Chiarelli v. Minister of Employment and Immigration, (1992) 135 N.R. 161 (SCC)

• Judge: McLachlin, Stevenson and Iacobucci, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 26, 1992
• Jurisdiction: Canada (Federal)
• Citations: (1992), 135 N.R. 161 (SCC);135 NR 161;16 Imm LR (2d) 1;[1992] ACS no 27;32 ACWS (3d) 622;8 CRR (2d) 234;[1992] SCJ No 27 (QL);72 CCC (3d) 214;[1992] 1 SCR 711;1992 CanLII 87 (SCC);90 DLR (4th) 289;2 Admin LR (2d) 125;JE 92-511

Chiarelli v. MEI (1992), 135 N.R. 161 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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The Minister of Employment and Immigration (appellant) v. Joseph (Giuseppe) Chiarelli (respondent) and The Security Intelligence Review Committee (intervenor)

(21920)

Indexed As: Chiarelli v. Minister of Employment and Immigration

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-

Dubé, Sopinka, Gonthier, Cory,

McLachlin, Stevenson and Iacobucci, JJ.

March 26, 1992.

Summary:

During an appeal of a deportation order the Immigration Appeal Board referred the following constitutional questions to the Federal Court of Appeal under s. 28(4) of the Federal Court Act: (1) were ss. 27(1)(d)(ii) and 32(2) of the Immigration Act (re deportation of noncitizens convicted of an offence punishable by five years' imprisonment or more) contrary to ss. 7, 12 and 15 of the Charter and, if so, were they justified under s. 1; (2) were ss. 82.1 and 83 of the Act (re procedure leading to issuance of Minister's certificate) contrary to ss. 7, 12 and 15 of the Charter and, if so, were they justified under s. 1; and (3) did reliance on the certificate issued under s. 83 infringe Chiarelli's s. 7 Charter rights and, if so, was such denial of rights justified under s. 1.

The Federal Court of Appeal, Pratte, J.A., dissenting in part, in a judgment reported 107 N.R. 107, determined that ss. 27(1)(d)(ii) and 32(2) did not violate ss. 7, 12 or 15 of the Charter; ss. 82.1 and 83 did not violate s. 12 or 15; whether ss. 82.1 and 83 violated s. 7 was not a question that the Board could refer to the court under s. 28(4); the Board would, in relying on the s. 83 certificate, violate Chiarelli's s. 7 Charter rights; and the violation of s. 7 was not justified under s. 1 of the Charter. The Minister appealed. Chiarelli cross-appealed.

The Supreme Court of Canada allowed the appeal and dismissed the cross-appeal.

Aliens - Topic 1643

Exclusion and expulsion - Immigration - Deportation - Grounds - Criminal conviction - Sections 32(2) and 27(1)(d)(ii) of the Immigration Act required a deportation order where a permanent resident was convicted of a criminal offence for which imprisonment of five years or more could be imposed - The Supreme Court of Canada affirmed that ss. 32(2) and 27(1)(d)(ii) did not violate ss. 7 (principles of fundamental justice), 12 (cruel and unusual treatment or punishment) or 15 (equality rights) of the Charter of Rights and Freedoms.

Aliens - Topic 1799.2

Exclusion or expulsion - Deportation of persons in Canada - Deportation orders - Appeals - Compassionate grounds - [See second Civil Rights - Topic 8546 ].

Civil Rights - Topic 3831

Cruel and unusual treatment or punishment - What constitutes - Section 32(2) of the Immigration Act provided that where an adjudicator decided that a person was a permanent resident described in s. 27(1)(d)(ii) (convicted of criminal offence for which five years' imprisonment or more could be imposed), he "shall" make a deportation order against that person - The Supreme Court of Canada affirmed that deportation did not constitute cruel and unusual treatment or punishment under s. 12 of the Charter of Rights and Freedoms - Section 32(2) did not impose punishment and, if deportation was "treatment" it was certainly not cruel and unusual where continued residence was conditional on not being convicted of a criminal offence for which five years' imprisonment or more could be imposed.

Civil Rights - Topic 5662

Equality rights - Immigration - Deportations for criminal convictions - Sections 32(2) and 27(1)(d)(ii) of the Immigration Act combined to require a deportation order where a permanent resident was convicted of an offence for which imprisonment for five years or more could be imposed - The Supreme Court of Canada affirmed that ss. 32(2) and 27(1)(d)(ii) did not violate equality rights under s. 15 of the Charter - The Charter did not guarantee a permanent resident's right to remain in Canada equal to that of Canadian citizens.

