Лев Гунин - ГУЛаг Палестины
Committee has, pursuant to subsection (6), made a report to the Governor in Council with respect to that person and the Governor in
Council has made a decision in relation thereto.
(6) The Review Committee shall,
(a) on completion of an investigation in relation to a report made to it pursuant to subsection (2), make a report to the Governor in
Council containing its conclusion whether or not a certificate should be issued under subsection 83(1) and the grounds on which that
conclusion is based; and
(b) at the same time as or after a report is made pursuant to paragraph (a), provide the person who made the appeal referred to in
subsection (2) with a report containing the conclusion referred to in that paragraph.
83. (1) Where, after considering a report made by the Review Committee referred to in paragraph 82.1(6)(a), the Governor in Council is
satisfied that a person referred to in paragraph 82.1(2)(a) . . . is a person described
(a) in the case of a permanent resident, in subparagraph 19(1)(d)(ii) or paragraph 19(1)(e) or (g) or 27(1)(c),
. . .
the Governor in Council may direct the Minister to issue a certificate to that effect.
(2) Notwithstanding anything in this Act, the Board shall dismiss any appeal made . . . pursuant to paragraph 72(1)(b) . . . if a
certificate referred to in subsection (1), signed by the Minister, is filed with the Board.
Canadian Security Intelligence Service Act, S.C. 1984, c. 21 (now R.S.C., 1985, c. C-23)
48. . . .
(2) In the course of an investigation of a complaint under this Part by the Review Committee, the complainant, deputy head
concerned and the Director shall be given an opportunity to make representations to the Review Committee, to present evidence and to
be heard personally or by counsel, but no one is entitled as of right to be present during, to have access to or to comment on
representations made to the Review Committee by any other person.
Canadian Charter of Rights and Freedoms
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with
the principles of fundamental justice.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law
without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.
II. Facts and Proceedings
The respondent, Joseph (Giuseppe) Chiarelli, was born in Italy in 1960. He received landed immigrant status upon his arrival in
Canada in 1975. On November 1, 1984, the respondent pleaded guilty to unlawfully uttering threats to cause injury, contrary to
s. 331(1)(a) of the Criminal Code, R.S.C. 1970, c. C-34, as amended, an offence punishable by a maximum of ten years' imprisonment.
He received a suspended sentence. On November 5, 1984, he pleaded guilty to possession of a narcotic for the purpose of trafficking,
contrary to s. 4(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1, as amended, which carries a maximum sentence of life
imprisonment. He was sentenced to six months' imprisonment. In January of 1986, Immigration Officer A. Zografos signed a report
pursuant to s. 27 of the Immigration Act, 1976 ("the Act"), identifying the respondent as a permanent resident described in s. 27(1)(d)(ii),
that is, a permanent resident who has been convicted of an offence for which a term of imprisonment of five years or more may be
imposed.
As a result of this report, an inquiry was directed pursuant to s. 27(3) of the Act. The respondent was notified of this inquiry and
attended. At the conclusion of the inquiry on May 7, 1986, Adjudicator J. E. McNamara determined, relying on the Narcotic Control Act
conviction, that the respondent was a person described in s. 27(1)(d)(ii). He therefore made a deportation order against the respondent
pursuant to s. 32(2). The hearing of the respondent's appeal to the Immigration Appeal Board against the deportation order, brought
pursuant to s. 72(1) (now R.S.C., 1985, c. I-2, s. 70(1)), was adjourned after the Solicitor General and the Minister of Employment and
Immigration made a joint report to the Security Intelligence Review Committee (the "Review Committee") pursuant to s. 82.1(2) (now
s. 81(2)). The report indicated that in the opinion of the ministers, the respondent was a person described in s. 19(1)(d)(ii), that is, a
person who there are reasonable grounds to believe will engage in activity that is part of a pattern of organized criminal activity.
