ГУЛаг Палестины

of Pentonville Prison, [1973] 2 All E.R. 741; Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376.

La Forest J. recently reiterated this principle in Kindler v. Canada (Minister of Justice), supra, at p. 834:

The Government has the right and duty to keep out and to expel aliens from this country if it considers it advisable to do so. This right,

of course, exists independently of extradition. If an alien known to have a serious criminal record attempted to enter into Canada, he

could be refused admission. And by the same token, he could be deported once he entered Canada.

. . .

If it were otherwise, Canada could become a haven for criminals and others whom we legitimately do not wish to have among us.

The distinction between citizens and non-citizens is recognized in the Charter. 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).

Thus Parliament 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. Section 5 of the Act provides that no

person other than a citizen, permanent resident, Convention refugee or Indian registered under the Indian Act has a right to come to or

remain in Canada. The qualified nature of the rights of non-citizens to enter and remain in Canada is made clear by s. 4 of the Act.

Section 4(2) provides that permanent residents have a right to remain in Canada except where they fall within one of the classes in

s. 27(1). One of the conditions Parliament has imposed on a permanent resident's right to remain in Canada is that he or she not be

convicted of an offence 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.

The requirement that the offence be subject to a term of imprisonment of five years indicates Parliament's intention to limit this condition

to more serious types of offences. It is true that the personal circumstances of individuals who breach this condition may vary widely.

The offences which are referred to in s. 27(1)(d)(ii) also vary in gravity, as may the factual circumstances surrounding the commission of

a particular offence. However there is one element common to all persons who fall within the class of permanent residents described in

s. 27(1)(d)(ii). They have all deliberately violated an essential condition under which they were permitted to remain in Canada. In such a

situation, there is no breach of fundamental justice in giving practical effect to the termination of their right to remain in Canada. In the

case of a permanent resident, deportation is the only way in which to accomplish this. There is nothing inherently unjust about a

mandatory order. The fact of a deliberate violation of the condition imposed by s. 27(1)(d)(ii) is sufficient to justify a deportation order. It

is not necessary, in order to comply with fundamental justice, to look beyond this fact to other aggravating or mitigating circumstances.

(b) Section 12

The respondent alleges a violation of s. 12 for essentially the same reasons that he claims s. 7 is infringed. He submits that the

combination of s. 27(1)(d)(ii) and 32(2) constitutes cruel and unusual punishment because they require that deportation be ordered

without regard to the circumstances of the offence or the offender. He submits that in the case at bar, the deportation order is grossly

disproportionate to all the circumstances and further, that the legislation in general is grossly disproportionate, having regard to the

many "relatively less serious offences" which are covered by s. 27(1)(d)(ii).

I agree with Pratte J.A. that deportation is not imposed as a punishment. In Reference as to the effect of the Exercise of the Royal

Prerogative of Mercy Upon Deportation Proceedings, [1933] S.C.R. 269, Duff C.J. observed at p. 278 that deportation provisions were

"not concerned with the penal consequences of the acts of individuals". See also Hurd v. Canada (Minister of Employment and

Immigration), [1989] 2 F.C. 594 (C.A.), at pp. 606-07, and Hoang v. Canada (Minister of Employment and Immigration), supra.

Deportation may, however, come within the scope of a "treatment" in s. 12. The Concise Oxford Dictionary (1990) defines treatment as

"a process or manner of behaving towards or dealing with a person or thing ...." It is unnecessary, for the purposes of this appeal, to

decide this point since I am of the view that the deportation authorized by ss. 27(1)(d)(ii) and 32(2) is not cruel and unusual.

The general standard for determining an infringement of s. 12 was set out by Lamer J., as he then was, in the following passage in R.