Страница 310 из 340
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