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      The Immigration Appeal Board Act was repealed by the Immigration Act, 1976, s. 128.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,
      based on security or criminal intelligence reports, it would be contrary to the national interest to permit it. Finally in 1984 the Security
      Intelligence Review Committee was established by the CSIS Act. The Review Committee was assigned various functions under
      several Acts, including the Immigration Act, 1976. Section 83 was repealed and s. 82.1 and an amended version of s. 83 were
      substituted. Section 82.1 assigned to the Review Committee the task of investigating and reporting to the Governor in Council as to
      whether a permanent resident came within the classes of persons not entitled to an appeal on all the circumstances of the case.
      However, the decision as to whether to direct the issuance of a certificate under s. 83 is that of the Governor in Council.
      It can thus be seen that there has never been a universally available right of appeal from a deportation order on "all the
      circumstances of the case". Such an appeal has historically been a purely discretionary matter. Although it has been added as a
      statutory ground of appeal, the executive has always retained the power to prevent an appeal from being allowed on that ground in
      cases involving serious security interests.
      If any right of appeal from the deportation order in s. 32(2) is necessary in order to comply with principles of fundamental justice, a
      "true" appeal which enables the decision of the first instance to be questioned on factual and legal grounds clearly satisfies such a
      requirement. The absence of an appeal on wider grounds than those on which the initial decision was based does not violate s. 7.
      Procedural Ground
      The respondent submitted that his s. 7 rights were violated as a result of the procedure followed by the Review Committee. This
      argument was the basis for the judgment of the majority in the Court of Appeal. I have already concluded that the respondent can assert
      no substantive right to an appeal on compassionate grounds. It is entirely within the discretion of Parliament whether an appeal on this
      basis is provided. Accordingly, Parliament could have simply provided that a certificate could issue without any hearing. Does the fact
      that Parliament has legislated beyond its constitutional requirement to provide that a hearing will be held enable the respondent to
      complain that the hearing does not comport with the dictates of fundamental justice? It could be argued that the provision of a hearing
      ex gratia does not expand Parliament's constitutional obligations. I need not resolve this issue in this case because I have concluded
      that, assuming that proceedings before the Review Committee were subject to the principles of fundamental justice, those principles
      were observed.
      These proceedings took place within the framework of several legislative provisions and Review Committee Rules. Section 82.1(3)
      of the Immigration Act, 1976 provides that in an investigation by the Review Committee pursuant to a joint report by the Solicitor
      General and the Minister of Employment and Immigration, ss. 43, 44 and 48 to 51 of the CSIS Act apply, subject to certain specific
      modifications and with such other modifications as the circumstances require. Section 48(2) of the CSIS Act provides that no one is
      entitled as of right to be present during, to have access to or to comment on representations made to the Review Committee by any
      other person. Pursuant to s. 39(1) of the Act, the Review Committee adopted the "Rules of Procedure of the Security Intelligence
      Review Committee in Relation to its Function Under Paragraph 38(c) of the Canadian Security Intelligence Service Act". Rules 45 to 51
      set out the procedure relating to the making of representations under s. 48(2) of the CSIS Act. A party to an oral hearing may be
      represented by counsel, may call and examine witnesses and may make representations (Rule 48(1)). It is within the Committee's
      discretion to exclude from the hearing one or more parties during the giving of evidence or making of representations by another party
      (Rule 48(3)). It is also within the Committee's discretion, in balancing the requirements of preventing threats to the security of Canada
      and providing fairness to the person affected, to determine whether a party is entitled to cross-examine witnesses called by other parties
      (Rule 48(2)) and whether, if a party has been excluded from portions of the hearing, the substance of the evidence given or the
      representations made by the other party should be disclosed to that party (Rule 48(4)).
      The scope of principles of fundamental justice will vary with the context and the interests at stake. In R. v. Lyons, [1987] 2 S.C.R. 309,
      La Forest J., writing for the majority, stated at p. 361:
      It is clear that, at a minimum, the requirements of fundamental justice embrace the requirements of procedural fairness (see, e.g., the
      comments to this effect of Wilson J. in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 212-23). It is also
      clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are
      invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another.
      Similarly, the rules of natural justice and the concept of procedural fairness, which may inform principles of fundamental justice in a
      particular context, are not fixed standards. See: Syndicat des employйs de production du Quйbec et de l'Acadie v. Canada (Canadian
      Human Rights Commission), [1989] 2 S.C.R. 879, at pp. 895-96; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at
      p. 682.
      In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1
      S.C.R. 425, La Forest J. explained at p. 539 that in assessing whether a procedure accords with fundamental justice, it may be
      necessary to balance competing interests of the state and the individual:
      What these practices have sought to achieve is a just accommodation between the interests of the individual and those of the state,
      both of which factors play a part in assessing whether a particular law violates the principles of fundamental justice; see R. v. Lyons,
      [[1987] 2 S.C.R. 309], at pp. 327 and 329; R. v. Beare, [[1988] 2 S.C.R. 387], at pp. 403-5; also my reasons in R. v. Corbett, [1988] 1
      S.C.R. 670, at p. 745 (dissenting on another point); see also R. v. Jones, [1986] 2 S.C.R. 284, at p. 304, per La Forest J. (Dickson C.J.
      and Lamer J. concurring). The interests in the area with which we are here concerned involve particularly delicate balancing. . . .
      In the context of hearings conducted by the Review Committee pursuant to a joint report, an individual has an interest in a fair
      procedure since the Committee's investigation may result in its recommending to the Governor in Council that a s. 83 certificate issue,
      removing an appeal on compassionate grounds. However, the state also has a considerable interest in effectively conducting national
      security and criminal intelligence investigations and in protecting police sources. The need for confidentiality in national security cases
      was emphasized by Lord Denning in R. v. Secretary of State for the Home Department, ex parte Hosenball, [1977] 3 All E.R. 452 (C.A.),
      at p. 460:
      The information supplied to the Home Secretary by the Security Service is, and must be, highly confidential. The public interest in
      the security of the realm is so great that the sources of information must not be disclosed, nor should the nature of the information itself
      be disclosed, if there is any risk that it would lead to the sources being discovered. The reason is because, in this very secretive field,
      our enemies might try to eliminate the source of information.
      On the general need to protect the confidentiality of police sources, particularly in the context of drug-related cases: see R. v. Scott,
      [1990] 3 S.C.R. 979, at pp. 994-95. See also Ross v. Kent Inst. (1987), 57 C.R. (3d) 79, at pp. 85-88 (B.C.C.A.), in which that court held
      that it is not essential in order to comply with principles of fundamental justice that an inmate know the sources of information before the
      Parole Board as long as he is informed of the substance of that information.
      The CSIS Act and Review Committee Rules recognize the competing individual and state interests and attempt to find a reasonable
      balance between them. The Rules expressly direct that the Committee's discretion be exercised with regard to this balancing of
      interests.
      In this case the respondent was first provided with the "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". This
      document set out the nature of the information received by the Review Committee from the Ministers, including that the respondent had
      been involved in drug trafficking, and was involved in the murder of a named individual. Also prior to the Review Committee hearing,
      the respondent was provided with an extensive summary of surveillance of his activities (the "Chronology of Information") and a
      "Summary of Interpretation of Intercepted Private Communications relating to the murder of Domenic Racco". Although the first day of
      the hearing was conducted in camera, the respondent was provided with a summary of the evidence presented. In my view, these
      various documents gave the respondent sufficient information to know the substance of the allegations against him, and to be able to
      respond. It is not necessary, in order to comply with fundamental justice in this context, that the respondent also be given details of the
      criminal intelligence investigation techniques or police sources used to acquire that information.
      The respondent was also given the opportunity to respond, by calling his own witnesses or by requesting that he be allowed to
      cross-examine the RCMP witnesses who testified in camera. The Chairman of the Review Committee clearly indicated an intention to
      allow such cross-examination:
      Certainly, it would be my inclination that if the RCMP wish to call witnesses in support of any or all of the comments that they may
      make in support of the Statement of Circumstances, there would be the opportunity for the applicant's counsel to cross-examine.
      The respondent chose not to exercise these options. Having regard to the information that was disclosed to the respondent, the
      procedural opportunities that were available to him, and the competing interests at play in this area, I conclude that the procedure
      followed by the Review Committee in this case did not violate principles of fundamental justice.
      VI. Conclusion
      I would therefore allow the appeal, dismiss the cross-appeal, both with costs, and answer the constitutional questions as follows:
      Main Appeal
      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?
      Answer:Assuming without deciding that s. 7 applies, the answer is no.
      (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?
      Answer:This question does not have to be answered.
      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?
      Answer: Assuming without deciding that s. 7 applies, the answer is no.
      (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?
      Answer:This question does not have to be answered.
      Cross-Appeal
      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?
      Answer:With respect to s. 15, the answer is no. Assuming, without deciding, that either s. 7 or s. 12 apply, the answer is no.
      (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?
      Answer:This question does not have to be answered.
      Appeal allowed and cross-appeal dismissed. With respect to the main appeal, assuming without deciding that s. 7 is applicable,
      ss. 82.1 and 83 of the Immigration Act, 1976, do not infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and
      Freedoms and reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, did not result in an infringement of s. 7
      having regard to the process followed by the Security Intelligence Review Committee. With respect to the cross-appeal, the requirement
      that persons convicted of an offence carrying a maximum punishment of five years or more be deported, without reference to the
      circumstances of the offence or the offender, does not offend s. 15, or ss. 7 or 12 assuming without deciding that these sections applied.
      Solicitor for the appellant: John C. Tait, Ottawa.
      Solicitor for the respondent: Irwin Koziebrocki, Toronto.
      Solicitors for the intervener: Noлl, Berthiaume, Aubry, Hull.
      The official versions of decisions and reasons for decision by the Supreme
      Court of Canada are published in the Supreme Court Reports (S.C.R.). This site is
      prepared and published by LexUM in partnership with Supreme Court of Canada.
      & IMMIGRATION AND REFUGEE PROTECTION ACT
      INTRODUCED
      OTTAWA, February 21, 2001 -- Elinor Caplan, Minister of Citizenship and
      Immigration, today tabled the Immigration and Refugee Protection Act in the House
      of Commons, reaffirming her commitment to be tough on criminals while
      strengthening efforts to attract skilled immigrants.
      The new bill incorporates a number of recent proposals from Canadians, yet
      maintains the core principles and provisions of Bill C-31, the immigration legislation
      introduced prior to last fall's general election.
      The Minister said the legislation reintroduces severe penalties -fines of up to
      $1 million and life in prison -- for people smugglers and traffickers, speeds up
      family reunification, and maintains Canada's humanitarian tradition of providing safe
      haven to people in need of protection.
      "By saying 'No' more quickly to people who would abuse our rules, we are able to
      say 'Yes' more often to the immigrants and refugees Canada will need to grow and
      prosper in the years ahead," said Minister Caplan.
      The bill reintroduces key measures to strengthen the integrity of the refugee
      determination system. These include front-end security screening for all claimants,
      clearer grounds for detention, fewer appeals and opportunities for judicial review to
      delay the removal of serious criminals, and suspension of refugee claims for people
      charged with serious crimes until the courts have rendered a decision.
      The legislation reaffirms the commitment to faster but fair decisions on refugee
      claims by consolidating several current steps and criteria into a single protection
      decision to be made by the Immigration and Refugee Board, and by combining the
      increased use of single-member panels with an internal paper appeal before the
      Board.
      In addition, the new bill reintroduces a number of key provisions designed to
      expand the admission of workers with the skills that are most acutely needed in
      Canada.
      The key changes that have emerged from discussions of Bill C-31 and that were
      introduced today include:
      The inclusion of the definition of permanent resident in the Act;
      Provisions within the bill that reinforce the government's commitment to
      gender equality and clarify that parents are members of the family class;
      An oral appeal hearing for people facing a loss of permanent resident status
      for failure to maintain residency;
      Improved safeguards for people in need of protection:
      unsuccessful repeat refugee claimants will be eligible for a
      pre-removal risk assessment (PRRA) if they return to Canada after
      six months (as opposed to one year);
      discretion for oral PRRA in exceptional circumstances;
      protected people whose identities have been established will be
      eligible to apply for Canadian refugee travel documents;
      The requirement of a warrant to arrest refugees and permanent residents for
      any immigration matter.
      The principle that children will be detained only as a last resort.
      The Minister promised supporting regulations over the coming months, which will
      include a strengthened overseas refugee resettlement program, an expanded family
      class, new selection criteria to attract more highly skilled and adaptable
      independent immigrants, and the creation of an "in-Canada" landing class for
      temporary workers, foreign students and spouses already established in Canada
      and wishing to stay.
      The expanded family class will increase the age at which a dependent child can be
      sponsored from under 19 to under 22 and allow spouses and children to apply for
      permanent residence from within Canada. The Minister also expressed willingness
      to pursue discussions with the provinces over additional ways to expand the family
      class.
      The new legislation will replace the current Immigration Act, which was first passed
      in 1976 and which has been amended more than 30 times. Work on the new
      legislation began in 1997 and has evolved through extensive consultations with the
      provinces, the territories, the legal community, non-governmental organizations and
      the general public.
      - 30
      For Information:
      Derik Hodgson
      Press Secretary
      Minister's Office
      (613) 954-1064
      Renй Mercier
      Media Relations
      Communications Branch
      (613) 941-7042
      Backgrounder # 1
      Changes from Bill C-31
      In response to Bill C-31, the government received submissions from the Canadian
      Bar Association, the United Nations High Commissioner for Refugees, the
      Canadian Council for Refugees and many others. The Minister has listened and
      responded.
      Framework Legislation
      What we heard:
      The government should ensure that all key principles and core policies are
      reflected in the Act and not in the regulations. The regulations should be
      limited to matters related to the implementation of policy.
      Our response:
      1.The new bill places greater emphasis on key principles, including:
      The principles of equality and freedom from discrimination.
      The principle that minor children should be detained only as a last
      resort.
      The principle of equality of status for both official languages.
      2.The new bill also includes the following provisions previously intended to be
      prescribed by regulation:
      The provision that parents are members of the family class.
      The provision that sponsored spouses, partners and dependent
      children of immigrants and refugees and their dependents will not be
      refused admission to Canada on the grounds that they would create
      an excessive demand on the medical system.
      3.The new bill also reinforces the government's commitment to gender
      equality and provisions for opposite- and same-sex couples.
      Provisions Affecting Permanent Residents
      What we heard:
      Permanent residents should have a separate, defined status that clearly
      specifies their rights and obligations, including the right to enter Canada.
      Loss of status determinations should be made only through an oral appeal
      to the Immigration and Refugee Board (IRB).
      Our response:
      The new bill enhances the rights of permanent residents by:
      Including a separate definition for permanent residents that highlights the
      distinction between permanent residents and other foreign nationals.
      Ensuring the right to an oral hearing before the IRB in the case of appeals
      on the loss of permanent resident status.
      Ensuring facilitated entry for permanent residents without a valid permanent
      resident card if they have been outside Canada for less than one year.
      Setting a higher threshold for examinations for permanent residents than for
      other foreign nationals.
      Requiring a warrant to arrest a permanent resident for any immigration
      matter.
      Access to the Refugee Determination System
      What we heard:
      Access to the refugee determination system is too restrictive and would
      deny access to people convicted of politically trumped-up charges. Others
      who are excluded from the IRB procedures may be denied access to a fair
      risk assessment upon return to their country of origin.
      Our response:
      The possibility of politically trumped-up charges will be considered by the
      IRB, except in cases where the Minister finds the person to be a danger to
      the public.
      The new bill clarifies that unsuccessful refugee claimants, refugees who
      have withdrawn or abandoned their claims, and refugees excluded from the
      IRB process will have access to a pre-removal risk assessment prior to
      removal.
      The risk review may provide for an oral hearing, depending on the complexity
      of the case.
      Repeat claimants will have access to the risk review after six months
      instead of one year.
      People refused resettlement overseas will have access to the IRB
      determination system should they later apply from within Canada.
      Other Amendments to Respond to Stakeholder Submissions
      The time limit for filing leave for judicial review of overseas decisions is
      prolonged from 15 to 60 days.
      Convention refugees and protected people whose identities have been
      established will be provided with a document indicating their status and
      making them eligible to apply for refugee travel documents.
      - 30
      2001-03
      Backgrounder # 2
      Making the System Work Better
      For Immigrants
      Improving Client Service
      What we are doing:
      Piloting new approaches to overseas processing.
      Introducing new technology: the Global Case Management System.
      Why we are doing it:
      To ensure faster processing, quality decisions and increased transparency.
      Clearing up Backlogs and Managing the Inventory
      What we are doing:
      Designating new funds to clear up backlogs.
      Improving the management of the inventory of applications for permanent
      residence and for immigration visas abroad.
      Introducing the Multi-year Planning Process.
      Why we are doing it:
      To serve Canadians, permanent residents and potential immigrants faster
      and more effectively.
      To enable the program to move toward immigration levels of one percent of
      the population.
      Expanding the Family Class
      What we are doing:
      Broadening the definition of "dependent child" by increasing the age from
      under 19 to under 22.
      Opening up adoption provisions in keeping with the principle of the best
      interests of the child.
      Modernizing the definition of "family" to include common-law and same-sex
      partners.
      Why we are doing it:
      To reflect the high value Canadians place on the family.
      To maintain and enhance the family class as an important component of the
      overall program.
      To reflect the changing nature of social relationships in Canada.
      Facilitating Family Reunification
      What we are doing:
      Creating an in-Canada landing class for sponsored spouses and partners for
      both immigrants and refugees.
      Exempting sponsored spouses, partners and dependent children from the
      admission bar with regard to excessive demand on health or social services.
      Reducing the age at which Canadian citizens and permanent residents are
      eligible to sponsor from 19 to 18.
      Including "parent" in the definition of family class within the Act.
      Reducing the length of the sponsorship requirement from 10 years to 3
      years for spouses and common-law opposite- and same-sex partners.
      Why we are doing it:
      To make it easier for families to be reunited as soon as possible.
      Incorporating the Best Interests of the Child
      What we are doing:
      Incorporating the principle of the best interests of the child in appropriate
      provisions of the Immigration and Refugee Protection Act.
      Why we are doing it:
      To uphold our international commitments as a signatory to three United
      Nations conventions on the rights of the child.
      To reflect the high value Canadians place on the well-being of children.