ГУЛаг Палестины

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 ss. 7, 12 and 15 of the Charter, are

they justified by s. 1 of the Charter?

The answers to these questions will dispose of the questions submitted to the Court of Appeal pursuant to s. 28(4) of the Federal Court

Act with this exception. Question 2 at the Federal Court of Appeal corresponds to Question 1 in the main appeal but referred to s. 12 and

s. 15 in addition to s. 7 of the Charter. Sections 12 and 15 were neither argued by the parties in this Court nor referred to in the

constitutional questions. In the circumstances, I will not deal with them.

V. Analysis

The cross-appeal attacks the general scheme providing for deportation of permanent residents who have been convicted of certain

criminal offences. The main appeal concerns the removal of a ground of appeal from a deportation order and the procedure by which

that removal is effected. I will address the cross-appeal first. Throughout these reasons I will refer to Chiarelli as "the respondent" and

the Minister as "the appellant", although their positions are actually reversed on the cross-appeal.

1 Do s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, 1976 violate the Charter?

Section 27(1) requires an immigration officer in possession of information that a permanent resident falls into one of its enumerated

classes to forward a report setting out the details of that information to the Deputy Minister. The relevant class in this case is that set out

in s. 27(1)(d)(ii), a person who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of five

years or more may be imposed. An inquiry is then held by an adjudicator in cases where the Deputy Minister considers that one is

warranted (s. 27(3)). Section 32(2) provides that where an adjudicator decides that a person who is the subject of an inquiry does fall

within one of the classes in s. 27(1), the adjudicator shall, except in the case of a convention refugee, make a deportation order against

that person.

(a) Section 7

The essence of the respondent's position is that ss. 27(1)(d)(ii) and 32(2) are contrary to principles of fundamental justice because

they are mandatory and require that deportation be ordered without regard to the circumstances of the offence or the offender. The

appellant correctly points out that the threshold question is whether deportation per se engages s. 7, that is, whether it amounts to a

deprivation of life, liberty or security of the person. The Federal Court of Appeal in Hoang v. Canada (Minister of Employment

Immigration) (1990), 13 Imm. L.R. (2d) 35, held that deportation for serious offences is not to be conceptualized as a deprivation of

liberty. I do not find it necessary to answer this question, however, since I am of the view that there is no breach of fundamental justice.

The principles of fundamental justice are to be found in the basic tenets of our legal system. Lamer J. (as he then was) stated in Re

B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 513:

Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis

of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system, as it evolves.

He recognized, at p. 513, that "principles of fundamental justice" could not be defined in the abstract but would have to be interpreted in

the context of alleged violations:

. . . those words ca

courts address alleged violations of s. 7.

The importance of a contextual approach to the interpretation of s. 7 was emphasized by Cory J. in R. v. Wholesale Travel Group

Inc., [1991] 3 S.C.R. 154, at p. 226:

It is now clear that the Charter is to be interpreted in light of the context in which the claim arises. Context is relevant both with respect

to the delineation of the meaning and scope of Charter rights, as well as to the determination of the balance to be struck between

individual rights and the interests of society.

He noted that under a contextual approach, constitutional standards developed in the criminal context could not automatically be

applied to regulatory offences. Similarly in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, McLachlin J. adopted at p. 848 a

contextual approach which "takes into account the nature of the decision to be made". She concluded that in defining the fundamental

justice relevant to extradition, the Court must draw upon the principles and policies underlying extradition law and procedure.

Thus in determining the scope of principles of fundamental justice as they apply to this case, the Court must look to the principles

and policies underlying immigration law. The most fundamental principle of immigration law is that non-citizens do not have an

unqualified right to enter or remain in the country. At common law an alien has no right to enter or remain in the country: R. v. Governor

of Pentonville Prison, [1973] 2 All E.R. 741; Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376.

La Forest J. recently reiterated this principle in Kindler v. Canada (Minister of Justice), supra, at p. 834:

The Government has the right and duty to keep out and to expel aliens from this country if it considers it advisable to do so. This right,

of course, exists independently of extradition. If an alien known to have a serious criminal record attempted to enter into Canada, he

could be refused admission. And by the same token, he could be deported once he entered Canada.

. . .

If it were otherwise, Canada could become a haven for criminals and others whom we legitimately do not wish to have among us.

The distinction between citizens and non-citizens is recognized in the Charter. 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).

Thus Parliament 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. Section 5 of the Act provides that no

person other than a citizen, permanent resident, Convention refugee or Indian registered under the Indian Act has a right to come to or

remain in Canada. The qualified nature of the rights of non-citizens to enter and remain in Canada is made clear by s. 4 of the Act.

Section 4(2) provides that permanent residents have a right to remain in Canada except where they fall within one of the classes in

s. 27(1). One of the conditions Parliament has imposed on a permanent resident's right to remain in Canada is that he or she not be

convicted of an offence 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.

The requirement that the offence be subject to a term of imprisonment of five years indicates Parliament's intention to limit this condition

to more serious types of offences. It is true that the personal circumstances of individuals who breach this condition may vary widely.