ГУЛаг Палестины

were the criminal records of the respondent and his alleged associates. The respondent was then invited to respond. Counsel for the

respondent objected to the fairness and constitutionality of the proceeding. He submitted no evidence at the hearing and chose not to

cross-examine the two RCMP witnesses who had testified on the first day. He did, however, later make written submissions to the

Committee.

After consideration of the matter, the Review Committee reported to the Governor in Council, pursuant to s. 82.1(6)(a) (now s. 81(7)),

that the respondent was a person 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) (now s. 82(1)) with respect to the respondent's appeal to the

Immigration Appeal Board from the deportation order. This certificate was issued, with the result that the respondent's appeal would

have to be dismissed in so far as it was brought pursuant to s. 72(1)(b) (now s. 70(1)(b)).

The hearing of the appeal was scheduled to resume in February of 1988. The respondent, however, gave notice that he intended to

raise constitutional questions before the Board and the hearing was adjourned. On February 1, 1989, the Board, with the agreement of

the parties, referred three questions to the Federal Court of Appeal for determination pursuant to s. 28(4) of the Federal Court Act, R.S.C.

1970 (2nd Supp.), c. 10:

1 (a)do paragraph 27(1)(d)(ii) and subsection 32(2) of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by S.C. 1984,

c. 21, s. 84 (now paragraph 27(1)(d)(ii) and subsection 32(2) of the Immigration Act, R.S.C. 1985, c. I-2) infringe or deny the rights

guaranteed by sections 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 sections 7, 12 and 15 of the Charter,

are they justified by section 1 of the Charter?

2 (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 sections

81 and 82 of the Immigration Act, R.S.C. 1985, c. I-2) infringe or deny the rights guaranteed by sections 7, 12 and 15 of the Charter as

those provisions:

(i) deprive individuals of the right to life, liberty and security of the person in violation of the principles of fundamental justice, and/or;

(ii) subject individuals to cruel and unusual punishment? and/or;

(iii) deny individuals equality before and under the law?

(b)if the sections referred to above do infringe or deny the rights guaranteed by sections 7, 12 and 15 of the Charter, are they justified

by section 1 of the Charter?

3 (a)does reliance upon the Certificate authorized by section 83 of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by

S.C. 1984, c. 21, s. 84 (now section 82 of the Immigration Act, R.S.C. 1985, c. I-2) filed in Mr. Chiarelli's case result in an infringement of

his rights pursuant to section 7 of the Charter, because the process followed by the Security Intelligence Review Committee did not

meet the requirements of section 7?

(b)if reliance upon the Certificate does infringe or deny the right guaranteed by section 7 of the Charter, is it justified by section 1 of

the Charter?

III. Judgment of the Federal Court of Appeal, [1990] 2 F.C. 299

Pratte J.A. (dissenting on the answer to reference question 3(b))

Pratte J.A. held that the combination of ss. 27(1)(d)(ii) and 32(2) of the Act does not violate s. 12 of the Charter because they do not

impose a punishment. Section 32(2) is the corollary of the limits imposed by s. 4 of the Act on the right of a permanent resident to come

to and remain in Canada. Similarly he held that they do not violate s. 7 since there is no injustice in requiring the deportation of a person

who has lost the right to remain in Canada. Finally there is no violation of s. 15. Section 6 of the Charter specifically provides for

different treatment of citizens and permanent residents regarding the right to remain in Canada. Nor does a distinction between

permanent residents who have been convicted of an offence described in s. 27(1)(d)(ii) and other permanent residents amount to

discrimination within the meaning of s. 15.

Pratte J.A. refused to answer the second question of the reference in so far as it related to s. 7 of the Charter as it had not been

determined by the Immigration Appeal Board that the respondent had not been given a full opportunity to refute the allegations against

him. He held that there was no violation of s. 12 or s. 15.

With respect to the third question, he observed that the filing of the s. 83 certificate had the effect of depriving the Immigration Appeal