Upon receipt of the joint report, the Review Committee conducted the required investigation and a hearing was held on September 2
      and 3, 1987. Prior to this hearing the respondent was provided with a document entitled "Statement of Circumstances giving rise to the
      making of a Report by the Solicitor General of Canada and the Minister of Employment and Immigration to the Security Intelligence
      Review Committee", as well as two summaries of information. The first was a document entitled "Chronology of Information and
      Occurrences Relating to Giuseppe Chiarelli" and consisted of an extensive summary of surveillance of the respondent. The second
      document was entitled "Summary of Interpretation of Intercepted Private Communications relating to the murder of Domenic Racco".
      The first day of the hearing was held in camera and a summary of the evidence provided to the respondent. This summary indicated
      that evidence was led that the respondent, together with certain named individuals, was a member of a criminal organization which
      engaged in extortion and drug related activities, and further that the respondent personally took part in the extortion and drug related
      activities of the organization.
      At the second day of the hearing, the respondent attended with counsel. The "Statement of Circumstances", the "Chronology of
      Information" and the "Summary of Interpretation of Intercepted Private Communications" were placed before the Review Committee, as
      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
      Board of its power to allow the respondent's appeal on compassionate grounds. The resulting deportation necessarily implied an
      interference with the liberty of the person. In concluding that the respondent's rights under s. 7 of the Charter had been infringed, Pratte
      J.A. observed at p. 318 that "it is a requirement of fundamental justice that no decision be made determining the rights of a person
      without giving that person a meaningful opportunity to be heard". In order to have a meaningful opportunity to be heard, the respondent
      had to know the information before the Review Committee in order to be able to contradict it. The respondent had not been provided
      this opportunity and therefore the procedure followed by the Review Committee did not meet the requirements of fundamental justice.
      Pratte J.A. concluded, however, that this limitation could be justified under s. 1 of the Charter. Section 48(2) of the Canadian Security
      Intelligence Service Act ("CSIS Act") which denies a party the right to be informed of the evidence led by the other party imposes a
      reasonable limit in light of the need to protect the secrecy of police investigations of organized criminal activities. This was particularly
      the case in view of the fact that the Committee's investigation was not to determine the guilt of the respondent, but only whether he
      deserved to benefit from an appeal on purely compassionate grounds.
      Stone J.A. (Urie J.A. concurring)
      The majority agreed with Pratte J.A.'s reasons except that in their view, the violation of s. 7 could not be justified under s. 1 of the
      Charter. Although the interest of the state in protecting confidential police sources and techniques is of sufficient importance to warrant
      overriding constitutionally protected rights and the withholding of information is rationally connected to that objective, the majority
      concluded that the procedure enacted by s. 82.1(3) (now s. 81(4)) failed the remaining requirements of the proportionality test. Rather
      than balancing the state's interest in protecting confidential sources and techniques with the individual's interest in fundamental justice,
      it was the majority's view that the provision opts for a "complete obliteration" of the individual's right in favour of the state's interest.
      The Federal Court of Appeal answered the questions put to it as follows:
      1 Subparagraph 27(1)(d)(ii) and subsection 32(2) of the Immigration Act, 1976 do not infringe section 7, 12 or 15 of the Canadian
      Charter of Rights and Freedoms.
      2 Sections 82.1 and 83 of the Immigration Act, 1976 do not infringe section 12 or 15 of the Canadian Charter of Rights and Freedoms.
      The question whether those sections contravene section 7 of the Charter is not a question that the Board may refer to the Court
      pursuant to subsection 28(4) of the Federal Court Act.
      3 (a)The Board would, in relying upon the certificate issued pursuant to section 83 in respect of Mr. Chiarelli, violate Mr. Chiarelli's
      rights under section 7 of the Charter.
      (b)The violation of section 7 is not justified by section 1 of the Charter.
      IV.Issues
      The appellant was granted leave to appeal and the following constitutional questions were stated by Gonthier J.:
      1 (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 ss. 81
      and 82 of the Immigration Act, R.S.C., 1985, c. I-2) infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and
      Freedoms?
      (b) If the sections referred to above do infringe or deny the rights guaranteed by s. 7 of the Charter, are they justified by s. 1 of the
      Charter?
      2 (a) Does reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by
      S.C. 1984, c. 21, s. 84 (now s. 82 of the Immigration Act, R.S.C., 1985, c. I-2) filed in the respondent's case result in an infringement of
      his rights pursuant to s. 7 of the Charter, because the process followed by the Security Intelligence Review Committee did not meet the
      requirements of s. 7?
