A-1065-88
Nicoghas Moumdjian (Applicant)
v.
Security Intelligence Review Committee, the Attorney General of Canada, the Minister of Employment and Immigration and the Solicitor General (Respondents)
and
Canadian Civil Liberties Association (Intervener)
Indexed as: Moumdjianv. Canada (Security Intelligence Review Committee) (C.A.)
Court of Appeal, Stone, Robertson and Sexton JJ.A. "Ottawa, May 27 and July 19, 1999.
Administrative law -- Judicial review -- Security Intelligence Review Committee report and conclusion subject to judicial review as "decision or order" within meaning of Federal Court Act, s. 28 -- Meaning of "decision or order" depending on statutory context in which advisory decision made, having regard to effect of decision on rights and liberties of those seeking judicial review.
Federal Court jurisdiction -- Appeal Division -- Jurisdiction in Court to review Security Intelligence Review Committee report and conclusion as "decision or order" within meaning of Federal Court Act, s. 28.
Security intelligence -- SIRC report and conclusion subject to judicial review as "decision or order" within meaning of Federal Court Act, s. 28 -- S.C.C. decision in Chiarelli v. Canada (Minister of Employment and Immigration) followed: SIRC procedures not infringing Charter, s. 7 rights of applicant as no breach of principles of fairness and fundamental justice therein.
Constitutional law -- Charter of rights -- Life, liberty and security -- S.C.C. decision in Chiarelli v. Canada (Minister of Employment and Immigration) followed: SIRC procedures not infringing Charter, s. 7 rights of applicant as no breach of principles of fairness and fundamental justice therein -- Assuming standard of reasonableness applicable, SIRC's conclusion not unreasonable as sufficient evidence in support thereof.
Constitutional law -- Charter of rights -- Criminal process -- Deportation not cruel and unusual treatment: Chiarelli v. Canada (Minister of Employment and Immigration) -- Hard to imagine public standards of decency would be outraged by applicant's deportation where reason therefor fact represents danger to Canadians.
Constitutional law -- Charter of rights -- Fundamental freedoms -- Applicant not deported because of membership in terrorist organization but for consorting with members of terrorist organization engaged in unlawful activities in which applicant reasonably likely to participate.
The applicant, a Lebanese of Armenian parentage, became a landed immigrant in Canada in October 1979. In October 1987, the Security Intelligence Review Committee (SIRC) forwarded a statement of circumstances summarizing allegations that the applicant was a member of the Armenian militia in Lebanon; that he had previously been involved with terrorist groups associated with the Armenian Secret Army for the Liberation of Armenia (ASALA); that he was associated with three men who were convicted of conspiracy to murder a Turkish diplomat in 1982; that he acquired goods of a type used in the production of explosive devices; and that he believes in the indiscriminate use of violence in the furtherance of political ends. At the hearing portion of the investigation, a SIRC member informed the applicant that the vast majority of the case contained information subject to national security concerns and that he and his counsel would be excluded from time to time but would be provided with summaries of most of the in camera evidence. In October 1988, SIRC concluded that the applicant was a person who there were reasonable grounds to believe would engage in activity that constitutes a threat to the security of Canada and recommended that a certificate be issued by the Governor General in Council under subsection 40(1) of the Immigration Act, 1976, which would lead to the applicant's ultimate deportation from Canada.
This was an application for judicial review of that decision on the basis of four issues: (1) that the SIRC's procedures violated section 7 of the Charter; (2) that the combined operation of the Canadian Security Intelligence Act and sections 32, 39 and 40 of the Immigration Act violated sections 7 and 12 of the Charter; (3) that paragraph 19(1)(g) of the Immigration Act was unconstitutional because it violated paragraph 2(d) of the Charter; and (4) that the SIRC decision was unreasonable. There also arose a preliminary issue as to the Court's jurisdiction to entertain this application for judicial review on the ground that the SIRC decision did not constitute a "decision or order" within the meaning of section 28 of the Federal Court Act as it read prior to the 1992 amendments.
Held, the application should be dismissed.
Even though there is no doubt that SIRC's decision is not binding on the Governor in Council, which has yet to act on that decision, the report and conclusion of the SIRC is a "decision or order" within the meaning of subsection 28(1) of the Federal Court Act as it read at the relevant time. Case law reveals that the term "decision or order" has no fixed or precise meaning but, rather, depends upon the statutory context in which the advisory decision is made, having regard to the effect which such decision has on the rights and liberties of those seeking judicial review.
(1) The applicant argued that SIRC's failure to make proper disclosure to him of the circumstances giving rise to the SIRC report (documentary and forensic evidence) and refusal to allow him an opportunity to respond accordingly at the hearing deprived him of his right to life, liberty and security of the person in violation of section 7 of the Charter and violated the principles of fairness and fundamental justice. The Supreme Court of Canada decision in Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 was followed. There was no need to address the argument that section 7 rights were infringed by the SIRC procedures, since there was no breach of fundamental justice herein (as in Chiarelli). The legislative framework gives SIRC a tremendous amount of discretion in balancing fairness to the person affected with the requirement of preventing threats to national security. Since the scope of fundamental justice is not fixed, but varies according to the context and the interests at stake, the legislative context and the competing interests of the applicant and the state were considered. The state's interest in confidentiality is paramount in national security cases. In this case, as in Chiarelli, the applicant has received sufficient information to know the substance of the allegations against him, and to be able to respond.
