Лев Гунин - ГУЛаг Палестины
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.
