Лев Гунин - ГУЛаг Палестины

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.

(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.