A-219-89
Joseph (Giuseppe) Chiarelli (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: CHIARELLI v. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION) (CA.)
Court of Appeal, Pratte, Urie and Stone JJ.A.—
Toronto, October 16 and 17, 1989; Ottawa, Febru-
ary 23, 1990.
Immigration — Deportation — Reference under Federal
Court Act, s. 28(4) — Permanent resident convicted of serious
crime — Reported as person involved in organized crime —
Security Intelligence Review Committee proceedings —
Whether Immigration Act, 1976 ss. 27(1)(d)(ii), 32(2), 82.1 and
83 contravening Charter, ss. 7, 12 and 15 — Exclusion from
proceedings so broadly worded proportionality test for Charter
s. 1 justification not met.
Constitutional law — Charter of Rights — Criminal process
— Permanent resident convicted of indictable offence —
Immigration Act, 1976 ss. 27(1)(d)(ii) and 32(2) requiring
deportation order — Not cruel and unusual punishment — S.
32(2) not imposing punishment — Corollary to limits imposed
by s. 4 — Within Parliament's power to impose limits on right
of permanent resident to remain in Canada.
Constitutional law — Charter of Rights — Equality rights
— Deportation of permanent resident convicted of serious
offence required by Immigration Act, 1976, ss. 27(1)(d)(ii) and
32(2) — No discrimination — Within power of Parliament to
differentiate between Canadian citizens and permanent resi
dents as to remaining in Canada — Permanent residents
convicted of serious offences not in category analogous to
those enumerated in s. 15 — Ss. 82.1 and 83(1) describing
procedure leading to issuance of certificate requiring dismissal
of compassionate appeal under s. 72(1)(b) not discrimination
within s. 15 — Loss of right of appeal based on involvement in
criminal activity, not resident status.
Constitutional law — Charter of Rights — Life, liberty and
security — No injustice in Immigration Act, 1976 ss.
27(1)(d)(ii) and 32(2) prescribing loss of right to remain in
country and deportation if permanent resident convicted of
serious offence — Security Intelligence Review Committee
excluding appellant from hearing to protect police sources of
information pursuant to procedure in ss. 82.1 and 83 — As
Board not determining procedure followed not meeting
requirements of natural justice, whether s. 83 contravening s. 7
outside Court's jurisdiction — Denial of information before
Committee and sources of information breach of requirements
of fundamental justice.
Constitutional law — Charter of Rights — Limitation
clause — Exclusion of appellant from Security Intelligence
Review Committee hearing to protect investigatory techniques
of police contravening Charter, s. 7 — Not justified under s. 1
(Pratte J.A. dissenting) — Failing proportionality test —
Complete obliteration of individual's rights in favour of
State's interest.
Security intelligence — Canadian Security Intelligence Ser
vice Act, s. 48(2) denying right to know evidence adduced
before Review Committee by others — Applying mutatis
mutandis to investigation under Immigration Act, s. 82.1(3) to
determine whether serious grounds to suspect permanent resi
dent involved in organized crime — Committee declining to
give appellant details of information obtained from RCMP to
protect police sources of information — Contravention of
Charter, s. 7 — Not justified under Charter, s. 1 (Pratte J.A.
dissenting).
Federal Court jurisdiction — Appeal Division — Immigra
tion Appeal Board referring question of constitutionality of
Immigration Act, s. 83 to Court — As no determination
procedure followed in issuing s. 83 certificate not meeting
requirements of natural justice, question academic and outside
jurisdiction of both Board and Court.
This was a reference by the Immigration Appeal Board
under Federal Court Act, subsection 28(4) of certain constitu
tional questions that arose during the hearing of an appeal from
a deportation order. The appellant, a permanent resident, was
convicted of an indictable offence punishable by a maximum
penalty of life imprisonment. Under such circumstances sub-
paragraph 27(1)(d)(ii) and subsection 32(2) of the Immigra
tion Act, 1976 require that a deportation order be made. The
appellant appealed the deportation order to the Board, but
before the appeal was heard the Solicitor General and Minister
of Employment and Immigration made a joint report to the
Security Intelligence Review Committee pursuant to subsection
82.1(2) of the Immigration Act, 1976 stating that the appellant
was a person suspected of engaging in organized crime. As part
of its investigation the Review Committee held an oral hearing.
In order to protect police sources of information, the appellant
was excluded when evidence from the RCMP was heard. He
was later given a summary of that evidence. Further to the
Review Committee's investigation and report, a certificate was
issued and filed with the Board under subsection 83(1) that the
appellant was a person described in subparagraph 19(1)(d)(ii).
Section 82.1 and subsection 83(1) describe the procedure lead
ing to the issuance of the Minister's certificate. Subsection
83(2) requires the Board to summarily dismiss any appeal
made pursuant to paragraph 72(1 )(b) when such a certificate is
filed. Prior to the resumption of the hearing of the appeal the
Board referred the following questions of law to the Court:
(1) Do subparagraph 27(1)(d)(ii) and subsection 32(2) of
the Immigration Act, 1976 infringe the rights guaranteed by
Charter sections 7, 12 and 15 in that they require deportation
of certain criminals without reference to the circumstances of
the offence or the offender?
(2) Do sections 82.1 and 83 of the Immigration Act, 1976
infringe the rights guaranteed by Charter, sections 7, 12 and
15?
(3)(a) Does reliance upon the certificate authorized by sec
tion 83 of the Immigration Act, 1976 infringe the appellant's
Charter, section 7 rights because the process followed by the
Security Intelligence Review Committee did not meet the
requirements of section 7?
(b) If so, is it justified under section 1?
Held, ( 1) No.
(2) Sections 82.1 and 83 do not infringe Charter sections 12
or 15. The question whether those sections contravene section 7
should not have been referred to the Court under subsection
28(4).
(3)(a) Yes.
(b) No.
Per Pratte J.A. (dissenting with respect to question (3)(b)):
Subparagraph 27(1)(d)(ii) and subsection 32(2) do not contra
vene the right not to be subjected to cruel and unusual treat
ment or punishment guaranteed by Charter, section 12. Subsec
tion 32(2) does not impose a punishment; it is the necessary
corollary of the limits imposed by section 4 of the Act on the
right of a permanent resident to come to and remain in
Canada. Once it is established that a permanent resident is
described in subsection 27(1), he no longer has a right to
remain. There is nothing disproportionate in requiring that a
deportation order be made against that person. Moreover,
Parliament may impose limits on the right enjoyed by perma
nent residents to remain in Canada.
These provisions do not violate the right to life, liberty and
security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice
guaranteed by Charter, section 7. There was no injustice in
requiring the deportation of a person who has lost the right to
remain in the country; nor in prescribing that a foreigner who
has been admitted here as a permanent resident will lose the
right to remain if he is found guilty of an offence which
Parliament considers serious.