(2) Given that the procedure herein was the same as in Chiarelli, the Court's comments with respect to the applicant's section 7 arguments must be adopted in their entirety. Since a finding has been made by SIRC that the applicant breached an essential condition of remaining here, and since such finding comports with the principles of fundamental justice, the applicant's section 7 argument must fail. With respect to the section 12 argument, since deportation was found not to be cruel and unusual in Chiarelli, a substantially similar case to the one under review, the applicant cannot succeed on this ground, even if deportation could be characterized as "treatment". The deportation herein has to do with the fact that the applicant represents a danger to Canadians. Given this conclusion, it is hard to imagine that public standards of decency would be outraged by the applicant's deportation, if such event occurs. Presumably, Canadians would be outraged if a permanent resident could not be deported where there are reasonable grounds to believe that he or she represents a threat to the lives or safety of persons in Canada.
(3) The applicant argued that the portion of paragraph 19(1)(g) of the Immigration Act referring to persons who are members of an organization likely to engage in acts of violence was unconstitutional because it violated paragraph 2(d) of the Charter. Prohibiting mere membership in certain organizations was "grossly over inclusive", he argued. However, this was not a case in which the applicant was to be deported because he was a member of a terrorist organization; this was a case in which the applicant was to be deported for consorting with members of a terrorist organization engaged in unlawful activities in which the applicant was reasonably likely to participate.
(4) It represents an extraordinary situation for the Court in judicial review proceedings to review the work of a tribunal, the full record of which is not available. Yet this is the situation authorized by Parliament under the CSIS Act and SIRC rules made under the Act. Assuming that it is appropriate to review SIRC's decision on a standard of reasonableness, SIRC did not come to an unreasonable conclusion respecting the applicant. There was clearly sufficient evidence before SIRC to enable it to reach the conclusion that there are reasonable grounds to believe that the applicant is likely to participate in the unlawful activities of an impugned organization.
| statutes and regulations judicially considered |
| Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 38(1), 39(1). |
| Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 2(d), 7, 12. |
| Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23. |
| Criminal Code, R.S.C. 1970, c. C-34. |
| Federal Court Act, R.S.C., 1985, c. F-7, s. 28 (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 61). |
| Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(g), 32(2) (as am. by S.C. 1992, c. 49, s. 21), 39(2) (as am. idem, s. 29), (3), (4) (as am. idem), (5),(6), (9),(10), 40(1) (as am. idem, s. 30), (2), 81, 82. |
| Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 19(1)(d)(ii), (g), 27(1)(d)(ii), 39(2)(a), 40(1), 82.1 (as enacted by S.C. 1984, c. 21, s. 84), 83 (as am. idem). |
| Indian Act, R.S.C., 1985, c. I-5, s. 79. |
| cases judicially considered |
| followed: |
| Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161. |
| applied: |
| Anheuser-Busch, Inc. v. Carling O'Keefe Breweries of Canada Limited, [1983] 2 F.C. 71; (1982), 142 D.L.R. (3d) 548; 69 C.P.R. (2d) 136; 45 N.R. 126 (C.A.); Canadian Tobacco Manufacturers' Council v. National Farm Products Marketing Council, [1986] 2 F.C. 247; (1986), 26 D.L.R. (4th) 677; 19 Admin. L.R. 99; 65 N.R. 392 (C.A.); Saulnier v. Quebec Police Commission, [1976] 1 S.C.R. 572; (1975), 57 D.L.R. (3d) 545; 6 N.R. 541. |
| not followed: |
| Bear v. Canada (Minister of Indian & Northern Affairs) (1988), 33 Admin. L.R. 147; [1989] 1 C.N.L.R. 45; 99 N.R. 132 (F.C.A.); Penner v. Electoral Boundaries Commission (Ont.), [1977] 2 F.C. 58 (T.D.). |
| distinguished: |
| Al Yamani v. Canada (Solicitor General), [1996] 1 F.C. 174; (1995), 129 D.L.R. (4th) 226; 32 C.R.R. (2d) 295; 103 F.T.R. 105; 31 Imm. L.R. (2d) 191 (T.D.). |
| considered: |
| R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; (1991), 84 D.L.R. (4th) 161; 67 C.C.C. (3d) 193; 38 C.P.R. (3d) 451; 8 C.R. (4th) 145; 7 C.R.R. (2d) 36; 130 N.R. 1; 49 O.A.C. 161; Moumdjian v. Security Intelligence Review Committee et al. (1995), 95 F.T.R. 35 (F.C.T.D.); confd Moumdjian v. Canada (Security Intelligence Review Committee) (1997), 6 Admin. L.R. (3d) 239; 221 N.R. 188 (F.C.A.); Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; (1989), 59 D.L.R. (4th) 416; 26 C.C.E.L. 85; 89 CLLC 14,031; 93 N.R. 183. |
| referred to: |
| R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045; (1987), 40 D.L.R. (4th) 435; [1987] 5 W.W.R. 1; 15 B.C.L.R. (2d) 273; 34 C.C.C. (3d) 97; 58 C.R. (3d) 193; 31 C.R.R. 193; 75 N.R. 321. |
APPLICATION for judicial review of the Security Intelligence Review Committee decision which concluded that the applicant was a person described in paragraph 19(1)(g) of the Immigration Act, 1976 and recommended that a certificate be issued under subsection 40(1) of the Act, which would lead to the applicant's ultimate deportation from Canada. Application dismissed.
