Лев Гунин - ГУЛаг Палестины

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

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