ГУЛаг Палестины
Шрифт:
reasonable limit in light of the need to protect the secrecy of police investigations of organized criminal activities. This was particularly
the case in view of the fact that the Committee's investigation was not to determine the guilt of the respondent, but only whether he
deserved to benefit from an appeal on purely compassionate grounds.
Stone J.A. (Urie J.A. concurring)
The majority agreed with Pratte J.A.'s reasons except that in their view, the violation of s. 7 could not be justified under s. 1 of the
Charter. Although the interest of the state in protecting confidential police sources and techniques is of sufficient importance to warrant
overriding constitutionally protected rights and the withholding of information is rationally connected to that objective, the majority
concluded that the procedure enacted by s. 82.1(3) (now s. 81(4)) failed the remaining requirements of the proportionality test. Rather
than balancing the state's interest in protecting confidential sources and techniques with the individual's interest in fundamental justice,
it was the majority's view that the provision opts for a "complete obliteration" of the individual's right in favour of the state's interest.
The Federal Court of Appeal answered the questions put to it as follows:
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 certificate issued pursuant to section 83 in respect of Mr. Chiarelli, violate Mr. Chiarelli's
rights under section 7 of the Charter.
(b)The violation of section 7 is not justified by section 1 of the Charter.
IV.Issues
The appellant was granted leave to appeal and the following constitutional questions were stated by Gonthier J.:
1 (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 ss. 81
and 82 of the Immigration Act, R.S.C., 1985, c. I-2) infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and
Freedoms?
(b) If the sections referred to above do infringe or deny the rights guaranteed by s. 7 of the Charter, are they justified by s. 1 of the
Charter?
2 (a) Does reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by
S.C. 1984, c. 21, s. 84 (now s. 82 of the Immigration Act, R.S.C., 1985, c. I-2) filed in the respondent's case result in an infringement of
his rights pursuant to s. 7 of the Charter, because the process followed by the Security Intelligence Review Committee did not meet the
requirements of s. 7?
(b) If reliance upon the certificate does infringe or deny the rights guaranteed by s. 7 of the Charter, is it justified by s. 1 of the
Charter?
The respondent in the main appeal was granted leave to cross-appeal, and the following constitutional questions were stated by
Gonthier J.:
1 (a) Do s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now s.
27(1)(d)(ii) and s. 32(2) of the Immigration Act, R.S.C., 1985, c. I-2) infringe or deny the rights guaranteed by ss. 7, 12 and 15 of the
Canadian Charter of Rights and Freedoms in that they require 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?
(b) If the paragraph and subsection referred to above do infringe or deny the rights guaranteed by ss. 7, 12 and 15 of the Charter, are
they justified by s. 1 of the Charter?
The answers to these questions will dispose of the questions submitted to the Court of Appeal pursuant to s. 28(4) of the Federal Court
Act with this exception. Question 2 at the Federal Court of Appeal corresponds to Question 1 in the main appeal but referred to s. 12 and
s. 15 in addition to s. 7 of the Charter. Sections 12 and 15 were neither argued by the parties in this Court nor referred to in the
constitutional questions. In the circumstances, I will not deal with them.
V. Analysis
The cross-appeal attacks the general scheme providing for deportation of permanent residents who have been convicted of certain
criminal offences. The main appeal concerns the removal of a ground of appeal from a deportation order and the procedure by which
that removal is effected. I will address the cross-appeal first. Throughout these reasons I will refer to Chiarelli as "the respondent" and
the Minister as "the appellant", although their positions are actually reversed on the cross-appeal.
1 Do s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, 1976 violate the Charter?
Section 27(1) requires an immigration officer in possession of information that a permanent resident falls into one of its enumerated
classes to forward a report setting out the details of that information to the Deputy Minister. The relevant class in this case is that set out