ГУЛаг Палестины
Шрифт:
the class of permanent residents described in s. 27(1)(d)(ii) have deliberately violated an essential condition under which they were
permitted to remain in Canada. Fundamental justice is not breached by deportation: it is the only way to give practical effect to the
termination of a permanent resident's right to remain in Canada. Compliance with fundamental justice does not require that other
aggravating or mitigating circumstances be considered.
The deportation authorized by ss. 27(1)(d)(ii) and 32(2) was not cruel and unusual. The standards of decency are not outraged by 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 serious criminal offence. Rather, those standards would be outraged if individuals granted conditional entry
into Canada were permitted to violate those conditions deliberately and without consequence.
A deportation scheme applicable to permanent residents, but not to citizens, does not infringe s. 15 of the Charter. Section 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).
The effect of the certificate under s. 83 was to direct the Immigration Appeal Board to dismiss any appeal made on compassionate
grounds pursuant to s. 72(1)(b) and so limit the appeal to questions of fact or law or mixed fact and law. Neither the substantive
provisions nor the procedure followed by the Review Committee resulted in a s. 7 violation.
The impugned legislation is consistent with s. 7 of the Charter. Section 7 does not mandate the provision of a compassionate appeal
from a decision which comports with principles of fundamental justice. The right to appeal from the adjudicator's decision, first to the
Board on questions of fact or law or mixed fact and law, and then to the Federal Court of Appeal with leave on questions of law, offers
ample protection to an individual from an erroneous decision by the adjudicator and clearly satisfies the principles of fundamental
justice. The absence of an appeal on wider grounds than those on which the initial decision was based does not violate s. 7. There has
never been a universally available right of appeal from a deportation order on "all the circumstances of the case".
The scope of principles of fundamental justice will vary with the context and the interests at stake. 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. In assessing whether a procedure accords with fundamental justice, it may be necessary to balance competing interests of
the state and the individual.
Assuming that the proceedings before the Review Committee were subject to the principles of fundamental justice, those principles
were observed, having regard to the information disclosed to respondent, the procedural opportunities available to him, and the
competing interests at play in this area.
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 Canadian Security Intelligence Service Act and
the Security Intelligence 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.
The various documents given respondent provided sufficient information to know the substance of the allegations against him, and to
be able to respond. It was not necessary, in order to comply with fundamental justice in this context, that respondent also be given
details of the criminal intelligence investigation techniques or police sources used to acquire that information.
Cases Cited
Referred to: Hoang v. Canada (Minister of Employment Immigration) (1990), 13 Imm. L.R. (2d) 35; Re B.C. Motor Vehicle Act,
[1985] 2 S.C.R. 486; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R.
779; R. v. Governor of Pentonville Prison, [1973] 2 All E.R. 741; Prata v. Minister of Manpower Immigration, [1976] 1 S.C.R. 376;
Reference as to the effect of the Exercise of the Royal Prerogative of Mercy upon Deportation Proceedings, [1933] S.C.R. 269; Hurd v.
Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Lyons, [1987] 2 S.C.R.
309; Syndicat des employйs de production du Quйbec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2
S.C.R. 879; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Thomson Newspapers Ltd. v. Canada (Director of