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.