| appearances: |
| Paul D. Copeland and Tammy Duncan for applicant. |
| Michael F. Ciavaglia and Kathleen McManus for respondents (except SIRC). |
| Sylvie Roussel for respondent SIRC. |
| David Sherriff-Scott for intervener. |
| solicitors of record: |
| Copeland Campbell, Toronto, for applicant. |
| Deputy Attorney General of Canada for respondents (except SIRC). |
| Noël et Associés, Hull, Quebec, for respondent SIRC. |
| Scott & Aylen, Ottawa, for intervener. |
The following are the reasons for judgment rendered in English by
[1]Robertson J.A.: The applicant seeks judicial review of the Security Intelligence Review Committee (SIRC) decision dated October 17, 1988, which concluded that he is a person described in paragraph 19(1)(g) of the Immigration Act, 1976 [S.C. 1976-77, c. 52]; that is, a person who there is reasonable grounds to believe is likely to engage in acts of violence that would or might endanger the lives or safety of persons in Canada, or is likely to participate in the unlawful activities of an organization that is likely to engage in such acts. The SIRC also recommended that a certificate be issued by the Governor in Council under subsection 40(1) of the Immigration Act, 1976, which would lead to the applicant's ultimate deportation from Canada.
[2]In an effort to remain in Canada, the applicant challenges the conclusion reached by the SIRC, as well as the process undertaken by it in reaching its conclusion. In the reasons that follow, I conclude that this Court does possess the jurisdiction to hear this judicial review application, but that the application should be dismissed substantially for the reasons given by the Supreme Court in Chiarelli v. Canada (Minister of Employment and Immigration).1
THE FACTS
[3]Nicoghas Moumdjian (the applicant) is a Lebanese citizen of Armenian parentage who became a landed immigrant in Canada in October 1979. He applied for Canadian citizenship in 1983, but his application was delayed due to the proceedings in issue. In 1986, the Solicitor General of Canada and the Minister of Employment and Immigration (the Minister) submitted a report to the SIRC pursuant to paragraph 39(2)(a) of the Immigration Act, 1976, in which they alleged that the applicant is a person described in paragraph 19(1)(g) of the Immigration Act, 1976. On October 15, 1986, the SIRC advised the applicant that it was investigating the matter, and on October 5, 1987, it forwarded an amended statement of circumstances to the applicant to inform him of the case against him. The statement of circumstances summarized the allegations against the applicant, namely, that he was a member of the Armenian militia in Lebanon; that he had a close and active involvement between 1981 and 1985 with terrorist groups associated with the Armenian Secret Army for the Liberation of Armenia (ASALA); that he was associated with three men who were convicted of conspiracy to commit murder of Turkish diplomat Kani Gungor in 1982; that he acquired goods of a type used in the production of explosive devices; and that he believes in the indiscriminate use of violence in the furtherance of political ends.
[4]On October 27, 1987, a single member of the SIRC, the Honourable Saul Cherniak (the Chairman), commenced the hearing portion of the investigation into the Minister's report. Nine days of hearings were conducted before the SIRC in October 1987 and May 1988, of which five complete or partial days were held in camera. At the outset of the hearing, the SIRC and counsel for the parties discussed the procedure to be followed. The applicant was informed that the vast majority of the case contained information which is subject to national security concerns; therefore, he and his counsel would be excluded from time to time. However, the applicant and his counsel were advised that the Chairman and his counsel would question and cross-examine those witnesses that the applicant and his counsel would not hear, but that they would be provided with summaries of most of the in camera evidence.
[5]The summaries reveal that the SIRC received evidence about, inter alia, the nature of the ASALA, the applicant's association with three people who were convicted of attempted extortion and conspiracy to commit murder, and the applicant's presence at a meeting in Kingston on January 24, 1982, at which time the proposed assassination was discussed. The summaries also reveal that the SIRC heard evidence that a product called "Quick Start" was used in a January 13, 1982 bombing at the Turkish Honorary Consul's office in Toronto (the Baxter bombing), for which the ASALA claimed credit, and that the applicant had been observed purchasing this product on July 17, 1982.
[6]The applicant testified at the hearing. He admitted to having been a member of the Armenian militia in Lebanon and, while in Canada, to painting slogans on stop signs and confronting someone at a Turkish cultural event, for which he was convicted of mischief and granted a conditional discharge. He also admitted to having purchased Quick Start, but claims that he did so six months after the Baxter bombing, and for the sole purpose of starting cars. He denied the remaining allegations.
[7]At the conclusion of the hearing, the SIRC adjourned and requested that the parties submit written representations. Counsel for the applicant and for the Canadian Security Intelligence Service (CSIS) subsequently forwarded written representations to the SIRC. CSIS's arguments consisted of an "open" part, which was made available to the applicant, and a "closed" part, which was not disclosed to the applicant, and which contained references to the in camera testimony.