Upon receipt of the joint report, the Review Committee conducted the required investigation and a hearing was held on September 2
and 3, 1987. Prior to this hearing the respondent was provided with a document entitled "Statement of Circumstances giving rise to the
making of a Report by the Solicitor General of Canada and the Minister of Employment and Immigration to the Security Intelligence
Review Committee", as well as two summaries of information. The first was a document entitled "Chronology of Information and
Occurrences Relating to Giuseppe Chiarelli" and consisted of an extensive summary of surveillance of the respondent. The second
document was entitled "Summary of Interpretation of Intercepted Private Communications relating to the murder of Domenic Racco".
The first day of the hearing was held in camera and a summary of the evidence provided to the respondent. This summary indicated
that evidence was led that the respondent, together with certain named individuals, was a member of a criminal organization which
engaged in extortion and drug related activities, and further that the respondent personally took part in the extortion and drug related
activities of the organization.
At the second day of the hearing, the respondent attended with counsel. The "Statement of Circumstances", the "Chronology of
Information" and the "Summary of Interpretation of Intercepted Private Communications" were placed before the Review Committee, as
were the criminal records of the respondent and his alleged associates. The respondent was then invited to respond. Counsel for the
respondent objected to the fairness and constitutionality of the proceeding. He submitted no evidence at the hearing and chose not to
cross-examine the two RCMP witnesses who had testified on the first day. He did, however, later make written submissions to the
Committee.
After consideration of the matter, the Review Committee reported to the Governor in Council, pursuant to s. 82.1(6)(a) (now s. 81(7)),
that the respondent was a person described in s. 19(1)(d)(ii). The Governor in Council adopted the conclusion of the Review Committee
and directed the appellant Minister to issue a certificate under s. 83(1) (now s. 82(1)) with respect to the respondent's appeal to the
Immigration Appeal Board from the deportation order. This certificate was issued, with the result that the respondent's appeal would
have to be dismissed in so far as it was brought pursuant to s. 72(1)(b) (now s. 70(1)(b)).
The hearing of the appeal was scheduled to resume in February of 1988. The respondent, however, gave notice that he intended to
raise constitutional questions before the Board and the hearing was adjourned. On February 1, 1989, the Board, with the agreement of
the parties, referred three questions to the Federal Court of Appeal for determination pursuant to s. 28(4) of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10:
1 (a)do paragraph 27(1)(d)(ii) and subsection 32(2) of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by S.C. 1984,
c. 21, s. 84 (now paragraph 27(1)(d)(ii) and subsection 32(2) of the Immigration Act, R.S.C. 1985, c. I-2) infringe or deny the rights
guaranteed by sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms in that they require the deportation of persons
convicted of an offence carrying a maximum punishment of five years or more, without reference to the circumstances of the offence or
the offender;
(b)if the paragraph and subsection referred to above do infringe or deny the rights guaranteed by sections 7, 12 and 15 of the Charter,
are they justified by section 1 of the Charter?
2 (a)do sections 82.1 and 83 of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now sections
81 and 82 of the Immigration Act, R.S.C. 1985, c. I-2) infringe or deny the rights guaranteed by sections 7, 12 and 15 of the Charter as
those provisions:
(i) deprive individuals of the right to life, liberty and security of the person in violation of the principles of fundamental justice, and/or;
(ii) subject individuals to cruel and unusual punishment? and/or;
(iii) deny individuals equality before and under the law?
(b)if the sections referred to above do infringe or deny the rights guaranteed by sections 7, 12 and 15 of the Charter, are they justified
by section 1 of the Charter?
3 (a)does reliance upon the Certificate authorized by section 83 of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by
S.C. 1984, c. 21, s. 84 (now section 82 of the Immigration Act, R.S.C. 1985, c. I-2) filed in Mr. Chiarelli's case result in an infringement of
his rights pursuant to section 7 of the Charter, because the process followed by the Security Intelligence Review Committee did not
meet the requirements of section 7?
