ГУЛаг Палестины

v. Smith, [1987] 1 S.C.R. 1045, at p. 1072:

The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of

the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 668, "whether the punishment prescribed is so

excessive as to outrage standards of decency". In other words, though the state may impose punishment, the effect of that punishment

must not be grossly disproportionate to what would have been appropriate.

The deportation of a permanent resident who has deliberately violated an essential condition of his or her being permitted to remain

in Canada by committing a criminal offence punishable by imprisonment of five years or more, cannot be said to outrage standards of

decency. On the contrary it would tend to outrage such standards if individuals granted conditional entry into Canada were permitted,

without consequence, to violate those conditions deliberately.

(c) Section 15

Although the constitutional question stated by Gonthier J. raises the issue of whether ss. 27(1)(d)(ii) and 32(2) violate s. 15 of the

Charter, the respondent made no submissions on this issue. I agree, for the reasons given by Pratte J.A. in the Federal Court of Appeal,

that there is no violation of s. 15. As I have already observed, s. 6 of the Charter specifically provides for differential treatment of citizens

and permanent residents in this regard. While permanent residents are given various mobility rights in s. 6(2), only citizens are accorded

the right to enter, remain in and leave Canada in s. 6(1). There is therefore no discrimination contrary to s. 15 in a deportation scheme

that applies to permanent residents, but not to citizens.

2 Do ss. 82.1 and 83 of the Immigration Act, 1976 or Reliance on the Certificate Authorized by s. 83, infringe s. 7 of the Charter?

Two separate sets of questions were stated on the main appeal -firstly, whether ss. 82.1 and 83 themselves infringe s. 7 and if so

whether they can be saved under s. 1, and secondly whether reliance on the certificate authorized by s. 83 infringes s. 7 in a manner

that cannot be saved under s. 1. I agree with the submissions of both parties that the question of whether ss. 82.1 and 83 violate s. 7

was properly before the Federal Court of Appeal and should have been answered. It can therefore be addressed by this Court on appeal

from the decision of the Federal Court of Appeal.

The section 7 violation raised in both questions involves the operation of a certificate issued under s. 83 of the Act to deprive the

respondent of an appeal under s. 72(1)(b) of the Act. These questions raise two issues -- first, whether the substantive provisions violate

s. 7 and secondly, whether the procedure followed by the Review Committee results in a s. 7 violation. I will deal with these issues in

that order.

The practical significance of ss. 82.1 and 83 of the Act stems from their interaction with the rights of appeal from a s. 32(2) deportation

order provided by s. 72(1) of the Act. Section 72(1)(a) provides for a true appeal, based on any question of law or fact or mixed law and

fact. Under s. 72(1)(b), Parliament has granted a further appeal on the ground that "having regard to all the circumstances of the case,

the person should not be removed from Canada". This latter ground of appeal grants the Immigration Appeal Board discretion to quash

a deportation order notwithstanding the fact that the individual falls within one of the categories in s. 27(1) such that the deportation

order was properly made under s. 32(2). It thus allows for clemency from deportation on compassionate grounds.

Section 82.1 sets out the conditions which may give rise to an investigation by the Review Committee and the procedure to be

followed in such an investigation. In general terms the Solicitor General and the Minister of Employment and Immigration may make a

report to the Review Committee in respect of a permanent resident who has launched an appeal pursuant to s. 72(1)(b) where they are

of the opinion, based on security or criminal intelligence reports, that that person is likely to engage in organized crime, espionage, acts

of violence that might endanger the lives or safety of persons in Canada, or subversion by force of any government. In the case of the

respondent the joint report was based on s. 19(1)(d)(ii):

19. (1) . . .

(d) persons who there are reasonable grounds to believe will

. . .

(ii) engage in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in

furtherance of the commission of any offence that may be punishable under any Act of Parliament by way of indictment;

When the Review Committee receives such a joint report, it must conduct an investigation into the grounds on which it is based and

report to the Governor in Council. Where, after considering the report of the Review Committee, the Governor in Council is satisfied that