Лев Гунин - ГУЛаг Палестины

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.