ГУЛаг Палестины
Шрифт:
the Minister who, under s. 19, had the authority to overturn a deportation order on unspecified grounds. The Immigration Act,
R.S.C. 1952, c. 325, provided for an immigration appeal board; however, appeals against deportation orders remained under the control
of the Minister. The appeal board heard only those appeals directed to it by the Minister and the Minister retained the power to confirm
or quash the appeal board's decision or substitute his decision as he deemed just and proper. The 1966 White Paper on Immigration
criticized the broad overriding power of the Minister with respect to appeals, and recommended that a reconstituted Immigration Appeal
Board have authority to deal conclusively with appeals against deportation orders except in "security cases". In 1967, the Immigration
Appeal Board Act, S.C. 1966-67, c. 90, established an independent Immigration Appeal Board. Section 11 provided for appeals on any
questions of law or fact or mixed law and fact. Section 15, for the first time, conferred upon the Board the power to stay or quash a
deportation order made against a permanent resident on the basis of all the circumstances of the case. However s. 21 provided that that
new power was still subject to the discretion of the Minister and the Solicitor General who could certify their opinion, based on security
or criminal intelligence reports, that it would be contrary to the national interest to permit such relief. In Prata v. Minister of Manpower
and Immigration, supra, Martland J. stated at p. 381:
The effect of s. 21 is to reserve to the Crown, notwithstanding the powers conferred upon the Board by the Act, the right, similar to the
prerogative right which existed at common law, to determine that the continued presence in Canada of an alien, subject to a deportation
order, would not be conducive to the public good.
The Immigration Appeal Board Act was repealed by the Immigration Act, 1976, s. 128. Section 72 of the Immigration Act, 1976
effectively consolidated ss. 11 and 15 of the former Immigration Appeal Board Act into one section setting out two separate grounds of
appeal. However in my view it did not change the nature of the decision that could be made by the Board "having regard to all the
circumstances of the case". That decision remained, as it had been under the 1967 Act, an exercise of discretion based on
compassionate grounds. Section 83 of the Immigration Act, 1976 continued to limit the availability of relief based on all the
circumstances of the case. Such an appeal had to be dismissed if the Minister and the Solicitor General certified their opinion that,
based on security or criminal intelligence reports, it would be contrary to the national interest to permit it. Finally in 1984 the Security
Intelligence Review Committee was established by the CSIS Act. The Review Committee was assigned various functions under
several Acts, including the Immigration Act, 1976. Section 83 was repealed and s. 82.1 and an amended version of s. 83 were
substituted. Section 82.1 assigned to the Review Committee the task of investigating and reporting to the Governor in Council as to
whether a permanent resident came within the classes of persons not entitled to an appeal on all the circumstances of the case.
However, the decision as to whether to direct the issuance of a certificate under s. 83 is that of the Governor in Council.
It can thus be seen that there has never been a universally available right of appeal from a deportation order on "all the
circumstances of the case". Such an appeal has historically been a purely discretionary matter. Although it has been added as a
statutory ground of appeal, the executive has always retained the power to prevent an appeal from being allowed on that ground in
cases involving serious security interests.
If any right of appeal from the deportation order in s. 32(2) is necessary in order to comply with principles of fundamental justice, a
"true" appeal which enables the decision of the first instance to be questioned on factual and legal grounds clearly satisfies such a
requirement. The absence of an appeal on wider grounds than those on which the initial decision was based does not violate s. 7.
Procedural Ground
The respondent submitted that his s. 7 rights were violated as a result of the procedure followed by the Review Committee. This
argument was the basis for the judgment of the majority in the Court of Appeal. I have already concluded that the respondent can assert
no substantive right to an appeal on compassionate grounds. It is entirely within the discretion of Parliament whether an appeal on this
basis is provided. Accordingly, Parliament could have simply provided that a certificate could issue without any hearing. Does the fact
that Parliament has legislated beyond its constitutional requirement to provide that a hearing will be held enable the respondent to
complain that the hearing does not comport with the dictates of fundamental justice? It could be argued that the provision of a hearing
ex gratia does not expand Parliament's constitutional obligations. I need not resolve this issue in this case because I have concluded
that, assuming that proceedings before the Review Committee were subject to the principles of fundamental justice, those principles