ГУЛаг Палестины

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.