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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 Noлl 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 pla
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),