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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 co
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