Subsection 32(2) does not violate the right to equality guar
anteed by Charter, section 15. Subsection 32(2) does not
discriminate against permanent residents by requiring that they
be deported, while in similar circumstances Canadian citizens
may remain in Canada. The Charter itself distinguishes be-
tween the rights enjoyed by Canadian citizens and permanent
residents in this respect. It guarantees the right of Canadian
citizens to remain in the country, but does not guarantee the
same right to permanent residents. Thus, it impliedly recog
nizes the power of Parliament to differentiate between Canadi-
an citizens and permanent residents with respect to remaining
in Canada. In exercising that power, Parliament is not guilty of
discrimination prohibited by section 15. Enacting a distinction
between permanent residents who have been convicted of a
serious offence and other permanent residents is not discrimina
tion within the meaning of section 15 as permanent residents
who have been convicted of serious criminal offences do not fall
into an analogous category to those specifically enumerated.
Sections 82.1 and 83 do not deprive permanent residents of a
right of appeal on the ground that they are permanent residents
but because they are believed to be engaging in criminal
activity. This is not discrimination within section 15.
The only reason why sections 82.1 and 83 may be said to
contravene Charter, section 7 is that they specifically provide
that a certificate may be issued with respect to a person who
has not been given a full opportunity to refute the allegations
against him. The question of whether the provisions contravene
section 7 arises only when a section 83 certificate has been
issued without giving the person concerned a sufficient opportu
nity to be heard. Otherwise, the question is academic. The
Board was not concerned with that question and could not refer
it to the Court as it had not been determined that the procedure
followed in issuing the section 83 certificate did not meet the
requirements of natural justice.
The right of appeal of which the appellant has been deprived
as a result of the filing of the certificate is in the nature of an
appeal to clemency. Fundamental justice does not require that
a right of appeal be afforded to permanent residents who are
suspected of participation in criminal activities.
The Review Committee's procedure did not meet the require
ments of fundamental justice. No decision should be made
determining the rights of a person without giving him a mean
ingful opportunity to be heard, which in this case meant that
the appellant had to have knowledge of the information before
the Committee and the sources of that information.
The filing of the section 83 certificate contravened Charter,
section 7. Although it did not directly interfere with the
appellant's right to life, liberty and security of the person, the
realistic result is deportation which necessarily implies interfer
ence with liberty of the person.
That violation of section 7 was, however, reasonable and
justified under Charter, section 1, particularly as the investiga
tion was not to determine guilt, but to find whether he deserved
to benefit from an appeal on purely compassionate grounds.
The decision of the Review Committee not to divulge to the
appellant the details of the evidence obtained from the RCMP
was authorized by subsection 48(2) of the Canadian Security
Intelligence Service Act. The disclosure of detailed information
obtained by the police in the course of an ongoing investigation
could seriously impair its result.
Per Stone J.A. (Urie J.A. concurring): The infringement of
appellant's Charter section 7 rights resulting from the section
83 certificate was not justified under section 1 of the Charter.
The question was whether the reliance place on the certificate
was justified in view of the process governing its issuance. The
problem with the legislation was that it did not merely exclude
appellant from the proceedings for the narrow purpose of
safeguarding the investigatory techniques of the Mounted
Police. Subsection 48(2) of the C.S.I.S. Act was broadly
phrased, denying appellant the right to be present and to
comment on the representations made to the Review Commit
tee by any other person. While the provision was fair, rational
and non-arbitrary, the remaining requirements of the propor
tionality test were not met. Rather than balancing the interests
of the State and the individual, the latter's rights had been
obliterated in favour of those of the State. It did not "impair as
little as possible" appellant's rights.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 1, 6(1),(2), 7, 12, 15.
Canadian Security Intelligence Service Act, S.C. 1984, c.
21, ss. 39(2),(3), 43, 44, 48, 49, 50, 51.
Federal Court Act, R.S.C., 1985, c. F-7, s. 28(4).
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 4,
19(1)(d)(ii), 27(1)(d)(ii), 32(2), 72(1) (as am. by S.C.
1984, c. 21, s. 81), 82.1 (as am. idem, s. 84), 83(1) (as
am. idem), (2) (as am. idem).
Narcotic Control Act, R.S.C. 1970, c. N-1, s.4(2).
CASES JUDICIALLY CONSIDERED
APPLIED:
Prata v. Minister of Manpower & Immigration, [ 1976] 1
S.C.R. 376; (1975), 52 D.L.R. (3d) 383; 3 N.R. 484; R.
v. Morgentaler, [1988] 1 S.C.R. 30; (1988), 63 O.R. (2d)
281; 44 D.L.R. (4th) 385; 37 C.C.C. (3d) 449; 62 C.R.
(3d) 1; 31 C.R.R. 1; 82 N.R. 1; 26 O.A.C. 1; Law v.
Solicitor General of Canada, [1985] 1 F.C. 62; (1984),
11 D.L.R. (4th) 608; 57 N.R. 45 (C.A.).
DISTINGUISHED:
R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045;
(1987), 40 D.L.R. (4th) 435; [1987] 5 W.W.R. 1; 15
B.C.L.R. (2d) 273; 34 C.C.C. (3d) 97; 58 C.R. (3d) 193;
31 C.R.R. 193; 75 N.R. 321; Andrews v. Law Society of
British Columbia, [1989] 1 S.C.R. 143; (1989), 56
D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d)
273; 36 C.R.R. 193; 91 N.R. 255.
REFERRED TO:
R. v. Turpin, [1989] 1 S.C.R. 1296; (1989), 48 C.C.C.
(3d) 8; 69 C.R. (3d) 97; 96 N.R. 115; Reference re
Public Service Staff Relations Act, [1973] F.C. 604;
(1973), 38 D.L.R. (3d) 437 (C.A.); Martin Service Sta
tion Ltd. v. Minister of National Revenue, [1974] F.C.
398; (1974), 44 D.L.R. (3d) 99; 1 N.R. 464 (C.A.); R. v.
Wooten (1983), 5 D.L.R. (4th) 371; 9 C.C.C. (3d) 513
(B.C.S.C.); In re Gittens, [1983] 1 F.C. 152; (1982), 137
D.L.R. (3d) 687; 68 C.C.C. (2d) 438; 1 C.R.R. 346
(T.D.); R. v. Parmar et al. (1987), 34 C.C.C. (3d) 260
(Ont. H.C.); R. v. Playford (1987), 63 O.R. (2d) 289; 40
C.C.C. (3d) 142; 61 C.R. (3d) 101; 24 O.A.C. 161 (Ont.
C.A.); R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; 63
C.R. (3d) 113; 25 O.A.C. 321 (Ont. C.A.).
COUNSEL:
Irwin Koziebrocki and D. Shermbrucker for
appellant.
David Sgayias and Geraldine Sparrow for
respondent.
