Лев Гунин - ГУЛаг Палестины

Charter, and if so, whether that infringement was justified under s. 1; (2) whether reliance upon the certificate authorized by s. 83 of the

Act filed in respondent's case infringed s. 7 because the process followed by the Security Intelligence Review Committed did not meet

the requirements of s. 7.

The respondent in the main appeal was granted leave to cross-appeal, and the constitutional questions stated there queried whether

ss. 27(1)(d)(ii) and 32(2) of the Act infringed ss. 7, 12 and 15 of the Charter in that they required 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,

and if so, whether that infringement was justified under s. 1.

Held: The appeal should be allowed and the 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.

The Court must look to the principles and policies underlying immigration law in determining the scope of principles of fundamental

justice as they apply here. The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to

enter or remain in the country. The common law recognizes no such right and the Charter recognizes the distinction between citizens

and non-citizens. 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). Parliament therefore 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.

A permanent resident has a right to remain in Canada only if he or she has not been convicted of a more serious offence -- one 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. 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.