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. . .
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,