THE SIRC DECISION
[8]On October 17, 1988, the SIRC submitted a report to the Governor in Council, which concluded that the applicant is a person described in paragraph 19(1)(g) of the Immigration Act, 1976, and recommended that a certificate be issued under subsection 40(1) of the Immigration Act, 1976. That portion of the SIRC's decision which was forwarded to the applicant states:
Having considered all the evidence, I believe that Mr. Moumdjian was involved in acts of violence in the past. However, he has made no such admission, nor has he shown any indication of regret or any sign of a change of heart. Also pertinent is the fact that conditions underlying past acts of violence by representatives of ASALA continue to exist. Based on my investigation and compelling CSIS evidence, I have come to the conclusion that he comes within the class of persons described in section 19(1)(g) of the Immigration Act.
I have reasonable grounds to believe that Mr. Moumdjian will engage in activity that constitutes a threat to the security of Canada. I conclude, therefore, that a certificate should be issued under subsection 40(1) of the Immigration Act.
THE LITIGATION
[9]On October 27, 1988, the applicant filed an originating notice under section 28 of the Federal Court Act (as it then read) [R.S.C., 1985 c. F-7 (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 61)] seeking judicial review of the SIRC decision. On January 13, 1989, the Attorney General of Canada applied to vary the case upon which this Court would decide that application, specifically, by excluding material from review by this Court on the grounds of national security and Cabinet confidence. The applicant subsequently brought a motion under subsection 38(1) of the Canada Evidence Act [R.S.C., 1985, c. C-5] to have the in camera evidence before the SIRC disclosed to him in light of his section 28 application. At the hearing, counsel for the applicant indicated that the applicant only sought an order allowing disclosure of the confidential information to this Court for the purpose of the judicial review application, rather than to himself. Justice Rothstein (then of the Trial Division) was designated by the Chief Justice of this Court to decide whether the Attorney General's objection to the disclosure of evidence could be sustained. Justice Rothstein exercised his discretion to examine the confidential information, which had been colour-coded according to the SIRC's six rationales for not disclosing the information. In dismissing the applicant's motion on April 25, 1995, Justice Rothstein noted that the SIRC had taken a "very proactive position . . . in favour of as much disclosure as possible".2 Nevertheless, Justice Rothstein concluded that the documents should not be disclosed, since the requirement of confidentiality for national security reasons outweighed the public interest in disclosure.
[10]An appeal to this Court from Justice Rothstein's decision was argued in conjunction with the motion by the Attorney General to vary the contents of the case. Justice Stone, writing for a unanimous panel, dismissed the applicant's appeal on November 17, 1997, and allowed the motion to vary on November 28, 1997. Justice Stone found that the Trial Judge had not committed an error of law in refusing disclosure which would justify this Court's intervention; rather, he had undertaken "a most careful examination" of the confidential information and was guided by the jurisprudence. Justice Stone noted that "it was for Rothstein J. as the designated judge to determine in the first instance whether any of the disputed information should be disclosed for the purpose of the judicial review application";3 whereas, his role was simply to decide if Justice Rothstein's decision revealed an error. Justice Stone also noted that this Court would not have the full text of the SIRC report before it on judicial review in any case, since that report is a confidence of the Queen's Privy Council within the meaning of subsection 39(1) of the Canada Evidence Act; thus, it can never be disclosed in its entirety.
THE ISSUES
[11]The applicant seeks judicial review of the SIRC decision on the basis of four issues. First, the applicant argues that the SIRC's procedures violate section 7 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], and that such procedures are not in accordance with the principles of fairness and fundamental justice. Second, it is argued that the combined operation of the Canadian Security Intelligence Service Act [R.S.C., 1985, c. C-23] and sections 32 [as am. by S.C. 1992, c. 49, s. 21], 39 [as am. idem, s. 29] and 40 [as am. idem, s. 30] of the Immigration Act [R.S.C., 1985, c. I-2] violates sections 7 and 12 of the Charter and is not saved by section 1. Third, the applicant argues that paragraph 19(1)(g) of the Immigration Act is unconstitutional because it violates paragraph 2(d) of the Charter and is not saved by section 1. Lastly, the applicant submits that the SIRC decision was "unreasonable".
[12]At the hearing before this Court, however, a preliminary issue arose as to this Court's jurisdiction to entertain this application for judicial review on the ground that the SIRC decision does not constitute a "decision or order" within the meaning of section 28 of the Federal Court Act,4 as it read prior to the 1992 amendments. Pursuant to the order of Justice Stone dated May 27, 1999, the parties provided written submissions to the Court on that issue. Ultimately, all of the parties adopted the position that this Court has jurisdiction to decide the application for judicial review. However, as some of the jurisprudence supports the contrary opinion, I propose to discuss this preliminary issue before addressing the applicant's four bases for challenging the SIRC decision.
