PRRA) if they return to Canada after
six months (as opposed to one year);
discretion for oral PRRA in exceptional circumstances;
protected people whose identities have been established will be
eligible to apply for Canadian refugee travel documents;
The requirement of a warrant to arrest refugees and permanent residents for
any immigration matter.
The principle that children will be detained only as a last resort.
The Minister promised supporting regulations over the coming months, which will
include a strengthened overseas refugee resettlement program, an expanded family
class, new selection criteria to attract more highly skilled and adaptable
independent immigrants, and the creation of an "in-Canada" landing class for
temporary workers, foreign students and spouses already established in Canada
and wishing to stay.
The expanded family class will increase the age at which a dependent child can be
sponsored from under 19 to under 22 and allow spouses and children to apply for
permanent residence from within Canada. The Minister also expressed willingness
to pursue discussions with the provinces over additional ways to expand the family
class.
The new legislation will replace the current Immigration Act, which was first passed
in 1976 and which has been amended more than 30 times. Work on the new
legislation began in 1997 and has evolved through extensive consultations with the
provinces, the territories, the legal community, non-governmental organizations and
the general public.
– 30
For Information:
Derik Hodgson
Press Secretary
Minister's Office
(613) 954-1064
Renй Mercier
Media Relations
Communications Branch
(613) 941-7042
Backgrounder # 1
Changes from Bill C-31
In response to Bill C-31, the government received submissions from the Canadian
Bar Association, the United Nations High Commissioner for Refugees, the
Canadian Council for Refugees and many others. The Minister has listened and
responded.
Framework Legislation
What we heard:
The government should ensure that all key principles and core policies are
reflected in the Act and not in the regulations. The regulations should be
limited to matters related to the implementation of policy.
Our response:
1.The new bill places greater emphasis on key principles, including:
The principles of equality and freedom from discrimination.
The principle that minor children should be detained only as a last
resort.
The principle of equality of status for both official languages.
2.The new bill also includes the following provisions previously intended to be
prescribed by regulation:
The provision that parents are members of the family class.
The provision that sponsored spouses, partners and dependent
children of immigrants and refugees and their dependents will not be
refused admission to Canada on the grounds that they would create
an excessive demand on the medical system.
3.The new bill also reinforces the government's commitment to gender
equality and provisions for opposite– and same-sex couples.
Provisions Affecting Permanent Residents
What we heard:
Permanent residents should have a separate, defined status that clearly
specifies their rights and obligations, including the right to enter Canada.
Loss of status determinations should be made only through an oral appeal
to the Immigration and Refugee Board (IRB).
Our response:
The new bill enhances the rights of permanent residents by:
Including a separate definition for permanent residents that highlights the
distinction between permanent residents and other foreign nationals.
Ensuring the right to an oral hearing before the IRB in the case of appeals
on the loss of permanent resident status.
Ensuring facilitated entry for permanent residents without a valid permanent
resident card if they have been outside Canada for less than one year.
Setting a higher threshold for examinations for permanent residents than for
other foreign nationals.
Requiring a warrant to arrest a permanent resident for any immigration
matter.
Access to the Refugee Determination System
What we heard:
Access to the refugee determination system is too restrictive and would
deny access to people convicted of politically trumped-up charges. Others
who are excluded from the IRB procedures may be denied access to a fair
risk assessment upon return to their country of origin.
Our response:
The possibility of politically trumped-up charges will be considered by the
IRB, except in cases where the Minister finds the person to be a danger to
the public.
The new bill clarifies that unsuccessful refugee claimants, refugees who
have withdrawn or abandoned their claims, and refugees excluded from the
IRB process will have access to a pre-removal risk assessment prior to
removal.
The risk review may provide for an oral hearing, depending on the complexity
of the case.
Repeat claimants will have access to the risk review after six months
instead of one year.
People refused resettlement overseas will have access to the IRB
determination system should they later apply from within Canada.
Other Amendments to Respond to Stakeholder Submissions
The time limit for filing leave for judicial review of overseas decisions is
prolonged from 15 to 60 days.
Convention refugees and protected people whose identities have been
established will be provided with a document indicating their status and
making them eligible to apply for refugee travel documents.
– 30
2001-03
Backgrounder # 2
Making the System Work Better
For Immigrants
Improving Client Service
What we are doing:
Piloting new approaches to overseas processing.
Introducing new technology: the Global Case Management System.
Why we are doing it:
To ensure faster processing, quality decisions and increased transparency.
Clearing up Backlogs and Managing the Inventory
What we are doing:
Designating new funds to clear up backlogs.
Improving the management of the inventory of applications for permanent
residence and for immigration visas abroad.
Introducing the Multi-year Planning Process.
Why we are doing it:
To serve Canadians, permanent residents and potential immigrants faster
and more effectively.
