Лев Гунин - ГУЛаг Палестины
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:
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