SOLICITORS:
Irwin Koziebrocki, Toronto, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for decision ren
dered in English by
PRATTE J.A.: (dissenting with respect to ques
tion 3(b)): This is a reference by the Immigration
Appeal Board, pursuant to subsection 28(4) of the
Federal Court Act [R.S.C., 1985, c. F-7], of cer
tain constitutional questions that arose during the
hearing of an appeal from a deportation order
made against the appellant, Joseph (Giuseppe)
Chiarelli,' under the Immigration Act, 1976 [S.C.
1976-77, c. 52].
The appellant was born in Italy in 1960. He has
been a permanent resident of Canada since his
arrival here in 1975. On November 5, 1984, he
appeared in Provincial Court, in Hamilton,
' The style of cause refers to Mr. Chiarelli as the "appel-
lant". I will do likewise even though Mr. Chiarelli, who is an
appellant before the Board, is not an appellant in this Court.
Ontario, and pleaded guilty to a charge of "posses-
sion of a narcotic for the purpose of trafficking"
(Narcotic Control Act, R.S.C. 1970, c. N-1, sub
section 4(2)), an indictable offence punishable by
a maximum penalty of life imprisonment. He was
sentenced to six months imprisonment. On Janu-
ary 17, 1986, an immigration officer signed a
report pursuant to section 27 of the Immigration
Act, 1976 2 identifying him as a permanent resident
described in subparagraph 27(1)(d)(ii) who had
"been convicted of an offence under [an] Act of
Parliament for which a term of imprisonment of
... five years or more may be imposed". An
inquiry ensued at the conclusion of which, on May
7, 1986, the Adjudicator decided that the appel
lant was indeed a permanent resident described in
subparagraph 27(1)(d)(ii). As required by subsec
tion 32(2),' the Adjudicator then made a deporta
tion order.
The appellant immediately appealed to the
Immigration Appeal Board from that deportation
2 Section 27 read in part as follows:
27. (1) Where an immigration officer or peace officer has
in his possession information indicating that a permanent
residence is a person who
(d) has been convicted of an offence under any Act of
Parliament for which a term of imprisonment of
(ii) five years or more may be imposed,
he shall forward a written report to the Deputy Minister
setting out the details of such information.
(3) Subject to any order or direction of the Minister, the
Deputy Minister shall, on receiving a report pursuant to
subsection (1) ... and where he considers that an inquiry is
warranted, forward a copy of the report and a direction that
an inquiry be held to a senior immigration officer.
(4) Where a senior immigration officer receives a copy of
a report and a direction pursuant to subsection (3), he shall,
as soon as reasonably practicable, cause an inquiry to be held
concerning the person with respect to whom the report was
made.
3 Subsection 32(2) read in part as follows:
32....
(2) Where an adjudicator decides that a person who is the
subject of an inquiry is a permanent resident described in
subsection 27(1), he shall ... make a deportation order
against that person.
order. 4 That appeal to the Board was to be heard
on February 12, 1987. However, on February 10,
1987, the Solicitor General and the Minister of
Employment and Immigration made a joint report
to the Security Intelligence Review Committee
pursuant to subsection 82.1(2) [as am. by S.C.
1984, c. 21, s. 841 of the Immigration Act, 1976 5
stating that, in their opinion, the appellant was a
person described in subparagraph 19(1)(d)(ii) of
the Act, namely, a person "who there are reason
able grounds to believe will ... engage in activity
that is part of a pattern of criminal activity
planned and organized by a number of persons
acting in concert in furtherance of the commission
of any offence that may be punishable under any
Act of Parliament by way of indictment". On
February 12, 1987, the Immigration Appeal Board
was notified that the two Ministers had made that
report and, as required by subsection 82.1(5),
adjourned the hearing of the appeal.
The Review Committee thereafter made the
necessary investigation. In the course of that inves
tigation, it heard the appellant who nevertheless
does not seem to have been given a full opportunity
to contest the allegation made against him. The
Committee finally reported to the Governor in
Council that the appellant was a person described
in subparagraph 19(1)(d)(ii) of the Immigration
' That appeal was commenced pursuant to subsection 72(1)
[as am. by S.C. 1984, c. 21, s. 81] which then read in part as
follows:
72. (1) Subject to subsection (3), where a removal order
is made against a permanent resident ... that person may
appeal to the Board on either or both of the following
grounds, namely,
(a) on any ground of appeal that involves a question of
law or fact, or mixed law and fact; and
(b) on the ground that, having regard to all the circum
stances of the case, the person should not be removed from
Canada.
Subsection 72(3), which did not apply to the appellant,
provided that the right of appeal of persons in respect of
whom a certificate referred to in subsection 40(1) had been
issued was limited to grounds of appeal involving a question
of law or fact, or mixed law and fact.
5 The text of sections 82.1 and 83 of the Immigration Act,
1976 is reproduced in an annex to these reasons together with
subsections 39(2) and (3) sections 43, 44 and 48 to 51 of the
Canadian Security Intelligence Service Act.
Act, 1976 and that a certificate should be issued
under subsection 83(1) [as am. by S.C. 1984, c.
21, s. 84] in respect of his appeal from the depor
tation order. On October 14, 1987, the Governor
in Council adopted the conclusion of the Review
Committee and directed the Minister of Employ
ment and Immigration to issue the certificate.
That certificate was issued on November 17, 1987,
and filed with the Immigration Appeal Board on
December 3, 1987; as a result, the Board, pursuant
to subsection 83(2), had to dismiss the appellant's
appeal in so far as it was made under paragraph
72(1)(b).
The hearing of the appellant's appeal was to be
resumed on February 19, 1988. However, a few
days before that date, the appellant gave notice
that he intended to raise some constitutional ques
tions before the Board. As a consequence of that
notice, the hearing of the appeal was adjourned
until February 1, 1989, at which time the Board,
with the agreement of all parties, took advantage
of subsection 28 (4) of the Federal Court Act and
referred the following questions of law to the
Court:
1. (a) do paragraph 27(1)(d)(ii) and subsection 32(2) of the
Immigration Act, 1976, S.C. 1976-77, c. 52, as amend
ed by S.C. 1984, c. 21, s. 84 (now paragraph
27(1)(d)(ii) and subsection 32(2) of the Immigration
Act, R.S.C. 1985, c. 1-2) infringe or deny the rights
guaranteed by sections 7, 12 and 15 of the Canadian
Charter of Rights and Freedoms in that they require
the deportation of persons convicted of an offence carry
ing a maximum 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 sections 7, 12
and 15 of the Charter, 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. 1-2) infringe or deny the rights guaran
teed 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 punish
ment? 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?
Let us consider first the questions relating to the
constitutionality of subparagraph 27 (l) (d) (ii) and
subsection 32(2) of the Immigration Act, 1976.
These provisions require that a deportation order
be made against a permanent resident who, like
the appellant, has been convicted of an offence
under an Act of Parliament for which a term of
imprisonment of five years or more may be
imposed. It is the position of the appellant that this
requirement is contrary to sections 7, 12 and 15 of
the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982 c. 11 (U.K.)].
