ГУЛаг Палестины

J.A. observed at p. 318 that "it is a requirement of fundamental justice that no decision be made determining the rights of a person

without giving that person a meaningful opportunity to be heard". In order to have a meaningful opportunity to be heard, the respondent

had to know the information before the Review Committee in order to be able to contradict it. The respondent had not been provided

this opportunity and therefore the procedure followed by the Review Committee did not meet the requirements of fundamental justice.

Pratte J.A. concluded, however, that this limitation could be justified under s. 1 of the Charter. Section 48(2) of the Canadian Security

Intelligence Service Act ("CSIS Act") which denies a party the right to be informed of the evidence led by the other party imposes a

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