Canada (Minister of Employment and Immigration) v. Chiarelli [1992] 1 S.C.R. 711 Right to liberty and right not to be deprived thereof except in accordance with principles of fundamental justice -- Deportation of permanent resident convicted of serious crime -- Appeal to Immigration Appeal Board on compassionate grounds barred if Security Intelligence Review Committee finding involvement with organized crime -- Cruel and unusual punishment or treatment –Equality Rights – natural justice

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Immigration -- Deportation -- Permanent resident convicted of serious offence and ordered deported -- Appeal to Immigration Appeal Board on compassionate grounds barred if Security Intelligence Review Committee finding involvement with organized crime -- Summary provided of Committee's in camera proceedings -- Whether infringement of s. 7 right to liberty and right not to be deprived thereof except in accordance with principles of fundamental justice -- Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 4(2), 19(1)(d)(ii), 27(1)(d)(i), (ii), (3), (4), 32(2), 72(1)(a), (b), 82.1(1), (2)(a), (c), (3), (4), (5), (6)(a), (b), 83(1)(a), (2).

Constitutional law -- Charter of Rights -- Right to liberty and right not to be deprived thereof except in accordance with principles of fundamental justice -- Deportation of permanent resident convicted of serious crime -- Appeal to Immigration Appeal Board on compassionate grounds barred if Security Intelligence Review Committee finding involvement with organized crime -- Summary provided of Committee's in camera proceedings -- Whether infringement of s. 7 right to liberty and right not to be deprived thereof except in accordance with principles of fundamental justice -- Canadian Charter of Rights and Freedoms, ss. 1, 7.

Constitutional law -- Charter of Rights -- Cruel and unusual punishment or treatment -- Deportation of permanent resident convicted of serious crime -- Whether infringement of s. 12 right to freedom from cruel and unusual punishment or treatment -- Canadian Charter of Rights and Freedoms, ss. 1, 12.

Constitutional law -- Charter of Rights -- Equality rights -- Deportation of permanent resident convicted of serious crime -- Appeal to Immigration Appeal Board on compassionate grounds barred if Security Intelligence Review Committee finding involvement with organized crime -- Whether infringement of s. 15 right to equal benefit before and under the law -- Canadian Charter of Rights and Freedoms, ss. 1, 15.

Administrative law -- Natural justice -- Fair hearing -- Security Intelligence Review Committee considering whether permanent resident involved with organized crime -- Part of Committee hearing in camera -- Background material and summary of proceedings provided -- Finding of involvement with organized crime barring appeal to Immigration Appeal Board on compassionate grounds.

This appeal called into question the constitutionality of the statutory scheme providing for the deportation of a permanent resident on conviction of a serious criminal offence. The main appeal concerned the removal of a ground of appeal from a deportation order and the procedure by which that removal is effected. The cross-appeal attacked the general statutory scheme.

Respondent was identified in an immigration report made by an immigration officer in January 1986 pursuant to s. 27 of the Immigration Act, 1976, as a permanent resident convicted of an offence for which a term of imprisonment of five years or more may be imposed and therefore a person described in s. 27(1)(d)(ii). An adjudicator, after an inquiry attended by appellant and his counsel, found respondent to be a person described in that section and ordered him deported. The hearing of respondent's appeal to the Immigration Appeal Board against the deportation order, brought pursuant to s. 72(1), was adjourned after the Solicitor General and the Minister of Employment and Immigration made a joint report to the Security Intelligence Review Committee pursuant to s. 82.1(2) indicating respondent to be a person reasonably likely to engage in organized crime.

The Review Committee conducted the required investigation and held a hearing. Prior to the hearing respondent was provided with a document giving background information as to the hearing and summaries of information. A summary of the evidence taken in in camera proceedings of this hearing and provided to respondent indicated that evidence was led that respondent, together with certain named individuals, was a member of a criminal organization which engaged in extortion and drug related activities and that respondent personally took part in the extortion and drug related activities of the organization. The information made available to respondent and the criminal records of respondent and his associates were before the Committee when he appeared and was asked to respond. Counsel for respondent objected to the fairness and constitutionality of the proceeding.

The Review Committee reported to the Governor in Council, pursuant to s. 82.1(6)(a), that respondent was a person there are reasonable grounds to believe will engage in organized crime as described in s. 19(1)(d)(ii). The Governor in Council adopted the conclusion of the Review Committee and directed the appellant Minister to issue a certificate under s. 83(1) with respect to respondent's appeal to the Immigration Appeal Board from the deportation order. This certificate was issued, with the result that respondent's appeal would have to be dismissed in so far as it was brought pursuant to s. 72(1)(b).

The hearing of the appeal was adjourned when respondent gave notice that he intended to raise constitutional questions before the Board and three questions were referred to the Federal Court of Appeal for determination. The court found that: (1) ss. 27(1)(d)(ii) and 32(2) of the Immigration Act, 1976, did not infringe ss. 7, 12 or 15 of the Charter; (2) ss. 82.1 and 83 did not infringe ss. 12 or 15 of the Charter but the question as to whether they contravened s. 7 was not a question that the Board could refer to the Court pursuant to s. 28(4) of the Federal Court Act; and (3) the Board would, in relying upon the certificate, violate respondent's rights under s. 7 and this violation was not justified under s. 1.

The constitutional questions stated in this Court queried whether: (1) ss. 82.1 and 83 of the Immigration Act, 1976 infringed s. 7 of the Charter, and if so, whether that infringement was justified under s. 1; (2) whether reliance upon the certificate authorized by s. 83 of the Act filed in respondent's case infringed s. 7 because the process followed by the Security Intelligence Review Committed did not meet the requirements of s. 7.

The respondent in the main appeal was granted leave to cross-appeal, and the constitutional questions stated there queried whether ss. 27(1)(d)(ii) and 32(2) of the Act infringed ss. 7, 12 and 15 of the Charter in that they required the deportation of persons convicted of an offence carrying a maximum punishment of five years or more, without reference to the circumstances of the offence or the offender, and if so, whether that infringement was justified under s. 1.

Held: The appeal should be allowed and the cross-appeal dismissed. With respect to the main appeal, assuming without deciding that s. 7 is applicable, ss. 82.1 and 83 of the Immigration Act, 1976, do not infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms and reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, did not result in an infringement of s. 7 having regard to the process followed by the Security Intelligence Review Committee. With respect to the cross-appeal, the requirement that persons convicted of an offence carrying a maximum punishment of five years or more be deported, without reference to the circumstances of the offence or the offender, does not offend s. 15, or ss. 7 or 12 assuming without deciding that these sections applied.

The Court must look to the principles and policies underlying immigration law in determining the scope of principles of fundamental justice as they apply here. The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. The common law recognizes no such right and the Charter recognizes the distinction between citizens and non-citizens. While permanent residents are given the right to move to, take up residence in, and pursue the gaining of a livelihood in any province in s. 6(2), only citizens are accorded the right "to enter, remain in and leave Canada" in s. 6(1). Parliament therefore has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. It has done so in the Immigration Act.

A permanent resident has a right to remain in Canada only if he or she has not been convicted of a more serious offence -- one for which a term of imprisonment of five years or more may be imposed. This condition represents a legitimate, non-arbitrary choice by Parliament of a situation in which it is not in the public interest to allow a non-citizen to remain in the country. All persons falling within 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

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