THE JURISDICTIONAL QUESTION
[13]The question as to whether this Court has the jurisdiction to decide this judicial review application stems from the fact that, at the time the application was initiated, subsection 28(1) of the Federal Court Act provided that the jurisdiction of this Court to entertain a judicial review application was limited to setting aside a "decision or order" made by or in the course of proceedings before a federal board, commission or tribunal. Thus, the issue before us is whether the report and conclusion of the SIRC is a "decision or order" within the meaning of subsection 28(1). Subsection 28(1) reads as follows:
28. (1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, on the ground that the board, commission or tribunal
| (a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; |
| (b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or |
| (c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. [Emphasis added.] |
[14]The decision of this Court in Bear v. Canada (Minister of Indian & Northern Affairs)5 is relevant because it fully supports the understanding that this Court lacks the requisite jurisdiction to decide the judicial review application before us. In brief reasons, delivered from the bench, this Court held that judicial review did not lie with respect to a report prepared by the Minister and submitted to the Governor in Council pursuant to the provisions of the Indian Act [R.S.C., 1985, c. I-5]. The report concluded that there had been a violation of that Act with respect to the election of an Indian band councillor. Under section 79, the Governor in Council retained the discretion to decide whether the report would be acted on. The Governor in Council acted on the report and the band councillor sought judicial review of the Minister's report. This Court refused to hear the application on the ground that the Minister's report was not a decision or order within the meaning of subsection 28(1), as the report had no legally binding effect of its own. Rather, the report operated as condition precedent to the exercise of the Governor in Council's powers. The Court concluded, therefore, that it was the "decision" of the Governor in Council and not the report of the Minister which had binding legal effect. Judicial review of the Governor in Council's decision to set aside the election was not sought, presumably because subsection 28(6) of the Federal Court Act provided that, notwithstanding subsection 28(1), no proceeding could be taken in respect of a "decision or order" of the Governor in Council.
[15]In summary, Bear stands for the general proposition that applications for judicial review cannot be made to this Court regarding decisions which have no binding force in themselves, that is to say, decisions which are advisory or recommendatory in nature. In the present case, there is no doubt that the SIRC's decision is not binding on the Governor in Council, which has yet to act on that decision. In the circumstances, it would seem logical to conclude that this Court lacks the requisite jurisdiction to hear the present application. In my respectful view, however, a careful review of the jurisprudence leads to the opposite conclusion. In this regard, there are five decisions which require analysis.
[16]The first case is Penner v. Electoral Boundaries Commission (Ont.),6 which was cited in Bear and which fully supports the argument that this Court lacks the requisite jurisdiction. In Penner, the applicants sought to challenge a report prepared by an electoral boundary commission which provided for the redistribution of federal constituencies. The report was only one of a series of steps that lead to the legal duty and the authority of the Governor in Council to make an order. This Court held that it lacked jurisdiction on the basis that the report did not constitute a "decision or order" within the meaning of subsection 28(1). The Court also stated that if it lacked the jurisdiction to set aside directly the Governor in Council's order because of subsection 28(6), then it could not do so indirectly by setting aside one of the "decisions" that had no legally operative effect. As noted earlier, that subsection is applicable to the present case. Together, Bear and Penner might be considered persuasive authorities for the proposition that a decision by the SIRC is not reviewable under section 28 of the Federal Court Act. However, the following jurisprudence undermines that position.
[17]In Anheuser-Busch, Inc. v. Carling O'Keefe Breweries of Canada Limited,7 this Court summarized the jurisprudence standing for the proposition that courts would not review the myriad of decisions or orders customarily rendered on matters which arise in the course of proceedings prior to the final decision. Permitting judicial review of interlocutory decisions was characterized as an instrument for delay and frustration that would be used by those who are reluctant to have a tribunal exercise its jurisdiction. However, the Court opted for a pragmatic approach to the interpretation and application of the notion of "decision or order" in subsection 28(1), even though interlocutory matters can legitimately be regarded as decisions giving rise to legal consequences.
[18]The notion that advisory or recommendatory decisions are not subject to judicial review because no legal obligations or rights flow from such decisions was further undermined by this Court in Canadian Tobacco Manufacturers' Council v. National Farm Products Marketing Council.8 In that case, the National Farm Products Marketing Council undertook an inquiry into the merits of establishing a national tobacco marketing agency, at the request of an Ontario marketing board, and held public hearings to that end. The Council refused to order the Ontario Board to make public a report to which the Council had access, but those who would be affected by the establishment of a national marketing agency did not. Those adversely effected sought judicial review before the Trial Division on the ground that they had been denied procedural fairness. The application was allowed and the appeal to this Court dismissed. While the Court recognized that the Council was an administrative agency charged only with a duty to inquire and advise, it held that the adverse consequences flowing from a recommendation which would carry considerable weight given the Council's expertise in the area dictated that the Council was required to afford procedural fairness to those who would be affected by a decision based on its recommendation.
[19]It could be said that Anheuser-Busch stands for the narrow proposition that a tribunal which inquires and advises will be subject to judicial review proceedings only if there is an allegation that there has been a breach of fairness. In my view, that case represents a further erosion of the understanding that an advisory decision does not constitute a "decision or order" which is subject to judicial review. This apparent retreat from the earlier position can be attributed to the Supreme Court's characterization of the argument that an advisory body does not make decisions as "pure sophistry", at least in cases where it is expected that the advice or recommendation will be acted upon.
[20]In Saulnier v. Quebec Police Commission,9 the Supreme Court dealt with a recommendatory report which had been submitted to the provincial Attorney General, on which further action could be taken in the form of a penalty. At page 579 of its decision, the Supreme Court quoted with approval a passage from the dissenting judgment of Justice Casey of the Quebec Court of Appeal who said, in part:
Appellant has rendered a decision that may well impair if not destroy Respondent's reputation and future. When I read the first and fourth considerants and the conclusions of the sixth recommendation and when I recall that the whole purpose of these reports is to present facts and recommendations on which normally the Minister will act the argument that no rights have been determined and that nothing has been decided is pure sophistry. [Emphasis added.]
