Лев Гунин - ГУЛаг Палестины

(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

security and criminal intelligence investigations and in protecting police sources. The need for confidentiality in national security cases

was emphasized by Lord Denning in R. v. Secretary of State for the Home Department, ex parte Hosenball, [1977] 3 All E.R. 452 (C.A.),

at p. 460:

The information supplied to the Home Secretary by the Security Service is, and must be, highly confidential. The public interest in

the security of the realm is so great that the sources of information must not be disclosed, nor should the nature of the information itself

be disclosed, if there is any risk that it would lead to the sources being discovered. The reason is because, in this very secretive field,

our enemies might try to eliminate the source of information.

On the general need to protect the confidentiality of police sources, particularly in the context of drug-related cases: see R. v. Scott,

[1990] 3 S.C.R. 979, at pp. 994-95. See also Ross v. Kent Inst. (1987), 57 C.R. (3d) 79, at pp. 85-88 (B.C.C.A.), in which that court held

that it is not essential in order to comply with principles of fundamental justice that an inmate know the sources of information before the

Parole Board as long as he is informed of the substance of that information.

The CSIS Act and 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.

In this case the respondent was first provided with the "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". This

document set out the nature of the information received by the Review Committee from the Ministers, including that the respondent had

been involved in drug trafficking, and was involved in the murder of a named individual. Also prior to the Review Committee hearing,

the respondent was provided with an extensive summary of surveillance of his activities (the "Chronology of Information") and a

"Summary of Interpretation of Intercepted Private Communications relating to the murder of Domenic Racco". Although the first day of

the hearing was conducted in camera, the respondent was provided with a summary of the evidence presented. In my view, these

various documents gave the respondent sufficient information to know the substance of the allegations against him, and to be able to

respond. It is not necessary, in order to comply with fundamental justice in this context, that the respondent also be given details of the

criminal intelligence investigation techniques or police sources used to acquire that information.

The respondent was also given the opportunity to respond, by calling his own witnesses or by requesting that he be allowed to

cross-examine the RCMP witnesses who testified in camera. The Chairman of the Review Committee clearly indicated an intention to

allow such cross-examination:

Certainly, it would be my inclination that if the RCMP wish to call witnesses in support of any or all of the comments that they may

make in support of the Statement of Circumstances, there would be the opportunity for the applicant's counsel to cross-examine.

The respondent chose not to exercise these options. Having regard to the information that was disclosed to the respondent, the

procedural opportunities that were available to him, and the competing interests at play in this area, I conclude that the procedure

followed by the Review Committee in this case did not violate principles of fundamental justice.

VI. Conclusion

I would therefore allow the appeal, dismiss the cross-appeal, both with costs, and answer the constitutional questions as follows:

Main Appeal

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?

Answer:Assuming without deciding that s. 7 applies, the answer is no.

(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?

Answer:This question does not have to be answered.

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?

Answer: Assuming without deciding that s. 7 applies, the answer is no.

(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?

Answer:This question does not have to be answered.

Cross-Appeal

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?

Answer:With respect to s. 15, the answer is no. Assuming, without deciding, that either s. 7 or s. 12 apply, the answer is no.

(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?

Answer:This question does not have to be answered.

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.

Solicitor for the appellant: John C. Tait, Ottawa.

Solicitor for the respondent: Irwin Koziebrocki, Toronto.

Solicitors for the intervener: Noлl, Berthiaume, Aubry, Hull.

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& IMMIGRATION AND REFUGEE PROTECTION ACT

INTRODUCED

OTTAWA, February 21, 2001 -- Elinor Caplan, Minister of Citizenship and

Immigration, today tabled the Immigration and Refugee Protection Act in the House

of Commons, reaffirming her commitment to be tough on criminals while

strengthening efforts to attract skilled immigrants.

The new bill incorporates a number of recent proposals from Canadians, yet

maintains the core principles and provisions of Bill C-31, the immigration legislation

introduced prior to last fall's general election.

The Minister said the legislation reintroduces severe penalties -fines of up to

$1 million and life in prison -- for people smugglers and traffickers, speeds up

family reunification, and maintains Canada's humanitarian tradition of providing safe

haven to people in need of protection.

"By saying 'No' more quickly to people who would abuse our rules, we are able to

say 'Yes' more often to the immigrants and refugees Canada will need to grow and

prosper in the years ahead," said Minister Caplan.

The bill reintroduces key measures to strengthen the integrity of the refugee

determination system. These include front-end security screening for all claimants,