The appellant's submission with respect to sec
tion 12 of the Charter is that the deportation of a
permanent resident for the sole reason that he has
committed an offence described in subparagraph
27(1)(d)(ii) without considering the circumstances
in which the offence was committed constitutes a
"cruel and unusual treatment" within the meaning
of section 12 of the Charter. It follows, according
to the appellant, that subsection 32(2) deprives
permanent residents of their right, guaranteed by
section 12 of the Charter, "not to be subjected to
any cruel and unusual treatment or punishment."
The situation, says the appellant, is similar to that
considered by the Supreme Court of Canada in R.
v. Smith (Edward Dewey) 6 where it was held that
the mandatory term of seven years of imprison
ment provided for by subsection 5(2) of the Nar
cotic Control Act [R.S.C. 1970, c. N-1] could be
"grossly disproportionate" to the offence that had
actually been committed and was, for that reason,
a cruel and unusual punishment. Similarly here,
says the appellant, the deportation may be grossly
6 [1987] 1 S.C.R. 1045.
disproportionate to the offence that was actually
committed.
We are not dealing here with a provision requir
ing the imposition of a severe punishment for an
offence. Subsection 32(2) does not impose a pun
ishment; that provision is the necessary corollary
of the limits imposed by section 4 of the Act on the
right of a permanent resident to come and remain
in Canada.' Once it is established that a perma
nent resident is described in subsection 27(1), that
person no longer has the right to remain in the
country. There is nothing disproportionate or
unreasonable in requiring that a deportation order
be then made against that person. Deportation is
the only practical means of forcing a foreigner who
is illegally here to leave. Moreover, Parliament
may and must impose limits on the right enjoyed
by permanent residents to remain in the country.
And, in my view, it cannot be seriously argued that
there be anything cruel, unusual or unreasonable
in prescribing that permanent residents will lose
the right to remain here if they are found guilty of
an offence which Parliament considers to be, in
itself, a serious offence.
In my opinion, subparagraph 27(1)(d)(ii) and
subsection 32(2) of the Immigration Act, 1976 do
not contravene section 12 of the Charter.
Do these provisions, however, violate section 7 of
the Charter? The appellant argues that they do.
The making of a deportation order against a per
manent resident, says he, is an interference with
the resident's "right to life, liberty and security of
the person" and that interference violates the prin
ciples of fundamental justice (in their substantive
rather than procedural sense) when the law
requires that the deportation be ordered for the
' Section 4 of the Immigration Act, 1976 read in part as
follows:
4. (1) A Canadian citizen and a permanent resident have
a right to come into Canada except where, in the case of a
permanent resident, it is established that that person is a
person described in subsection 27(1).
(2) Subject to any other Act of Parliament, a Canadian
citizen ... [has] a right to remain in Canada except where
(a) ... it is established that that person is a person
described in subsection 27(1);
sole reason that a criminal offence was committed
without considering the circumstances in which it
was committed. I do not see any merit in that
contention. There is no injustice in requiring the
deportation of a person who has lost the right to
remain in the country; there is no injustice, either,
in prescribing that a foreigner who has been
admitted here as a permanent resident will lose the
right to remain in the country if he is found guilty
of an offence which, in itself, Parliament considers
to be serious.
The appellant finally argued that subsection
32(2) violates the right to equality guaranteed by
section 15 of the Charter. He made two submis
sions on the point. His first submission was that
subsection 32(2) infringes section 15 because it
discriminates against permanent residents by
requiring that they be deported while, in similar
circumstances, Canadian citizens may remain in
the country. That submission has no merit. It
would, if accepted, lead to the conclusion that the
Charter guarantees to permanent residents a right
to remain in Canada equal to that enjoyed by
Canadian citizens. That is not so. The Charter,
itself, in subsections 6(1) and (2), 8 distinguishes
between the rights enjoyed by Canadian citizens
and permanent residents in this respect. It is clear
that, subject to section 1, the Charter guarantees
the right of Canadian citizens to remain in the
country; it is equally clear that the Charter does
not guarantee that same right to permanent resi
dents. Thus, the Charter impliedly recognizes the
power of Parliament to differentiate between
Canadian citizens and permanent residents by
imposing limits on the right of the permanent
residents to remain in Canada. In exercising that
power, Parliament is not guilty of discrimination
prohibited by section 15. The situation would be
different if Parliament or a Legislature were to
differentiate between permanent residents and citi
zens otherwise than by determining the limits of
the residents' right to remain in the country. Such
" These subsections read as follows:
6. (1) Every citizen of Canada has the right to enter,
remain in and leave Canada.
(2) Every citizen of Canada and every person who has the
status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
was the case in Andrews v. Law Society of British
Columbia 9 where the Supreme Court of Canada
held that a law denying to permanent residents the
right to practice law was discriminatory and
against section 15 of the Charter.
The appellant's second argument on this point
was that subsection 32(2) infringes section 15 of
the Charter in enacting an unwarranted distinction
between permanent residents who have been con
victed of an offence described in subparagraph
27(1)(d)(ii) and other permanent residents. How
ever, in my view, such a distinction, warranted or
not, cannot be said to amount to discrimination
within the meaning of section 15. No analogy can
be made between the grounds of discrimination
mentioned in section 15 and the fact that certain
permanent residents have been convicted of serious
offences. Permanent residents who have been con
victed of serious criminal offences do not fall into
an analogous category to those specifically enu
merated in section 15. 1 °
My answer to the first set of questions referred
by the Board is therefore that the requirement of
subsection 32(2) of the Immigration Act, 1976
that a deportation order be made against perma
nent residents described in subparagraph
27(1)(d)(ii) does not contravene sections 7, 12 and
15 of the Charter.
The other questions referred by the Board relate
to sections 82.1 and 83 of the Immigration Act,
1976. Those sections apply when a permanent
resident has been ordered deported and has
appealed to the Immigration Appeal Board pursu
ant to subsection 72(1). In such a case, the appel
lant may appeal from the deportation order, under
paragraph 72(1)(a), "on any ground of appeal that
involves a question of law or fact, or mixed law
and fact" and, under paragraph 72(1)(b), "on the
ground that, having regard to all the circum
stances of the case, [he] should not be removed
from Canada." However, subsection 83(2) pro
vides that the Board must summarily dismiss any
9 [1989] 1 S.C.R. 143.
10 See: Andrews v. Law Society of British Columbia, supra,
and R. v. Turpin, [1989] 1 S.C.R. 1296.
appeal made pursuant to paragraph 72(1) (b) if the
Minister of Employment and Immigration files
with the Board a certificate to the effect that the
appellant is, inter alia, a person described in sub-
paragraph 19(1)(d)(ii) "who there are reasonable
grounds to believe will ... engage in activity that
is part of a pattern of criminal activity planned
and organized by a number of persons acting in
concert in furtherance of the commission of any
offence that may be punishable under any Act of
Parliament by way of indictment". Such a certifi
cate, it will be recalled, was filed in respect of the
appellant.