To enable the program to move toward immigration levels of one percent of
the population.
Expanding the Family Class
What we are doing:
Broadening the definition of "dependent child" by increasing the age from
under 19 to under 22.
Opening up adoption provisions in keeping with the principle of the best
interests of the child.
Modernizing the definition of "family" to include common-law and same-sex
partners.
Why we are doing it:
To reflect the high value Canadians place on the family.
To maintain and enhance the family class as an important component of the
overall program.
To reflect the changing nature of social relationships in Canada.
Facilitating Family Reunification
What we are doing:
Creating an in-Canada landing class for sponsored spouses and partners for
both immigrants and refugees.
Exempting sponsored spouses, partners and dependent children from the
admission bar with regard to excessive demand on health or social services.
Reducing the age at which Canadian citizens and permanent residents are
eligible to sponsor from 19 to 18.
Including "parent" in the definition of family class within the Act.
Reducing the length of the sponsorship requirement from 10 years to 3
years for spouses and common-law opposite– and same-sex partners.
Why we are doing it:
To make it easier for families to be reunited as soon as possible.
Incorporating the Best Interests of the Child
What we are doing:
Incorporating the principle of the best interests of the child in appropriate
provisions of the Immigration and Refugee Protection Act.
Why we are doing it:
To uphold our international commitments as a signatory to three United
Nations conventions on the rights of the child.
To reflect the high value Canadians place on the well-being of children.
Modernizing the Selection System: Skilled Workers
What we are doing:
Moving away from an occupation-based model to one focused on flexible
and transferable skills.
Assigning more weight to education.
Increasing the relative weight of having knowledge of an official language but
ensuring that language is not a bar to admission.
Creating an "in-Canada landing class" for temporary workers (including
recent graduates from Canadian schools) who have a permanent job offer
and who have been working in Canada.
Why we are doing it:
To attract and keep the highly skilled, adaptable immigrants that Canada
needs to succeed and prosper in the future.
Expanding the Temporary Worker Program
What we are doing:
Facilitating the entry of temporary workers through a more serviceoriented
approach.
Pursuing agreements with individual sectors or firms to identify and meet
short-term labour market needs, while respecting the terms of applicable
federal-provincial agreements.
Why we are doing it:
To allow the immediate needs of employers to be met faster.
To expand our access to the global labour market.
To attract people who are skilled and on the move and to encourage them to
make Canada their destination of choice.
Strengthening Sponsorship Obligations
What we are doing:
People in default of court-ordered spousal or child support payments will not
be allowed to sponsor.
People convicted of a crime related to domestic abuse will not be able to
sponsor unless a pardon has been granted or rehabilitation has been
demonstrated.
New legislative provisions will improve the ability of the federal government to
recover the costs of social assistance in cases of sponsorship default.
People receiving social assistance, except for reasons of disability, will not
be able to sponsor.
Why we are doing it:
To strengthen the integrity of the sponsorship program.
Streamlining Appeals
What we are doing:
Introducing a new leave requirement for people appealing visa officer
decisions from overseas.
Developing an alternative dispute resolution mechanism for overseas
decisions.
Limiting inland humanitarian and compassionate applications to one per
year.
Why we are doing it:
To provide a screening mechanism for applications to the Federal Court for
review of overseas decisions. The leave provision currently exists for inland
applications only.
To provide an effective, alternative means of reviewing and solving disputes
regarding overseas decisions.
To ensure a fast and fair inland system for considering applications on
humanitarian and compassionate grounds.
Business Immigration
What we are doing:
Establishing objective criteria to assess business experience for both the
investor and entrepreneur programs.
Creating a new net worth requirement for entrepreneurs.
Why we are doing it:
To strengthen the integrity of the business immigration program.
Objective Criteria for Permanent Residence
What we are doing:
Introducing a clear physical residency requirement. To retain permanent
residence status, a person must be physically present in Canada for a
cumulative period of 2 years for every 5 working years. People who spend
time overseas for specific reasons (to accompany a Canadian citizen, to
work for a Canadian company, or for humanitarian reasons) will retain their
status.
Developing a fraud-resistant permanent resident card.
Ensuring an oral appeal to the Immigration and Refugee Board (IRB) for all
loss of status cases.
Ensuring that permanent residents without a valid card have the right to
enter if they have been outside Canada for less than one year.
Why we are doing it:
To implement a clear objective standard that is easier to administer.
To replace a document that is easy to forge with one that has
state-of-the-art security features.
And Refugees
Strengthening Refugee Protection: Overseas Resettlement
What we are doing:
Amending the criteria for "ability to establish in Canada" to include social as
well as economic factors.
Pursuing agreements with NGOs to locate, identify, refer and pre-screen
refugee applications in areas where refugees are most in need of protection.
Ensuring that people in urgent need of protection are brought to Canada
within days.
