Лев Гунин - ГУЛаг Палестины
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
