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The offences which are referred to in s. 27(1)(d)(ii) also vary in gravity, as may the factual circumstances surrounding the commission of
a particular offence. However there is one element common to all persons who fall within the class of permanent residents described in
s. 27(1)(d)(ii). They have all deliberately violated an essential condition under which they were permitted to remain in Canada. In such a
situation, there is no breach of fundamental justice in giving practical effect to the termination of their right to remain in Canada. In the
case of a permanent resident, deportation is the only way in which to accomplish this. There is nothing inherently unjust about a
mandatory order. The fact of a deliberate violation of the condition imposed by s. 27(1)(d)(ii) is sufficient to justify a deportation order. It
is not necessary, in order to comply with fundamental justice, to look beyond this fact to other aggravating or mitigating circumstances.
(b) Section 12
The respondent alleges a violation of s. 12 for essentially the same reasons that he claims s. 7 is infringed. He submits that the
combination of s. 27(1)(d)(ii) and 32(2) constitutes cruel and unusual punishment because they require that deportation be ordered
without regard to the circumstances of the offence or the offender. He submits that in the case at bar, the deportation order is grossly
disproportionate to all the circumstances and further, that the legislation in general is grossly disproportionate, having regard to the
many "relatively less serious offences" which are covered by s. 27(1)(d)(ii).
I agree with Pratte J.A. that deportation is not imposed as a punishment. In Reference as to the effect of the Exercise of the Royal
Prerogative of Mercy Upon Deportation Proceedings, [1933] S.C.R. 269, Duff C.J. observed at p. 278 that deportation provisions were
"not concerned with the penal consequences of the acts of individuals". See also Hurd v. Canada (Minister of Employment and
Immigration), [1989] 2 F.C. 594 (C.A.), at pp. 606-07, and Hoang v. Canada (Minister of Employment and Immigration), supra.
Deportation may, however, come within the scope of a "treatment" in s. 12. The Concise Oxford Dictionary (1990) defines treatment as
"a process or ma
decide this point since I am of the view that the deportation authorized by ss. 27(1)(d)(ii) and 32(2) is not cruel and unusual.
The general standard for determining an infringement of s. 12 was set out by Lamer J., as he then was, in the following passage in R.
v. Smith, [1987] 1 S.C.R. 1045, at p. 1072:
The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of
the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 668, "whether the punishment prescribed is so
excessive as to outrage standards of decency". In other words, though the state may impose punishment, the effect of that punishment
must not be grossly disproportionate to what would have been appropriate.
The deportation of a permanent resident who has deliberately violated an essential condition of his or her being permitted to remain
in Canada by committing a criminal offence punishable by imprisonment of five years or more, ca
decency. On the contrary it would tend to outrage such standards if individuals granted conditional entry into Canada were permitted,
without consequence, to violate those conditions deliberately.
(c) Section 15
Although the constitutional question stated by Gonthier J. raises the issue of whether ss. 27(1)(d)(ii) and 32(2) violate s. 15 of the
Charter, the respondent made no submissions on this issue. I agree, for the reasons given by Pratte J.A. in the Federal Court of Appeal,
that there is no violation of s. 15. As I have already observed, s. 6 of the Charter specifically provides for differential treatment of citizens
and permanent residents in this regard. While permanent residents are given various mobility rights in s. 6(2), only citizens are accorded
the right to enter, remain in and leave Canada in s. 6(1). There is therefore no discrimination contrary to s. 15 in a deportation scheme
that applies to permanent residents, but not to citizens.
2 Do ss. 82.1 and 83 of the Immigration Act, 1976 or Reliance on the Certificate Authorized by s. 83, infringe s. 7 of the Charter?
Two separate sets of questions were stated on the main appeal -firstly, whether ss. 82.1 and 83 themselves infringe s. 7 and if so
whether they can be saved under s. 1, and secondly whether reliance on the certificate authorized by s. 83 infringes s. 7 in a ma
that ca
was properly before the Federal Court of Appeal and should have been answered. It can therefore be addressed by this Court on appeal
from the decision of the Federal Court of Appeal.
The section 7 violation raised in both questions involves the operation of a certificate issued under s. 83 of the Act to deprive the
respondent of an appeal under s. 72(1)(b) of the Act. These questions raise two issues -- first, whether the substantive provisions violate
s. 7 and secondly, whether the procedure followed by the Review Committee results in a s. 7 violation. I will deal with these issues in
that order.
The practical significance of ss. 82.1 and 83 of the Act stems from their interaction with the rights of appeal from a s. 32(2) deportation
order provided by s. 72(1) of the Act. Section 72(1)(a) provides for a true appeal, based on any question of law or fact or mixed law and
fact. Under s. 72(1)(b), Parliament has granted a further appeal on the ground that "having regard to all the circumstances of the case,
the person should not be removed from Canada". This latter ground of appeal grants the Immigration Appeal Board discretion to quash
a deportation order notwithstanding the fact that the individual falls within one of the categories in s. 27(1) such that the deportation
order was properly made under s. 32(2). It thus allows for clemency from deportation on compassionate grounds.
Section 82.1 sets out the conditions which may give rise to an investigation by the Review Committee and the procedure to be
followed in such an investigation. In general terms the Solicitor General and the Minister of Employment and Immigration may make a
report to the Review Committee in respect of a permanent resident who has launched an appeal pursuant to s. 72(1)(b) where they are
of the opinion, based on security or criminal intelligence reports, that that person is likely to engage in organized crime, espionage, acts
of violence that might endanger the lives or safety of persons in Canada, or subversion by force of any government. In the case of the
respondent the joint report was based on s. 19(1)(d)(ii):
19. (1) . . .
(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;
When the Review Committee receives such a joint report, it must conduct an investigation into the grounds on which it is based and
report to the Governor in Council. Where, after considering the report of the Review Committee, the Governor in Council is satisfied that