      (b) If reliance upon the certificate does infringe or deny the rights guaranteed by s. 7 of the Charter, is it justified by s. 1 of the
      Charter?
      The respondent in the main appeal was granted leave to cross-appeal, and the following constitutional questions were stated by
      Gonthier J.:
      1 (a) Do s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now s.
      27(1)(d)(ii) and s. 32(2) of the Immigration Act, R.S.C., 1985, c. I-2) infringe or deny the rights guaranteed by ss. 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 ss. 7, 12 and 15 of the Charter, are
      they justified by s. 1 of the Charter?
      The answers to these questions will dispose of the questions submitted to the Court of Appeal pursuant to s. 28(4) of the Federal Court
      Act with this exception. Question 2 at the Federal Court of Appeal corresponds to Question 1 in the main appeal but referred to s. 12 and
      s. 15 in addition to s. 7 of the Charter. Sections 12 and 15 were neither argued by the parties in this Court nor referred to in the
      constitutional questions. In the circumstances, I will not deal with them.
      V. Analysis
      The cross-appeal attacks the general scheme providing for deportation of permanent residents who have been convicted of certain
      criminal offences. The main appeal concerns the removal of a ground of appeal from a deportation order and the procedure by which
      that removal is effected. I will address the cross-appeal first. Throughout these reasons I will refer to Chiarelli as "the respondent" and
      the Minister as "the appellant", although their positions are actually reversed on the cross-appeal.
      1 Do s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, 1976 violate the Charter?
      Section 27(1) requires an immigration officer in possession of information that a permanent resident falls into one of its enumerated
      classes to forward a report setting out the details of that information to the Deputy Minister. The relevant class in this case is that set out
      in s. 27(1)(d)(ii), a person who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of five
      years or more may be imposed. An inquiry is then held by an adjudicator in cases where the Deputy Minister considers that one is
      warranted (s. 27(3)). Section 32(2) provides that where an adjudicator decides that a person who is the subject of an inquiry does fall
      within one of the classes in s. 27(1), the adjudicator shall, except in the case of a convention refugee, make a deportation order against
      that person.
      (a) Section 7
      The essence of the respondent's position is that ss. 27(1)(d)(ii) and 32(2) are contrary to principles of fundamental justice because
      they are mandatory and require that deportation be ordered without regard to the circumstances of the offence or the offender. The
      appellant correctly points out that the threshold question is whether deportation per se engages s. 7, that is, whether it amounts to a
      deprivation of life, liberty or security of the person. The Federal Court of Appeal in Hoang v. Canada (Minister of Employment
      Immigration) (1990), 13 Imm. L.R. (2d) 35, held that deportation for serious offences is not to be conceptualized as a deprivation of
      liberty. I do not find it necessary to answer this question, however, since I am of the view that there is no breach of fundamental justice.
      The principles of fundamental justice are to be found in the basic tenets of our legal system. Lamer J. (as he then was) stated in Re
      B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 513:
      Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis
      of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system, as it evolves.
      He recognized, at p. 513, that "principles of fundamental justice" could not be defined in the abstract but would have to be interpreted in
      the context of alleged violations:
      . . . those words cannot be given any exhaustive content or simple enumerative definition, but will take on concrete meaning as the
      courts address alleged violations of s. 7.
      The importance of a contextual approach to the interpretation of s. 7 was emphasized by Cory J. in R. v. Wholesale Travel Group
      Inc., [1991] 3 S.C.R. 154, at p. 226:
      It is now clear that the Charter is to be interpreted in light of the context in which the claim arises. Context is relevant both with respect
      to the delineation of the meaning and scope of Charter rights, as well as to the determination of the balance to be struck between
      individual rights and the interests of society.
      He noted that under a contextual approach, constitutional standards developed in the criminal context could not automatically be
      applied to regulatory offences. Similarly in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, McLachlin J. adopted at p. 848 a
      contextual approach which "takes into account the nature of the decision to be made". She concluded that in defining the fundamental
      justice relevant to extradition, the Court must draw upon the principles and policies underlying extradition law and procedure.
      Thus in determining the scope of principles of fundamental justice as they apply to this case, the Court must look to the principles
      and policies underlying immigration law. The most fundamental principle of immigration law is that non-citizens do not have an
      unqualified right to enter or remain in the country. At common law an alien has no right to enter or remain in the country: R. v. Governor
      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.
      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
      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