[21]In my respectful view, the Supreme Court's decision in Saulnier supercedes the decisions of this Court in Bear and Penner. This conclusion is consistent with that of Justice MacKay in Al Yamani v. Canada (Solicitor General), a case also involving a SIRC decision, in which he reasoned:10
Parliament, by the process established under the Immigration and CSIS Acts has established a process which it intended to be reasonably expeditious in dealing with situations where a permanent resident in Canada is seen to present a security risk to the safety of people in Canada, and it would be inappropriate to entertain judicial review proceedings at every step in a process involving three or more steps . . . .
There is no question in my mind that the decision of SIRC is clearly a decision subject to judicial review pursuant to sections 18 and 18.1 of the Federal Court Act . . . . Whether jurisdiction should be exercised in an application questioning that decision, rather than questioning a decision at a later stage in the process, or, as in this case, in addition to questioning such a later decision, is a matter for the Court's discretion. It is urged that SIRC's decision is not a final decision in the process of considering the applicant's situation, but I note that it is a final, not an interlocutory, decision of SIRC itself. [Emphasis added.]
[22]At the end of the day, there is only one case which stands in the way of this Court assuming jurisdiction. That case is Penner, which was subsequently relied upon by this Court in Bear. Thus, it is to Penner that I turn my attention. It will be recalled that in Penner this Court held that the applicant could not seek judicial review of an advisory decision to be acted on by the Governor in Council. Since subsection 28(6) proscribes judicial review of a decision of the Governor in Council, this Court reasoned that permitting judicial review of the advisory decision would be tantamount to doing indirectly what cannot be done directly. With great respect, I do not agree. There are valid reasons why Parliament might wish to immunize a discretionary decision of the Governor in Council. If the Governor in Council is acting in good faith, there are few grounds upon which a person can challenge and seek to set aside its decision. This is particularly true because there is no requirement that the Governor in Council provide written reasons for its decision to accept a recommendation or advise of an administrative tribunal. Moreover, the thought of an applicant establishing bad faith on the part of the Governor in Council is at best a theoretical possibility. On the other hand, a decision which takes the form of a recommendation or advice to a Minister or the Governor in Council, and is intended to be acted on, must be subject to judicial review, if only because the consequences which flow from a flawed decision or flawed process are invariably of fundamental significance to those who are adversely affected by it. Today, no one would accept, for example, that if a person were denied procedural fairness before a tribunal responsible for making an advisory decision that the decision should be allowed to stand. In my view, legal developments in administrative law dictate that Penner should no longer be applied. This is assuming that there are still some applications for judicial review pending in this Court which were initiated prior to the 1992 amendments to the Federal Court Act. In this regard, it is proper to note that subsection 28(6) no longer has any equivalent in the present legislation, and for good reason.
[23]In conclusion, I am of the view that this Court possesses the requisite jurisdiction to hear the applicant's application for judicial review of the SIRC decision. The jurisprudence reveals that the term "decision or order" has no fixed or precise meaning but, rather, depends upon the statutory context in which the advisory decision is made, having regard to the effect which such decision has on the rights and liberties of those seeking judicial review.
[24]I now turn to the four bases upon which the applicant argues that the SIRC decision is invalid.
THE CONSTITUTIONALITY AND FAIRNESS OF THE SIRC PROCEDURES
[25]The first ground upon which the applicant argues that the SIRC decision is invalid concerns the procedures adopted by the SIRC in reaching its conclusions. According to the applicant, the SIRC's failure to make proper disclosure to him of the circumstances giving rise to the SIRC report and refusal to allow him an opportunity to respond accordingly at the hearing deprived him of his right to life, liberty and security of the person in violation of section 7 of the Charter and violated the principles of fairness and fundamental justice. The respondents deny these allegations. Leaving aside the question as to whether the applicant's section 7 argument is premature, given that the Governor in Council has not yet issued a certificate under section 40 of the Immigration Act, I am of the view that the Supreme Court's decision in Chiarelli11 disposes of both of the applicant's arguments. I propose to outline the facts in Chiarelli in some detail, since that case is relevant to many aspects of this judicial review application.
[26]In Chiarelli, a permanent resident (Mr. Chiarelli) pleaded guilty to two offences punishable by up to ten years' imprisonment and life imprisonment, respectively. In 1986, an immigration officer issued a report under section 27 of the Immigration Act, 1976, identifying Mr. Chiarelli as a person described in subparagraph 27(1)(d)(ii), that is, a permanent resident who has been convicted of an offence for which a term of imprisonment of five years or more may be imposed. An inquiry was convoked as a result of this report, resulting in a determination by the adjudicator that Mr. Chiarelli was a person described in subparagraph 27(1)(d)(ii). The adjudicator then issued a deportation order against him. Mr. Chiarelli's appeal to the Immigration Appeal Board was adjourned after the Solicitor General and the Minister issued a joint report to the SIRC, indicating that Mr. Chiarelli was a person described in subparagraph 27(1)(d)(ii). The SIRC conducted an investigation and, prior to holding a hearing, provided Mr. Chiarelli with a "Statement of Circumstances", as well as two summaries of information dealing with his activities, surveillance, and intercepted conversations. The hearing was partially held in camera, and Mr. Chiarelli was provided with summaries of the evidence concerning his participation in a criminal organization and, more specifically, in its extortion and drug-related activities. Mr. Chiarelli was given an opportunity to respond to the allegations against him; however, he chose not to submit any evidence at the hearing or to cross-examine the two RCMP officers who testified in camera. He did, however, make written submissions to the SIRC at a later date.
