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the person does fall within one of the categories in s. 82.1(2) (the categories pursuant to which the Ministers can make a joint report to
the Review Committee), he or she may direct the issuance of a certificate under s. 83. The effect of this certificate is to direct the
Immigration Appeal Board to dismiss any appeal made pursuant to s. 72(1)(b). In other words, the individual's appeal will be limited to
questions of fact or law or mixed fact or law.
Substantive Ground
The respondent submits that the impugned legislation is inconsistent with s. 7 of the Charter because it creates a process whereby
he is deprived, contrary to the principles of fundamental justice, of his right to appeal against deportation on the ground set out in
s. 72(1)(b). The necessary implication of this position is that it is a principle of fundamental justice that a permanent resident who is the
subject of deportation proceedings be afforded an appeal on all of the circumstances of the case. Otherwise it ca
principles of fundamental justice for Parliament to limit the availability of such an appeal. In my view s. 7 does not mandate the
provision of a compassionate appeal from a decision which, as I have already concluded, comports with principles of fundamental
justice.
Before a deportation order can be issued against a permanent resident, an inquiry must be conducted by an adjudicator to determine
whether the permanent resident does fall into one of the classes in s. 27(1). Section 72(1)(a) provides for an appeal from such a
deportation order on any question of law or fact or mixed law and fact. The decision of the Board is subject to appeal to the Federal
Court of Appeal on a question of law if leave is granted by that Court (s. 84 of the Act (now s. 83)). These rights of appeal offer ample
protection to an individual from an erroneous decision by the adjudicator. The question is whether principles of fundamental justice
require more than this. In order to answer this question it is necessary to consider the "nature, source, rationale and essential role" of the
right to appeal from deportation orders under the Act and the evolution of that right: Re B.C. Motor Vehicle Act, supra.
The Immigration Act, S.C. 1910, c. 27, did not provide any specific grounds of appeal. A person ordered deported could only resort to
the Minister who, under s. 19, had the authority to overturn a deportation order on unspecified grounds. The Immigration Act,
R.S.C. 1952, c. 325, provided for an immigration appeal board; however, appeals against deportation orders remained under the control
of the Minister. The appeal board heard only those appeals directed to it by the Minister and the Minister retained the power to confirm
or quash the appeal board's decision or substitute his decision as he deemed just and proper. The 1966 White Paper on Immigration
criticized the broad overriding power of the Minister with respect to appeals, and recommended that a reconstituted Immigration Appeal
Board have authority to deal conclusively with appeals against deportation orders except in "security cases". In 1967, the Immigration
Appeal Board Act, S.C. 1966-67, c. 90, established an independent Immigration Appeal Board. Section 11 provided for appeals on any
questions of law or fact or mixed law and fact. Section 15, for the first time, conferred upon the Board the power to stay or quash a
deportation order made against a permanent resident on the basis of all the circumstances of the case. However s. 21 provided that that
new power was still subject to the discretion of the Minister and the Solicitor General who could certify their opinion, based on security
or criminal intelligence reports, that it would be contrary to the national interest to permit such relief. In Prata v. Minister of Manpower
and Immigration, supra, Martland J. stated at p. 381:
The effect of s. 21 is to reserve to the Crown, notwithstanding the powers conferred upon the Board by the Act, the right, similar to the
prerogative right which existed at common law, to determine that the continued presence in Canada of an alien, subject to a deportation
order, would not be conducive to the public good.
The Immigration Appeal Board Act was repealed by the Immigration Act, 1976, s. 128. Section 72 of the Immigration Act, 1976
effectively consolidated ss. 11 and 15 of the former Immigration Appeal Board Act into one section setting out two separate grounds of
appeal. However in my view it did not change the nature of the decision that could be made by the Board "having regard to all the
circumstances of the case". That decision remained, as it had been under the 1967 Act, an exercise of discretion based on
compassionate grounds. Section 83 of the Immigration Act, 1976 continued to limit the availability of relief based on all the
circumstances of the case. Such an appeal had to be dismissed if the Minister and the Solicitor General certified their opinion that,
based on security or criminal intelligence reports, it would be contrary to the national interest to permit it. Finally in 1984 the Security
Intelligence Review Committee was established by the CSIS Act. The Review Committee was assigned various functions under
several Acts, including the Immigration Act, 1976. Section 83 was repealed and s. 82.1 and an amended version of s. 83 were
substituted. Section 82.1 assigned to the Review Committee the task of investigating and reporting to the Governor in Council as to
whether a permanent resident came within the classes of persons not entitled to an appeal on all the circumstances of the case.
However, the decision as to whether to direct the issuance of a certificate under s. 83 is that of the Governor in Council.
It can thus be seen that there has never been a universally available right of appeal from a deportation order on "all the
circumstances of the case". Such an appeal has historically been a purely discretionary matter. Although it has been added as a
statutory ground of appeal, the executive has always retained the power to prevent an appeal from being allowed on that ground in
cases involving serious security interests.
If any right of appeal from the deportation order in s. 32(2) is necessary in order to comply with principles of fundamental justice, a
"true" appeal which enables the decision of the first instance to be questioned on factual and legal grounds clearly satisfies such a
requirement. The absence of an appeal on wider grounds than those on which the initial decision was based does not violate s. 7.
Procedural Ground
The respondent submitted that his s. 7 rights were violated as a result of the procedure followed by the Review Committee. This
argument was the basis for the judgment of the majority in the Court of Appeal. I have already concluded that the respondent can assert
no substantive right to an appeal on compassionate grounds. It is entirely within the discretion of Parliament whether an appeal on this
basis is provided. Accordingly, Parliament could have simply provided that a certificate could issue without any hearing. Does the fact
that Parliament has legislated beyond its constitutional requirement to provide that a hearing will be held enable the respondent to
complain that the hearing does not comport with the dictates of fundamental justice? It could be argued that the provision of a hearing
ex gratia does not expand Parliament's constitutional obligations. I need not resolve this issue in this case because I have concluded
that, assuming that proceedings before the Review Committee were subject to the principles of fundamental justice, those principles