(b)if reliance upon the Certificate does infringe or deny the right guaranteed by section 7 of the Charter, is it justified by section 1 of
the Charter?
III. Judgment of the Federal Court of Appeal, [1990] 2 F.C. 299
Pratte J.A. (dissenting on the answer to reference question 3(b))
Pratte J.A. held that the combination of ss. 27(1)(d)(ii) and 32(2) of the Act does not violate s. 12 of the Charter because they do not
impose a punishment. Section 32(2) is the corollary of the limits imposed by s. 4 of the Act on the right of a permanent resident to come
to and remain in Canada. Similarly he held that they do not violate s. 7 since there is no injustice in requiring the deportation of a person
who has lost the right to remain in Canada. Finally there is no violation of s. 15. Section 6 of the Charter specifically provides for
different treatment of citizens and permanent residents regarding the right to remain in Canada. Nor does a distinction between
permanent residents who have been convicted of an offence described in s. 27(1)(d)(ii) and other permanent residents amount to
discrimination within the meaning of s. 15.
Pratte J.A. refused to answer the second question of the reference in so far as it related to s. 7 of the Charter as it had not been
determined by the Immigration Appeal Board that the respondent had not been given a full opportunity to refute the allegations against
him. He held that there was no violation of s. 12 or s. 15.
With respect to the third question, he observed that the filing of the s. 83 certificate had the effect of depriving the Immigration Appeal
Board of its power to allow the respondent's appeal on compassionate grounds. The resulting deportation necessarily implied an
interference with the liberty of the person. In concluding that the respondent's rights under s. 7 of the Charter had been infringed, Pratte
J.A. observed at p. 318 that "it is a requirement of fundamental justice that no decision be made determining the rights of a person
without giving that person a meaningful opportunity to be heard". In order to have a meaningful opportunity to be heard, the respondent
had to know the information before the Review Committee in order to be able to contradict it. The respondent had not been provided
this opportunity and therefore the procedure followed by the Review Committee did not meet the requirements of fundamental justice.
Pratte J.A. concluded, however, that this limitation could be justified under s. 1 of the Charter. Section 48(2) of the Canadian Security
Intelligence Service Act ("CSIS Act") which denies a party the right to be informed of the evidence led by the other party imposes a
reasonable limit in light of the need to protect the secrecy of police investigations of organized criminal activities. This was particularly
the case in view of the fact that the Committee's investigation was not to determine the guilt of the respondent, but only whether he
deserved to benefit from an appeal on purely compassionate grounds.
Stone J.A. (Urie J.A. concurring)
The majority agreed with Pratte J.A.'s reasons except that in their view, the violation of s. 7 could not be justified under s. 1 of the
Charter. Although the interest of the state in protecting confidential police sources and techniques is of sufficient importance to warrant
overriding constitutionally protected rights and the withholding of information is rationally connected to that objective, the majority
concluded that the procedure enacted by s. 82.1(3) (now s. 81(4)) failed the remaining requirements of the proportionality test. Rather
than balancing the state's interest in protecting confidential sources and techniques with the individual's interest in fundamental justice,
it was the majority's view that the provision opts for a "complete obliteration" of the individual's right in favour of the state's interest.
The Federal Court of Appeal answered the questions put to it as follows:
1 Subparagraph 27(1)(d)(ii) and subsection 32(2) of the Immigration Act, 1976 do not infringe section 7, 12 or 15 of the Canadian
Charter of Rights and Freedoms.
2 Sections 82.1 and 83 of the Immigration Act, 1976 do not infringe section 12 or 15 of the Canadian Charter of Rights and Freedoms.
The question whether those sections contravene section 7 of the Charter is not a question that the Board may refer to the Court
pursuant to subsection 28(4) of the Federal Court Act.
3 (a)The Board would, in relying upon the certificate issued pursuant to section 83 in respect of Mr. Chiarelli, violate Mr. Chiarelli's
rights under section 7 of the Charter.