Section 82.1 and subsection 83(1) describe the
procedure leading to the issuance of the Minister's
certificate. It is triggered by the Solicitor General
and the Minister of Employment and Immigration
reporting to the Security Intelligence Review
Committee established by the Canadian Security
Intelligence Service Act [S.C. 1984, c. 21] that
they are of opinion that a permanent resident who
has appealed to the Board pursuant to paragraph
72(1)(b) is a person described in subparagraph
19(1)(d)(ii). On receipt of that report, the Review
Committee makes an investigation in the course of
which it must give to the person concerned a
limited opportunity to be heard and, finally,
reports to the Governor in Council. The Governor
in Council may then, as he did in this case, direct
the Minister of Employment and Immigration to
file a certificate with the Board, with the result
that the Board will have to dismiss the appeal of
the person concerned in so far as that appeal is
based on "all the circumstances of the case".
The Board asks, with respect to those provisions,
whether they violate section 7, 12 or 15 of the
Charter. However, it must be by mistake that
section 12 was mentioned in that question since it
is common ground that there is nothing in those
provisions that could be said to impose a cruel or
unusual treatment or punishment. The only ques
tions that may cause difficulty are those relating to
sections 7 and 15.
The appellant argued that sections 82.1 and 83
violate section 15 because they have the effect of
depriving the appellants to whom they apply of the
benefit of a hearing on the merits of their appeal
on the ground that they are permanent residents.
That argument has no merit. Those sections do not
deprive permanent residents of a right of appeal on
the ground that they are permanent residents but
because they are believed to be engaged in crimi
nal activity. This is not discrimination within the
meaning of section 15.
The question relating to section 7 of the Charter
presents more difficulty.
The only serious reason why sections 82.1 and
83 may be said to contravene section 7 is that they
specifically provide that a certificate may be issued
with respect to a person who has not been given a
full opportunity to refute the allegations against
him. The question that may be asked therefore is
whether the provisions authorizing such a depar
ture from the rule audi alteram partem are void as
contravening section 7 of the Charter. However,
that question arises only in cases where a section
83 certificate has in fact been issued without
giving the person concerned a sufficient opportu
nity to be heard; otherwise, the question is purely
academic. It follows that the Board could not
concern itself with that question and could not
refer it to the Court as it had not been determined
that the procedure actually followed in issuing the
section 83 certificate relating to the appellant did
not meet the requirements of natural justice. The
Immigration Appeal Board may, as was decided in
Law v. Solicitor General of Canada," have the
power to decide Charter questions relating to the
validity of a section 83 certificate, but it may not
determine those questions in the abstract when
they need not be answered in order to dispose of
the matter before it and may not, either, in such
circumstances, refer those questions to the
Court. 12 I would therefore say that the question I
am now discussing should not have been referred
to the Court and should not, for that reason, be
answered.
" [1985] 1 F.C. 62 (C.A.).
12 See: Reference re Public Service Staff Relations Act,
[1973] F.C. 604 (C.A.), at p. 615 and Martin Service Station
Ltd. v. Minister of National Revenue, [1974] 1 F.C. 398
(C.A.).
The same difficulty does not arise with respect
to the last question referred by the Board since
that question relates to the procedure that was
actually followed in issuing a section 83 certificate
in respect of the appellant.
That last question, as I understand it, contains
three different questions:
1. Did the procedure followed in issuing the sec
tion 83 certificate relating to the appellant con
travene the requirements of fundamental
justice?
2. Would the appellant, as a result of the filing of
the certificate, be deprived of his right to life,
liberty and security?
3. If the two preceding questions are answered
affirmatively, is this violation of section 7 of the
Charter justified under section 1?
Before considering the first one of those three
questions, it should be observed that the appellant
did not argue and, in my view, could not reason
ably argue that the deprivation of his right of
appeal under paragraph 72(1)(b) which results
from the filing of the section 83 certificate is, in
itself, contrary to the principles of fundamental
justice (in their substantive sense). In spite of the
filing of the certificate, the appellant continues to
have a right of appeal under paragraph 72(1)(a).
If the deportation order pronounced against him
was wrongfully made, it will be set aside. The right
of appeal of which the appellant is deprived as a
result of the filing of the certificate is merely his
right to seek from the Immigration Appeal Board
the permission to remain in the country notwith
standing that a valid deportation order has been
made against him in accordance with the princi
ples of fundamental justice. That is an appeal in
the nature of an appeal to clemency. Fundamental
justice certainly does not require that it be afford
ed to all permanent residents including those who
are seriously suspected of having participated in
criminal activities.
What is in question here is the procedure that
was actually followed in issuing the certificate. It
is said that this procedure was deficient because
the appellant was not given a reasonable chance to
answer the case against him.
It is on February 10, 1987, that the Solicitor
General and the Minister of Employment and
Immigration made a joint report to the Security
Intelligence Review Committee with respect to the
appellant who was notified of this by letter dated
February 13, 1987. On May 27, 1987, the Execu
tive Secretary of the Review Committee wrote the
appellant telling him that the report of the two
ministers had been received and that an investiga
tion would take place. Enclosed with that letter
was a document reading thus:
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
Information received by the Security Intelligence Review
Committee from the Solicitor General of Canada and the
Minister of Employment and Immigration is to the effect that
Mr. Giuseppe Chiarelli:
1. is a member of an organization which engages in a pattern
of criminal activity;
2. has engaged in a pattern of criminal activity, including
involvement in murder and various aspects of trafficking in
narcotics;
3. has been convicted of:
a) threatening by telephone; and,
b) possession of a narcotic for the purpose of trafficking;
4. although not charged in the homicide of Domenic Racco,
available evidence indicates that he was involved in the
homicide;
5. has associated since 1982 with:
a) persons believed to be involved in organized crime; and/or
b) persons with criminal records; and/or
c) persons believed to engage in drug trafficking activities.
The appellant was later notified that the Review
Committee would hold an oral hearing at Ottawa,
commencing on June 25, 1987, and that he had the
right to be present with his counsel. The date of
that hearing was subsequently adjourned to Sep-
tember 2, 1987.
On July 14, 1987, the Review Committee sent
the appellant's counsel two lengthy documents: one
was entitled "Chronology of Information and
Occurrences Relating to Giuseppe Chiarelli" and
the other "Summary of Interpretation of Inter
cepted Private Communications Relating to the
Murder of Domenic Racco". These two documents
contained information showing that the appellant
had, for some time, been involved with people
suspected of criminal activities.
