Читаем ГУЛаг Палестины полностью

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 Section 83 was repealed and s. 82.1 and an amended version of s. 83 were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