Civil Rights - Topic 5662

Equality rights - Immigration - Minister's certificate (s. 83) - Section 72(1)(b) of the Immigration Act empowered the Immigration Appeal Board to allow a permanent resident's appeal from a deportation order on compassionate grounds - Section 83(2) required the Board to summarily dismiss a s. 72(1)(b) appeal where a Minister's certificate was issued stating that the resident was a person described in s. 19(1)(d) (likely to engage in future criminal conduct) - Sections 82.1 and 83(1) set out the procedural steps to obtaining a Minister's certificate - The Supreme Court of Canada affirmed that ss. 82.1 and 83 did not violate a permanent resident's equality rights under s. 15 of the Charter.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - Section 32(2) of the Immigration Act provided that where an adjudicator decided that a person was a permanent resident described in s. 27(1)(d)(ii) (convicted of criminal offence for which five years' imprisonment or more could be imposed), he "shall" make a deportation order against that person - The Supreme Court of Canada affirmed that deportation did not violate the principles of fundamental justice under s. 7 of the Charter - It was not unjust to deport a person in Canada conditionally and who breached those conditions.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - The issuance of a Minister's certificate under s. 83 of the Immigration Act following an inquiry by the Security Intelligence Review Committee precluded the Immigration Appeal Board from allowing a permanent resident's appeal from a deportation order on compassionate grounds - The Supreme Court of Canada, assuming without deciding that deportation was a deprivation of liberty, held that neither the procedure followed by the Committee nor the preclusion of an appeal on compassionate grounds constituted a denial of fundamental justice under s. 7 of the Charter.

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Principles of fundamental justice - [See both Civil Rights - Topic 8546 ].

Cases Noticed:

Hoang v. Minister of Employment and Immigration (1990), 120 N.R. 193; 13 Imm. L.R.(2d) 35 (F.C.A.), refd to. [para. 20].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; 48 C.R.(3d) 289, refd to. [para. 21].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161, refd to. [para. 22].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 22].

R. v. Governor of Pentonville Prison, [1973] 2 All E.R. 741, refd to. [para. 23].

Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376; 3 N.R. 484, refd to. [para. 23].

Reference Re Exercise of the Royal Prerogative of Mercy Upon Deportation Proceedings, [1933] S.C.R. 269, refd to. [para. 28].

Hurd v. Minister of Employment and Immigration, [1989] 2 F.C. 594; 90 N.R. 31 (F.C.A.), refd to. [para. 28].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321, refd to. [para. 29].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 44].

Syndicat des employés de production du Québec et de l'Acadie v. Commission canadienne des droits de la personne, [1989] 2 S.C.R. 879; 100 N.R. 241, refd to. [para. 45].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 45].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, refd to. [para. 46].

R. v. Secretary of State for the Home Department, ex parte Hosenball, [1977] 3 All E.R. 452 (C.A.), refd to. [para. 47].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277, refd to. [para. 47].

Ross v. Kent Institution (1987), 57 C.R.(3d) 79 (B.C.C.A.), refd to. [para. 47].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 12]; sect. 6, sect. 7, sect. 12, sect. 15 [para. 2].

Canadian Security Intelligence Service Act, S.C. 1984, c. 21, sect. 48(2) [para. 2].

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, sect. 28(4) [para. 8].

Immigration Act, S.C. 1976-77, c. 52, sect. 4(2)(a) [para. 2]; sect. 5 [para. 26]; sect. 19(1)(d)(ii), sect. 27(1)(d), sect. 27(3), sect. 27(4), sect. 32(2), sect. 72(1), sect. 82.1(1), sect. 82.1(2)(a), sect. 82.1(2)(c), sect. 82.1(3), sect. 82.1(4), sect. 82.1(5), sect. 82.1(6), sect. 83(1)(a), sect. 83(2) [para. 2].

Authors and Works Noticed:

Concise Oxford Dictionary (1990), generally [para. 28].

Counsel:

David Sgayias, Q.C., and Gerry N. Sparrow, for the appellant;

Irwin Koziebrocki and David Schermbrucker, for the respondent;

Simon Noël and Sylvie Roussel, for the intervenor.

Solicitors of Record:

John C. Tait, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Irwin Koziebrocki, Toronto, Ontario, for the respondent;

Noël, Berthiaume, Aubry, Hull, Quebec, for the intervenor.

This appeal and cross-appeal were heard on October 28, 1991, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci, JJ., of the Supreme Court of Canada.

On March 26, 1992, Sopinka, J., delivered the following judgment for the Supreme Court of Canada in both official languages.