[27]The SIRC concluded that Mr. Chiarelli was a person described in subparagraph 19(1)(d)(ii), that is, he was not admissible to Canada on the ground that there were reasonable grounds to believe that he would engage in a pattern of indictable criminal activity orchestrated by a criminal organization. Based on the SIRC report, the Governor in Council directed the Minister to issue a certificate under former subsection 83(1) [as am. by S.C. 1984, c. 21, s. 84], which would have barred the Immigration Appeal Board from hearing an appeal of the deportation order on humanitarian and compassionate grounds. The certificate was subsequently issued by the Minister. In 1988, Mr. Chiarelli gave notice to the Board that he intended to raise constitutional questions at the hearing; thus, the Board adjourned the hearing and referred three questions to this Court concerning those constitutional issues. The majority of this Court held that the Board would, in relying upon the Minister's certificate, infringe Mr. Chiarelli's section 7 rights because the SIRC procedure did not meet the section 7 requirements and was not justified by section 1. The Supreme Court allowed the Minister's appeal from this Court's ruling, and dismissed Mr. Chiarelli's cross-appeal which attacked the general scheme for deporting permanent residents convicted of certain criminal offences.
[28]Returning to the issue as to whether the SIRC procedures in the case before us infringed the section 7 rights of the applicant and the principles of fairness and fundamental justice, I am of the view that the Supreme Court disposed of these questions in Chiarelli. Writing for the Court, Justice Sopinka stated that he did not need to address Mr. Chiarelli's argument that his section 7 rights were infringed by the SIRC procedures, since there was no breach of fundamental justice in that case. After reviewing the SIRC procedures, which included an investigation by the SIRC pursuant to a joint report by the Solicitor General and the Minister, and a hearing which Mr. Chiarelli was not entitled to attend as of right (or to have access to or the ability to comment on representations made by any party to the proceedings), Justice Sopinka noted that the legislative framework gave the SIRC a tremendous amount of discretion in balancing fairness to the person affected with the requirement of preventing threats to national security.
[29]Since the scope of the principles of fundamental justice is not fixed, but varies according to the context and the interests at stake, Justice Sopinka proceeded to consider the legislative context and the competing interests of Mr. Chiarelli and the state. While he was aware that Mr. Chiarelli's interest in a fair procedure stemmed from the fact that the SIRC's investigation could potentially result in a recommendation to the Governor in Council that a certificate be issued, effectively removing Mr. Chiarelli's right to appeal his deportation on compassionate grounds, Justice Sopinka considered the state's interest in confidentiality to be paramount in national security cases. He found that Mr. Chiarelli had received "sufficient information to know the substance of the allegations against him, and to be able to respond".12 Thus, it was not necessary that Mr. Chiarelli also be given details of the criminal intelligence techniques and sources used to acquire that information in order to satisfy the principles of fundamental justice.
[30]The applicant in the present case submits that while Mr. Chiarelli received sufficient information as to the substance of the allegations against him, he did not. First, the applicant requested but did not receive the original wiretap of an intercepted conversation purportedly linking him to the attempted assassination of the Turkish consul. The applicant admits to having received a copy of the English translation of this conversation, but claims that there were two different English translations and that the original wiretaps are necessary to establish the context and exactly what was said by the applicant. Second, the applicant requested to examine the forensic evidence from the Baxter bombing which allegedly demonstrated that the product "Quick Start" was used by those responsible for the bombing, but he was not permitted to do so, nor was he permitted to cross-examine any party with respect to that evidence. Thus, the applicant submits that his right to a fair hearing was denied because the SIRC's failure to disclose these key pieces of evidence severely prejudiced his ability to respond to the state's case at the hearing, and thereby violated the principles of fundamental justice.
[31]In my view, the applicant has not successfully distinguished his situation from that of Mr. Chiarelli who, like the applicant, had sufficient information to know the substance of the allegations against him and to respond. The applicant was clearly aware that the intercepted conversation between himself and his friend was being used by the SIRC to establish his links to the attempted assassination of Mr. Gungor. He even obtained a copy of the English translation of that conversation. Thus, I cannot understand how his opportunity to respond to the state's case against him at the hearing was compromised by the fact that he was unable to examine the original wiretap. In any case, Justice Rothstein examined the confidential documents, found that the SIRC had "diligently and carefully considered the interest of the applicant in disclosure",13 and refused to allow the confidential documents to be disclosed for reasons of national security. On appeal, this Court held that Justice Rothstein did not err in making that determination. I have not been persuaded by the applicant's arguments that there was any error in those decisions or any grounds for implicitly overruling them.
[32]I take a similar view of the forensic evidence pertaining to the Baxter bombing. The applicant was clearly aware that his alleged participation in that bombing was relevant to the SIRC investigation, and he was free to counter that allegation at the hearing. It was not necessary for him to physically examine the forensic evidence in order to do so. As with the original wiretap, the fact that the applicant was not entitled to examine the forensic evidence did not deprive him of an opportunity to have a fair hearing before the SIRC; therefore, the principles of fundamental justice have not been infringed by the SIRC procedures in this case.