On August 25, 1987, counsel for the appellant
was told that, on the first day of the hearing, on
September 2, the Committee would sit in camera
and that neither he nor his client would be allowed
to attend. It is therefore in the absence of the
appellant and his counsel that, on September 2,
1987, the Review Committee heard evidence from
members of the RCMP. A summary of that evi
dence was given to the appellant's counsel on the
following day when he attended with his client at
the resumption of the hearing. It read as follows:
SUMMARY OF IN CAMERA EVIDENCE
SEPTEMBER 2, 1987
RE: CHIARELLI HEARING
Criminal intelligence evidence was received in camera by the
Security Intelligence Review Committee during the first day of
hearing, September 2, 1987, that Giuseppe Chiarelli is involved
in a pattern of criminal activity to the effect that:
1. Chiarelli is a trusted member of an organization which is
engaged in a pattern of criminal activity and is associated, since
in or about 1979, with: Domenic Musitano, Anthony Musitano,
Pasquale Musitano, Giuseppe Avignone and others some of
whom have criminal records and who are involved in ongoing
criminal activities in particular in relation to extortion and drug
trafficking.
2. On a number of occasions Chiarelli, either alone or in the
company of another individual, has approached businessmen in
the Hamilton Area for the purposes of extorting money from
them. In the event that these individuals refused to pay the
money as requested further threats of personal harm to them
and their families or damage to their property were made by
Chiarelli personally or by another individual(s) in Chiarelli's
presence.
3. Since 1979 Chiarelli has engaged in various illegal drug
related activities on behalf of Domenic Musitano. In particular,
Chiarelli has acted as a courier and distributor of cocaine and
has attempted to collect drug debts owed to Domenic
Musitano.
On that second day of the hearing, the presiding
member of the Review Committee told the appel
lant and his counsel that the summary contained
all the information that could possibly be divulged
on the evidence of the members of the RCMP that
had testified on the previous day. He said this:
I am not happy with the procedures imposed upon us by the
Act that created us and the area of unhappiness refers particu
larly to the taking of information, the receiving of information,
in the absence of either the applicant or the applicant's counsel.
We have wrestled with this through many cases over the last
few years. This is the first case involving the RCMP. The
principles that have applied to the exclusion are the same. They
relate to the techniques employed by investigation agencies.
Hitherto, that has been CSIS and, in particular, in the counter-
terrorist and counter-intelligence area. The argument is that if
human sources or particular information about technical
sources are revealed and in the public domain, the ability to
continue to employ such techniques would quickly dissolve and
disappear.
There was a tug-of-war that went on yesterday that I want
you to be aware of and that tug-of-war was, on my part, to
attempt to provide the maximum amount of information to the
applicant and counsel. I am satisfied, in meeting my respon
sibilities, not just in terms of the letter of the Act and the Rules
of Procedure, which you have been provided, that we gave it
our best shot and that you have as much information as it is
possible to provide.
The documents that had been sent to the appel
lant's counsel on July 14, 1987, were thereafter
filed together with the criminal records of the
appellant and his alleged associates. Counsel for
the RCMP indicated that he did not wish to
introduce any other evidence nor to make any
further representations. The appellant's counsel
refused to participate in that hearing otherwise
than by contesting the fairness and constitutional
ity of the procedure followed by the Committee.
Finally, the presiding member of the Committee
took the matter under advisement but indicated
that the appellant would have one month within
which to submit written material or representa
tions to the Committee. On October 7, 1987, the
appellant's counsel took advantage of that oppor
tunity and sent written submissions to the Com
mittee together with statutory declarations of
members of the appellant's family testifying to the
appellant's good character. The appellant himself
did not subscribe any affidavit or statutory
declaration.
On October 21, 1987, the Review Committee
informed the appellant that it had sent to the
Governor in Council a report concluding that he
was a person as described in subparagraph
19(1)(d)(ii) of the Immigration Act, 1976 and
that a certificate should be issued under section 83
with respect to his appeal from the deportation
order. A few days later, the appellant was advised
that, pursuant to a direction given by the Governor
in Council, the Minister of Employment and
Immigration had issued a section 83 certificate
which had been filed before the Immigration
Appeal Board.
In my opinion, it is a requirement of fundamen
tal justice that no decision be made determining
the rights of a person without giving that person a
meaningful opportunity to be heard. In this case,
the Review Committee had to determine whether
the information in its possession disclosed reason
able grounds to believe that the appellant was a
person described in subparagraph 19(1)(d)(ii) of
the Immigration Act, 1976. In order to get a
meaningful opportunity to be heard, the appellant
had to know, not only what was the information
before the Committee (in order to be able to
contradict it), but also what were the sources of
the information (in order to be able to challenge
their reliability). This, the appellant was not given
an opportunity to know and, for that reason, I am
of opinion that the procedure followed in this case
did not meet the requirements of fundamental
justice.
Did, however, the filing of the section 83 certifi
cate affect the appellant's right to life, liberty and
security of the person? The filing of the certificate
had the effect of depriving the Immigration
Appeal Board of its power to allow the appellant's
appeal on compassionate grounds. This, in itself,
did not directly interfere with the appellant's right
to life, liberty and security of the person." How
ever, if things are looked at realistically, it cannot
be denied that, as a result of the filing of the
certificate, the appellant will be deported to Italy
while he otherwise might have been allowed to
remain in the country. As, in my view, deportation
necessarily implies an interference with the liberty
' 3 Prata v. Minister of Manpower & Immigration, [1976] 1
S.C.R. 376.
of the person,' 4 I would say that a violation of
section 7 of the Charter has been established.
The next question is whether that violation was
authorized by section 1 of the Charter. In other
words, was the limitation that was imposed on the
right of the appellant to know the allegations made
against him reasonable? Was it prescribed by law
and demonstrably justified in a democratic
society?
Pursuant to subsection 82.1(3) of the Immigra
tion Act, 1976, subsection 48(2) of the Canadian
Security Intelligence Service Act applies mutatis
mutandis to investigations made by the Review
Committee under that subsection of the Immigra
tion Act, 1976. Subsection 48(2) reads in part as
follows:
48....
(2) In the course of an investigation ... [all parties con
cerned] shall be given an opportunity to make representations
to the Review Committee, to present evidence and to be heard
personally or by counsel, but no one is entitled as of right to be
present during, to have access to or to comment on representa
tions made to the Review Committee by any other person.
That provision, if it is read literally, would only
deny to each person appearing before the Commit
tee the right to know the "representations" made
by the others; it would leave intact their right to be
informed of the evidence presented before the
Committee. Such a literal interpretation, in my
view, would be absurd. The section must therefore
be understood, in my view, as denying to each
person appearing before the Committee the right
to know, not only the representations made, but
also the evidence adduced by the others.
The decision of the Review Committee not to
divulge to the appellant the details of the evidence
obtained from the RCMP was therefore author
ized by law. It was also, in my view, reasonable
and demonstrably justified.
The purpose of the investigation made by the
Committee was to determine whether the Solicitor
General and the Minister of Employment and
Immigration had serious grounds to suspect the
14 See: R. v. Wooten (1983), 5 D.L.R. (4th) 371 (B.C.S.C.)
at p. 476; contra: In re Gittens, [1983] 1 F.C. 152 (T.D.), at
p. 159.
appellant of being involved in what is commonly
called "organized crime". The evidence before us
shows that there is as much need to protect the
secrecy of police investigations of organized crimi
nal activities as to protect the secrecy of security
intelligence investigations. In both cases, the dis
closure of detailed information obtained by the
police in the course of an ongoing investigation
could seriously impair its result. In these circum
stances, it was, in my view, both reasonable and
justified to limit the appellant's right to know the
allegations that he had to refute, particularly in
view of the fact that thè Review Committee's
investigation was held not for the purpose of deter
mining his guilt, but to find whether he deserved to
benefit from an appeal on purely compassionate
grounds.
