ГУЛаг Палестины

the person does fall within one of the categories in s. 82.1(2) (the categories pursuant to which the Ministers can make a joint report to

the Review Committee), he or she may direct the issuance of a certificate under s. 83. The effect of this certificate is to direct the

Immigration Appeal Board to dismiss any appeal made pursuant to s. 72(1)(b). In other words, the individual's appeal will be limited to

questions of fact or law or mixed fact or law.

Substantive Ground

The respondent submits that the impugned legislation is inconsistent with s. 7 of the Charter because it creates a process whereby

he is deprived, contrary to the principles of fundamental justice, of his right to appeal against deportation on the ground set out in

s. 72(1)(b). The necessary implication of this position is that it is a principle of fundamental justice that a permanent resident who is the

subject of deportation proceedings be afforded an appeal on all of the circumstances of the case. Otherwise it cannot be a violation of

principles of fundamental justice for Parliament to limit the availability of such an appeal. In my view s. 7 does not mandate the

provision of a compassionate appeal from a decision which, as I have already concluded, comports with principles of fundamental

justice.

Before a deportation order can be issued against a permanent resident, an inquiry must be conducted by an adjudicator to determine

whether the permanent resident does fall into one of the classes in s. 27(1). Section 72(1)(a) provides for an appeal from such a

deportation order on any question of law or fact or mixed law and fact. The decision of the Board is subject to appeal to the Federal

Court of Appeal on a question of law if leave is granted by that Court (s. 84 of the Act (now s. 83)). These rights of appeal offer ample

protection to an individual from an erroneous decision by the adjudicator. The question is whether principles of fundamental justice

require more than this. In order to answer this question it is necessary to consider the "nature, source, rationale and essential role" of the

right to appeal from deportation orders under the Act and the evolution of that right: Re B.C. Motor Vehicle Act, supra.

The Immigration Act, S.C. 1910, c. 27, did not provide any specific grounds of appeal. A person ordered deported could only resort to

the Minister who, under s. 19, had the authority to overturn a deportation order on unspecified grounds. The Immigration Act,

R.S.C. 1952, c. 325, provided for an immigration appeal board; however, appeals against deportation orders remained under the control

of the Minister. The appeal board heard only those appeals directed to it by the Minister and the Minister retained the power to confirm

or quash the appeal board's decision or substitute his decision as he deemed just and proper. The 1966 White Paper on Immigration

criticized the broad overriding power of the Minister with respect to appeals, and recommended that a reconstituted Immigration Appeal

Board have authority to deal conclusively with appeals against deportation orders except in "security cases". In 1967, the Immigration

Appeal Board Act, S.C. 1966-67, c. 90, established an independent Immigration Appeal Board. Section 11 provided for appeals on any

questions of law or fact or mixed law and fact. Section 15, for the first time, conferred upon the Board the power to stay or quash a

deportation order made against a permanent resident on the basis of all the circumstances of the case. However s. 21 provided that that

new power was still subject to the discretion of the Minister and the Solicitor General who could certify their opinion, based on security

or criminal intelligence reports, that it would be contrary to the national interest to permit such relief. In Prata v. Minister of Manpower

and Immigration, supra, Martland J. stated at p. 381:

The effect of s. 21 is to reserve to the Crown, notwithstanding the powers conferred upon the Board by the Act, the right, similar to the

prerogative right which existed at common law, to determine that the continued presence in Canada of an alien, subject to a deportation

order, would not be conducive to the public good.

The Immigration Appeal Board Act was repealed by the Immigration Act, 1976, s. 128. Section 72 of the Immigration Act, 1976

effectively consolidated ss. 11 and 15 of the former Immigration Appeal Board Act into one section setting out two separate grounds of

appeal. However in my view it did not change the nature of the decision that could be made by the Board "having regard to all the

circumstances of the case". That decision remained, as it had been under the 1967 Act, an exercise of discretion based on

compassionate grounds. Section 83 of the Immigration Act, 1976 continued to limit the availability of relief based on all the

circumstances of the case. Such an appeal had to be dismissed if the Minister and the Solicitor General certified their opinion that,