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were observed.
These proceedings took place within the framework of several legislative provisions and Review Committee Rules. Section 82.1(3)
of the Immigration Act, 1976 provides that in an investigation by the Review Committee pursuant to a joint report by the Solicitor
General and the Minister of Employment and Immigration, ss. 43, 44 and 48 to 51 of the CSIS Act apply, subject to certain specific
modifications and with such other modifications as the circumstances require. Section 48(2) of the CSIS Act provides that 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. Pursuant to s. 39(1) of the Act, the Review Committee adopted the "Rules of Procedure of the Security Intelligence
Review Committee in Relation to its Function Under Paragraph 38(c) of the Canadian Security Intelligence Service Act". Rules 45 to 51
set out the procedure relating to the making of representations under s. 48(2) of the CSIS Act. A party to an oral hearing may be
represented by counsel, may call and examine witnesses and may make representations (Rule 48(1)). It is within the Committee's
discretion to exclude from the hearing one or more parties during the giving of evidence or making of representations by another party
(Rule 48(3)). It is also within the Committee's discretion, in balancing the requirements of preventing threats to the security of Canada
and providing fairness to the person affected, to determine whether a party is entitled to cross-examine witnesses called by other parties
(Rule 48(2)) and whether, if a party has been excluded from portions of the hearing, the substance of the evidence given or the
representations made by the other party should be disclosed to that party (Rule 48(4)).
The scope of principles of fundamental justice will vary with the context and the interests at stake. In R. v. Lyons, [1987] 2 S.C.R. 309,
La Forest J., writing for the majority, stated at p. 361:
It is clear that, at a minimum, the requirements of fundamental justice embrace the requirements of procedural fairness (see, e.g., the
comments to this effect of Wilson J. in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 212-23). It is also
clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are
invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another.
Similarly, the rules of natural justice and the concept of procedural fairness, which may inform principles of fundamental justice in a
particular context, are not fixed standards. See: Syndicat des employйs de production du Quйbec et de l'Acadie v. Canada (Canadian
Human Rights Commission), [1989] 2 S.C.R. 879, at pp. 895-96; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at
p. 682.
In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1
S.C.R. 425, La Forest J. explained at p. 539 that in assessing whether a procedure accords with fundamental justice, it may be
necessary to balance competing interests of the state and the individual:
What these practices have sought to achieve is a just accommodation between the interests of the individual and those of the state,
both of which factors play a part in assessing whether a particular law violates the principles of fundamental justice; see R. v. Lyons,
[[1987] 2 S.C.R. 309], at pp. 327 and 329; R. v. Beare, [[1988] 2 S.C.R. 387], at pp. 403-5; also my reasons in R. v. Corbett, [1988] 1
S.C.R. 670, at p. 745 (dissenting on another point); see also R. v. Jones, [1986] 2 S.C.R. 284, at p. 304, per La Forest J. (Dickson C.J.
and Lamer J. concurring). The interests in the area with which we are here concerned involve particularly delicate balancing. . . .
In the context of hearings conducted by the Review Committee pursuant to a joint report, an individual has an interest in a fair
procedure since the Committee's investigation may result in its recommending to the Governor in Council that a s. 83 certificate issue,
removing an appeal on compassionate grounds. However, the state also has a considerable interest in effectively conducting national
security and criminal intelligence investigations and in protecting police sources. The need for confidentiality in national security cases
was emphasized by Lord De
at p. 460:
The information supplied to the Home Secretary by the Security Service is, and must be, highly confidential. The public interest in
the security of the realm is so great that the sources of information must not be disclosed, nor should the nature of the information itself
be disclosed, if there is any risk that it would lead to the sources being discovered. The reason is because, in this very secretive field,
our enemies might try to eliminate the source of information.
On the general need to protect the confidentiality of police sources, particularly in the context of drug-related cases: see R. v. Scott,
[1990] 3 S.C.R. 979, at pp. 994-95. See also Ross v. Kent Inst. (1987), 57 C.R. (3d) 79, at pp. 85-88 (B.C.C.A.), in which that court held
that it is not essential in order to comply with principles of fundamental justice that an inmate know the sources of information before the
Parole Board as long as he is informed of the substance of that information.
The CSIS Act and Review Committee Rules recognize the competing individual and state interests and attempt to find a reasonable
balance between them. The Rules expressly direct that the Committee's discretion be exercised with regard to this balancing of
interests.
In this case the respondent was first provided with the "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". This
document set out the nature of the information received by the Review Committee from the Ministers, including that the respondent had
been involved in drug trafficking, and was involved in the murder of a named individual. Also prior to the Review Committee hearing,
the respondent was provided with an extensive summary of surveillance of his activities (the "Chronology of Information") and a
"Summary of Interpretation of Intercepted Private Communications relating to the murder of Domenic Racco". Although the first day of
the hearing was conducted in camera, the respondent was provided with a summary of the evidence presented. In my view, these
various documents gave the respondent sufficient information to know the substance of the allegations against him, and to be able to
respond. It is not necessary, in order to comply with fundamental justice in this context, that the respondent also be given details of the
criminal intelligence investigation techniques or police sources used to acquire that information.
The respondent was also given the opportunity to respond, by calling his own witnesses or by requesting that he be allowed to
cross-examine the RCMP witnesses who testified in camera. The Chairman of the Review Committee clearly indicated an intention to
allow such cross-examination:
Certainly, it would be my inclination that if the RCMP wish to call witnesses in support of any or all of the comments that they may