I would therefore answer as follows the ques
tions referred by the Board:
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 cer
tificate issued pursuant to section 83 in
respect of Mr. Chiarelli, violate Mr. Chia-
relli's rights under section 7 of the Charter.
(b) That violation of section 7 is justified by
section 1 of the Charter.
ANNEX
Sections 82.1 and 83 of the Immigration Act,
1976:
82.1 (1) In this section and section 83, "Review Committee"
has the meaning assigned to that expression by the Canadian
Security Intelligence Service Act.
(2) Where the Minister and the Solicitor General are of the
opinion, based on security or criminal intelligence reports
received and considered by them, that
(a) a person who has made or is deemed by subsection 75(3)
to have made an appeal pursuant to paragraph 72(1)(b) or
(2)(d), or
(b) a member of the family class whose application for
landing is the subject of an appeal under subsection 79(2)
made by a person who has sponsored the application for
landing
is a person described,
(c) in the case of a permanent resident, in subparagraph
19(1)(d)(ii) or paragraph 19(1)(e) or (g) or 27(1)(c), or
(d) in any other case, in any of paragraphs 19(1)(d) to (g)
or 27(2)(c),
they may make a report to the Review Committee and shall,
within ten days after the report is made, cause a notice to be
sent informing the person who made the appeal of the report
and stating that following an investigation in relation thereto,
the appeal may be dismissed.
(3) Where a report is made to the Review Committee pursu
ant to subsection (2), the Review Committee shall investigate
the grounds on which it is based and for that purpose subsec
tions 39(2) and (3) and sections 43, 44 and 48 to 51 of the
Canadian Security Intelligence Service Act apply, with such
modifications as the circumstances require, to the investigation
as if the investigation were conducted in relation to a complaint
made pursuant to section 42 of that Act, except that
(a) a reference in any of those provisions, to "deputy head"
shall be read as a reference to the Minister and the Solicitor
General; and
(b) paragraph 50(a) of that Act does not apply with respect
to the person concerning whom the report is made.
(4) The Review Committee shall, as soon as practicable
after a report is made to it pursuant to subsection (2), send to
the person who made the appeal referred to in that subsection a
statement summarizing such information available to it as will
enable the person to be as fully informed as possible of the
circumstances giving rise to the report.
(5) Notwithstanding anything in this Act, where a report
concerning any person is made to the Review Committee
pursuant to subsection (2), the hearing of an appeal concerning
the person made or deemed by subsection 75(3) to have been
made pursuant to paragraph 72(1)(b) or (2)(d) or made pursu
ant to section 79 shall not be commenced or, if commenced,
shall be adjourned until the Review Committee has, pursuant
to subsection (6), made a report to the Governor in Council
with respect to that person and the Governor in Council has
made a decision in relation thereto.
(6) The Review Committee shall,
(a) on completion of an investigation in relation to a report
made to it pursuant to subsection (2), make a report to the
Governor in Council containing its conclusion whether or not
a certificate should be issued under subsection 83(1) and the
grounds on which that conclusion is based; and
(b) at the same time as or after a report is made pursuant to
paragraph (a), provide the person who made the appeal
referred to in subsection (2) with a report containing the
conclusion referred to in that paragraph.
83. (1) Where, after considering a report made by the
Review Committee referred to in paragraph 82.1(6)(a), the
Governor in Council is satisfied that a person referred to in
paragraph 82.1(2)(a) or a member of the family class referred
to in paragraph 82.1(2)(b) is a person described
(a) in the case of a permanent resident, in subparagraph
19(1)(d)(ii) or paragraph 19(1)(e) or (g) or 27(1)(c), or
(b) in any other case, in any of paragraphs 19(1)(d) to (g)
or 27(2)(c),
the Governor in Council may direct the Minister to issue a
certificate to that effect.
(2) Notwithstanding anything in this Act, the Board shall
dismiss any appeal made or deemed by subsection 75(3) to have
been made pursuant to paragraph 72(1)(b) or (2)(d) or made
pursuant to section 79 if a certificate referred to in subsection
(1), signed by the Minister, is filed with the Board.
(3) A certificate issued under subsection (1) is, in any
prosecution or other proceeding under or arising out of this
Act, conclusive proof of the matters stated therein and shall be
received by the Board without proof of the signature or official
character of the person appearing to have signed the certificate
unless called into question by the Minister.
Subsections 39(2) and (3) and sections 43, 44 and
48 to 51 of the Canadian Security Intelligence
Service Act:
39....
(2) Notwithstanding any other Act of Parliament or any
privilege under the law of evidence, but subject to subsection
(3), the Review Committee is entitled
(a) to have access to any information under the control of
the Service or of the Inspector General that relates to the
performance of the duties and functions of the Committee
and to receive from the Inspector General, Director and
employees such information, reports and explanations as the
Committee deems necessary for the performance of its duties
and functions; and
(b) during any investigation referred to in paragraph 38(c),
to have access to any information under the control of the
deputy head concerned that is relevant to the investigation.
(3) No information described in subsection (2), other than a
confidence of the Queen's Privy Council for Canada in respect
of which subsection 36.3(1) of the Canada Evidence Act
applies, may be withheld from the Committee on any grounds.
43. A member of the Review Committee may exercise any of
the powers or perform any of the duties or functions of the
Committee under this Part in relation to complaints.
44. Nothing in this Act precludes the Review Committee
from receiving and investigating complaints described in sec
tions 41 and 42 that are submitted by a person authorized by
the complainant to act on behalf of the complainant, and a
reference to a complainant in any other section includes a
reference to a person so authorized.
48. (1) Every investigation of a complaint under this Part
by the Review Committee shall be conducted in private.
(2) In the course of an investigation of a complaint under
this Part by the Review Committee, the complainant, deputy
head concerned and the Director shall be given an opportunity
to make representations to the Review Committee, to present
evidence and to be heard personally or by counsel, but 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.
49. In the course of an investigation of a complaint under
this Part, the Review Committee shall, where appropriate, ask
the Canadian Human Rights Commission for its opinion or
comments with respect to the complaint.
50. The Review Committee has, in relation to the investiga
tion of any complaint under this Part, power
(a) to summon and enforce the appearance of persons before
the Committee and to compel them to give oral or written
evidence on oath and to produce such documents and things
as the Committee deems requisite to the full investigation
and consideration of the complaint in the same manner and
to the same extent as a superior court of record;
(b) to administer oaths; and
(c) to receive and accept such evidence and other informa
tion, whether on oath or by affidavit or otherwise, as the
Committee sees fit, whether or not such evidence or informa
tion is or would be admissible in a court of law.