Why we are doing it:
To ensure that the need for protection is the overriding objective in
resettlement from abroad.
To focus existing resources on areas where refugees are most in need of
protection.
Facilitating Family Reunification of Refugees
What we are doing:
Processing overseas families as a unit, including extended family members
of refugees whenever possible.
Allowing dependants of refugees, selected inland or abroad, to be
processed as part of the same application for a period of one year after a
refugee has acquired permanent resident status.
Exempting refugees, their spouses, partners and dependants from the
admission bar with regard to excessive demand on health or social services.
Why we are doing it:
To facilitate the reunification of refugees with their family members as soon
as reasonably practicable.
Faster and Fair Refugee Processing Inland
What we are doing:
Referral to the IRB to be made within three working days.
Consolidating protection decisions at the IRB to examine all risk grounds at
a single hearing. Grounds will include the Geneva Convention, the
Convention against Torture, and the risk of cruel or unusual treatment or
punishment.
The use of single-member panels as the norm, supported by the
establishment of a paper appeal on merit.
Reducing the waiting period from 5 to 3 years for the landing in Canada of
undocumented refugees who are unable to obtain documents from their
listed country of origin because there is no central authority in that country
to issue documents.
Why we are doing it:
To allow genuine refugees to be processed faster so that their lives are not
put in limbo while they wait for decisions crucial to their future.
To provide a fair opportunity to correct errors in law or fact in the first
instance, and to increase the integrity of the decision-making process.
Front-end Security Screening
What it is:
A security check initiated when a person makes a refugee claim.
Why we are doing it:
To catch criminals and people who present security risks at the start of the
process and speed genuine refugees through the system. Currently, a
security screening is carried out only once a person is granted refugee
status by the IRB.
Admissibility Hearing
What it is:
A hearing before an independent adjudicator to decide whether a person is
admissible to Canada.
Why we are doing it:
To make fair but fast decisions on security cases.
Pre-removal Risk Assessment
What we are doing:
Legislating a procedure to fairly assess the risk of return prior to removal.
There will be flexibility for an oral hearing should the complexity of the case
require it.
Repeat claimants, failed refugee claimants, and refugees who have
withdrawn or abandoned their claims will be assessed on the grounds of the
Geneva Convention, the United Nations Convention against Torture, and the
risk of cruel or unusual treatment or punishment.
People found to be inadmissible to Canada for reasons of serious
criminality, security, organized crime or violations of human rights will be
assessed on the grounds of the United Nations Convention against Torture
and the risk of cruel or unusual treatment or punishment.
Why we are doing it:
To ensure that there is a fair and effective procedure for assessing the risk
of return for individuals being removed from Canada.
Strengthening Enforcement
Penalties
What we are doing:
Increasing penalties for existing offences.
Creating a new offence for human trafficking.
Extending Criminal Code counterfeiting provisions (which currently apply
only to passports) to cover any immigration document or travel document
(with an exemption for refugees).
Allowing for the seizure of assets in cases of migrant smuggling and
trafficking.
Providing new authority to seize citizenship documents to prevent fraud.
Creating a new offence for people who counsel a person to misrepresent
himself or herself or to commit an offence under the Act.
Creating a new offence for the possession and laundering of proceeds from
immigration offences.
Raising the penalty to life in prison for migrant smuggling and trafficking.
Why we are doing it:
To ensure that we have the tools we need to combat organized crime and
human trafficking.
Exclusion from the Refugee Determination System
What we are doing:
Barring access to serious criminals, people who present security risks,
organizers of criminal operations, or violators of human rights. A "serious
criminal" is defined as someone who was convicted of an offence punishable
by 10 years or more and who has received a sentence of 2 years or more in
Canada. People convicted of an offence punishable by 10 years or more
outside Canada will only be excluded if the Minister finds them to be a
danger to the public.
Why we are doing it:
To prevent abuse of the refugee protection system.
Eliminating Appeals
What we are doing:
Eliminating appeals to the Immigration Appeal Division for serious criminals,
people who present security risks, members of criminal organizations and
war criminals. There will remain recourse to judicial review with leave by the
Federal Court.
Why we are doing it:
To ensure that we can remove serious criminals and people who pose a
security threat to Canada without delay.
Suspension of a Refugee Claim
What it is:
The ability to suspend a person's application for protection before the IRB if
he or she has been charged with a crime. The claim would be suspended
until the courts have rendered a decision on the case.
Why we are doing it:
To prevent abuse of the system by people who come to Canada not
because they need protection but because they intend to engage in crime.
Repeat Claims
What we are doing:
Extending the period after which a new claim can be made from 90 days to
six months.
Why we are doing it:
To avoid "revolving door" situations where failed refugee claimants return to
Canada and make multiple claims.
Detention and Day Parole
What we are doing:
