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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
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