51. Except in a prosecution of a person for an offence under
section 122 of the Criminal Code (false statements in extra-
judicial proceedings) in respect of a statement made under this
Act, evidence given by a person in proceedings under this part
and evidence of the existence of the proceedings are inadmiss
ible against that person in a court or in any other proceedings.
* * *
The following are the reasons for decision ren
dered in English by
STONE J.A.: I have had the advantage of read
ing the reasons for judgment proposed by my
colleague Mr. Justice Pratte and agree with him in
all respects save for the answer to question 3(b).
While I agree with his reasons for concluding
that the certificate authorized by section 83 of the
Immigration Act, 1976, S.C. 1976-77, c. 52 (now
section 82 of R.S.C., 1985, c. I-2) resulted in an
infringement of the appellant's rights guaranteed
by section 7 of the Charter because the procedure
followed by the Security Intelligence Review Com
mittee did not meet the requirements of that sec
tion, I also hold the view that the denial of section
7 rights is not justified under section 1 of the
Charter. This last question clearly flows from
Question 3(a) which raises the constitutional valid-
ity of the process authorized in respect of the
investigation required to be carried out pursuant to
section 82.1 before the certificate was issued and
filed.
The authority for the investigation itself derives
from subsection 82.1(3) of the Act (now 81(4)):
82.1 .. .
(3) Where a report is made to the Review Committee pursu
ant to subsection (2), the Review Committee shall investigate
the grounds on which it is based and for that purpose subsec
tions 39(2) and (3) and sections 43, 44 and 48 to 51 of the
Canadian Security Intelligence Service Act apply, with such
modifications as the circumstances require, to the investigation
as if the investigation were conducted in relation to a complaint
made pursuant to section 42 of that Act, ...
Subsection 48(2) of the Canadian Security Intelli
gence Service Act, S.C. 1984, c. 21 (now R.S.C.,
1985, c. C-23) reads:
48....
(2) In the course of an investigation of a complaint under
this Part by the Review Committee, the complainant, deputy
head concerned and the Director shall be given an opportunity
to make representations to the Review Committee, to present
evidence and to be heard personally or by counsel, but 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.
Subsections 83(1) and (2) (as am. by S.C. 1984, c.
21, s. 84) of the Act provide, respectively, for the
issuance and filing of the certificate flowing from
an investigation. Clearly, then, what is in question
here is whether the reliance placed on the certifi
cate required by subsection 83(2) is justified in
light of the process governing its issuance as laid
down in subsection 82.1(3) of the Act and in
subsection 48(2) of the Canadian Security Intelli
gence Service Act.
As ply colleague points out, the presiding
member of the Review Committee indicated his
unhappiness with "the procedures imposed upon us
by the Act", but added that the principles applying
to exclusion of the appellant during a portion of
the investigation while the RCMP were presenting
evidence "relate to the techniques employed by
investigation agencies" in that "if human sources
or particular information about technical sources
are revealed and in the public domain, the ability
to continue to employ such techniques would
quickly dissolve and disappear".
The difficulty I have is not that this could never
form a valid ground for excluding the appellant
from the proceedings, but that the law upon which
the exclusion rests is not limited in any way to
exclusion for that narrow purpose. Subsection
48(2) of the Canadian Security Intelligence Ser
vice Act is a broadly phrased substantive provision
expressly denying a person in the position of the
appellant the right "to be present during, to have
access to or to comment on representations made
to the Review Committee by any other person". It
is this wide sweep of interference with section 7
rights that puts in issue whether the law under
which such interference is authorized may be justi
fied under section 1 of the Charter, which
provides:
1. The Canadian Charter of Rights and Freedoms guarantees
the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
The principles applicable to a section 1 analysis
were recently summarized by Chief Justice Dick-
son in R. v. Morgentaler, [1988] 1 S.C.R. 30, at
pages 73-74:
Section 1 of the Charter can potentially be used to "salvage"
a legislative provision which breaches s. 7: Re B.C. Motor
Vehicle Act, per Lamer J., at p. 520. The principles governing
the necessary analysis under s. 1 were set down in R. v. Big M
Drug Mart Ltd. and, more precisely, in R. v. Oakes, [1986] 1
S.C.R. 103. A statutory provision which infringes any section
of the Charter can only be saved under s. 1 if the party seeking
to uphold the provision can demonstrate first, that the objective
of the provision is "of sufficient importance to warrant overrid
ing a constitutionally protected right or freedom" (R. v. Big M
Drug Mart Ltd., at p. 352) and second, that the means chosen
in overriding the right or freedom are reasonable and demon
strably justified in a free and democratic society. This second
aspect ensures that the legislative means are proportional to the
legislative ends (Oakes, at pp. 139-40). In Oakes, at p. 139, the
Court referred to three considerations which are typically
useful in assessing the proportionality of means to ends. First,
the means chosen to achieve an important objective should be
rational, fair and not arbitrary. Second, the legislative means
should impair as little as possible the right or freedom under
consideration. Third, the effects of the limitation upon the
relevant right or freedom should not be out of proportion to the
objective sought to be achieved.
I have no doubt that the State's interest in
protecting confidential police sources and tech
niques is an objective of sufficient importance to
override the constitutionally protected rights under
section 7 of the Charter. I am also of the view that
the withholding of information mandated by the
procedure enacted by subsection 82.1(3) is a fair,
rational and non-arbitrary method of achieving
that objective. However, I am also of the view that
the provision fails the remaining requirements of
proportionality. Rather than providing a mech
anism for balancing the State's interest in protect
ing police sources and techniques with the
individual's interest in fundamental justice (as has
been judicially achieved at common law 15 ), the
provision opts for a complete obliteration of the
individual's rights in favour of the State's interest.
The provision could have achieved its objectives
while infringing the appellant's rights far less
severely than it has done by providing a balancing
mechanism rather than a total denial of the appel
lant's rights. Accordingly, the provision does not
"impair as little as possible" the rights of the
appellant. In addition, there may well be circum
stances where disclosure of the information is una
voidably necessary to establish the innocence of
the person against whom the allegations have been
made, and in such circumstances the infringement
of the right in question, in my view, would be out
of proportion to the objective sought to be
achieved. I therefore conclude that subsection
82.1(3) of the Act prescribing the limit under
subsection 48(2) of the Canadian Security Intelli
gence Service Act is not justified under section 1 of
the Charter.
For these reasons, I would answer question 3(b)
by saying that the violation of the appellant's
rights under section 7 of the Charter is not justi
fied by section 1 of the Charter.
URIE J.A.: I agree.
15 See e.g. R. v. Parmar et al. (1987), 34 C.C.C. (3d) 260
(Ont. H.C.); R. v. Playford (1987), 63 O.R. (2d) 289 (C.A.);
R. v. Rowbotham et al. (1988), 41 C.C.C. (3d) 1 (Ont. C.A.),
at pp. 38-44.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.