Canada (Minister of Employment and Immigration) v. Chiarelli

Canada (Minister of Employment and Immigration) v. Chiarelli
Collection
Supreme Court Judgments
Date
1992-03-26
Report
[1992] 1 SCR 711
Case number
21920
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Stevenson, William; Iacobucci, Frank
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Constitutional law
Immigration
Notes
SCC Case Information: 21920
Decision Content
Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711
The Minister of Employment and ImmigrationAppellant and Cross‑Respondent
v.
Joseph (Giuseppe) ChiarelliRespondent and Cross‑Appellant
and
The Security Intelligence Review Committee Intervener
Indexed as: Canada (Minister of Employment and Immigration) v. Chiarelli
File No.: 21920.
1991: October 28; 1992: March 26.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.
on appeal from the federal court of appeal
Immigration ‑‑ Deportation ‑‑ Permanent resident convicted of serious offence and ordered deported ‑‑ Appeal to Immigration Appeal Board on compassionate grounds barred if Security Intelligence Review Committee finding involvement with organized crime ‑‑ Summary provided of Committee's in camera proceedings ‑‑ Whether infringement of s. 7 right to liberty and right not to be deprived thereof except in accordance with principles of fundamental justice ‑‑ 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), 82.1(1), (2)(a), (c), (3), (4), (5), (6)(a), (b), 83(1)(a), (2).
Constitutional law ‑‑ Charter of Rights ‑‑ Right to liberty and right not to be deprived thereof except in accordance with principles of fundamental justice ‑‑ Deportation of permanent resident convicted of serious crime ‑‑ Appeal to Immigration Appeal Board on compassionate grounds barred if Security Intelligence Review Committee finding involvement with organized crime ‑‑ Summary provided of Committee's in camera proceedings ‑‑ Whether infringement of s. 7 right to liberty and right not to be deprived thereof except in accordance with principles of fundamental justice ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 .
Constitutional law ‑‑ Charter of Rights ‑‑ Cruel and unusual punishment or treatment ‑‑ Deportation of permanent resident convicted of serious crime ‑‑ Whether infringement of s. 12 right to freedom from cruel and unusual punishment or treatment ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 12 .
Constitutional law ‑‑ Charter of Rights ‑‑ Equality rights ‑‑ Deportation of permanent resident convicted of serious crime ‑‑ Appeal to Immigration Appeal Board on compassionate grounds barred if Security Intelligence Review Committee finding involvement with organized crime ‑‑ Whether infringement of s. 15 right to equal benefit before and under the law ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 15 .
Administrative law ‑‑ Natural justice ‑‑ Fair hearing ‑‑ Security Intelligence Review Committee considering whether permanent resident involved with organized crime ‑‑ Part of Committee hearing in camera ‑‑ Background material and summary of proceedings provided ‑‑ Finding of involvement with organized crime barring appeal to Immigration Appeal Board on compassionate grounds.
This appeal called into question the constitutionality of the statutory scheme providing for the deportation of a permanent resident on conviction of a serious criminal offence. The main appeal concerned the removal of a ground of appeal from a deportation order and the procedure by which that removal is effected. The cross‑appeal attacked the general statutory scheme.
Respondent was identified in an immigration report made by an immigration officer in January 1986 pursuant to s. 27 of the Immigration Act, 1976, as a permanent resident convicted of an offence for which a term of imprisonment of five years or more may be imposed and therefore a person described in s. 27(1)(d)(ii). An adjudicator, after an inquiry attended by appellant and his counsel, found respondent to be a person described in that section and ordered him deported. The hearing of respondent's appeal to the Immigration Appeal Board against the deportation order, brought pursuant to s. 72(1), was adjourned after the Solicitor General and the Minister of Employment and Immigration made a joint report to the Security Intelligence Review Committee pursuant to s. 82.1(2) indicating respondent to be a person reasonably likely to engage in organized crime.
The Review Committee conducted the required investigation and held a hearing. Prior to the hearing respondent was provided with a document giving background information as to the hearing and summaries of information. A summary of the evidence taken in in camera proceedings of this hearing and provided to respondent indicated that evidence was led that respondent, together with certain named individuals, was a member of a criminal organization which engaged in extortion and drug related activities and that respondent personally took part in the extortion and drug related activities of the organization. The information made available to respondent and the criminal records of respondent and his associates were before the Committee when he appeared and was asked to respond. Counsel for respondent objected to the fairness and constitutionality of the proceeding.
The Review Committee reported to the Governor in Council, pursuant to s. 82.1(6)(a), that respondent was a person there are reasonable grounds to believe will engage in organized crime as 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) with respect to respondent's appeal to the Immigration Appeal Board from the deportation order. This certificate was issued, with the result that respondent's appeal would have to be dismissed in so far as it was brought pursuant to s. 72(1)(b).
The hearing of the appeal was adjourned when respondent gave notice that he intended to raise constitutional questions before the Board and three questions were referred to the Federal Court of Appeal for determination. The court found that: (1) ss. 27(1)(d)(ii) and 32(2) of the Immigration Act, 1976, did not infringe ss. 7 , 12 or 15 of the Charter ; (2) ss. 82.1 and 83 did not infringe ss. 12 or 15 of the Charter but the question as to whether they contravened s. 7 was not a question that the Board could refer to the Court pursuant to s. 28(4) of the Federal Court Act ; and (3) the Board would, in relying upon the certificate, violate respondent's rights under s. 7 and this violation was not justified under s. 1 .
The constitutional questions stated in this Court queried whether: (1) ss. 82.1 and 83 of the Immigration Act, 1976 infringed s. 7 of the 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 employés de production du Québec 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 Noël 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.
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 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