THE UNCONSTITUTIONALITY OF THE CSIS ACT AND THE IMMIGRATION ACT
[33]As a second ground for invaliding the SIRC decision, the applicant submits that the combined operation of the Canadian Security Intelligence Service Act (the CSIS Act) and sections 32, 39 and 40 of the Immigration Act violates sections 7 and 12 of the Charter, and is not saved by section 1. Briefly stated, section 7 concerns the right to life, liberty and security of the person, section 12 protects persons from cruel and unusual punishment or treatment, and section 1 only restricts these and other individual rights and protections where the state's interests can be demonstrably justified in a free and democratic society. The applicant notes that, in Chiarelli, the Supreme Court left open the question as to whether deportation violates section 7 and constitutes "treatment" within the meaning of section 12. However, the applicant submits that section 7 can be invoked in this case because, unlike Mr. Chiarelli, the applicant did not have the benefit of the full spectrum of Charter rights afforded to him in a court of law; rather, he became subject to deportation solely on the basis of the SIRC decision. Mr. Chiarelli was convicted under the Criminal Code [R.S.C. 1970, c. C-34] while, in the present case, the applicant has never been charged with an offence relating to the matters in question. The applicant also submits that he should retain his qualified right to remain in Canada until a finding has been made in accordance with the principles of fundamental justice that he breached an essential condition of remaining here. Since this Court does not have access to the full evidentiary record before the SIRC or its decision, the applicant alleges that the legislative scheme is fundamentally unfair and violates section 7 of the Charter because he has no "true appeal" from the SIRC decision. He adds that most Canadians would be shocked to learn that a permanent resident could be deported based on "vague allegations supported by virtually unchallenged evidence given behind closed doors". The applicant submits that the respondents cannot justify the legislative scheme in question under section 1, because it is "arbitrary and overbroad", its use in this case constitutes an abuse of process since the immigration scheme was used to avoid proceeding under the Criminal Code, and it deprived the applicant of procedural fairness.
[34]With respect to section 12, the applicant submits that deportation constitutes "treatment" and that his treatment was cruel and unusual because it was so excessive that it outrages standards of decency. Unlike Mr. Chiarelli who had been convicted of serious criminal offences, the applicant submits that his only "crimes" involved defacing a stop sign and attempting to confront someone at a cultural event. Thus, the applicant submits that deportation is a disproportionately harsh treatment as compared to those acts, and the resultant breach of his section 12 rights cannot be justified under section 1.
[35]The respondents argue that the applicant's section 7 rights have not been infringed, since the termination of the applicant's qualified right to remain in Canada did not deprive him of the right to life, liberty and security of the person, and the procedure terminating his status did not deprive him of fundamental justice. The respondents note that, in Chiarelli, the Supreme Court considered the constitutionality of sections 82.1 [as enacted by S.C. 1984, c. 21, s. 84] and 83 of the Immigration Act (now sections 81 and 82) and concluded that they did not violate section 7. The respondents submit that those sections are substantially the same as the combination of the CSIS Act and sections 32, 39 and 40 of the Immigration Act, and that that Act and those sections also do not violate section 7. Furthermore, the SIRC notes that all individuals who come within section 19 of the Immigration Act have violated an essential condition under which they are permitted to remain in Canada, not only those who have committed serious criminal offences.
[36]With respect to the applicant's section 12 arguments, the respondents submit that the combined operation of the CSIS Act and sections 32, 39 and 40 of the Immigration Act does not constitute cruel and unusual punishment or treatment. On a preliminary note, the respondents submit that the applicant's arguments are premature, since the Governor in Council has not yet issued a certificate under section 40 of the Immigration Act which would lead to the applicant's deportation. Nevertheless, they submit that deportation serves to remove undesirable people from Canada, and it is the exactly proportionate consequence of behaviour incompatible with the qualified right of permanent residents to remain in Canada. In their submission, deporting an individual who is likely to commit acts of violence based on past acts of violence would not be grossly disproportionate or so excessive as to violate public standards of decency. Even if the statutory scheme in question were found to be unconstitutional, the respondents submit that it is justifiable under section 1, since preventing threats to national security and protecting security intelligence information is sufficiently important to override an individual's sections 7 and 12 rights.
[37]For the sake of judicial economy, I intend to proceed with my analysis in the absence of a certificate under section 40 or a deportation order, because if the Governor in Council issues a certificate, the applicant will be forced to re-initiate judicial review proceedings in this Court. Before addressing the parties' submissions, however, I have chosen to reproduce the relevant portions of sections 32, 39 and 40 of the Immigration Act:
32. . . .
(2) Where an adjudicator decides that a person who is the subject of an inquiry is a permanent resident described in subsection 27(1), the adjudicator shall, subject to subsections (2.1) and 32.1(2), make a deportation order against that person.
. . .
39. . . .
(2) Where the Minister and the Solicitor General of Canada are of the opinion, based on security or criminal intelligence reports received and considered by them, that a permanent resident is a person described in paragraph 19(1)(c.2), subparagraph 19(1)(d)(ii), paragraph 19(1)(e), (f), (g), (k) or (l) or 27(1)(a.1), subparagraph 27(1)(a.3)(ii) or paragraph 27(1)(g) or (h), they may make a report to the Review Committee.
(3) The Minister and the Solicitor General of Canada shall, within ten days after a report referred to in subsection (2) is made, cause a notice to be sent informing the person who is the subject of the report that following an investigation in relation thereto, a deportation order may be made against that person.
(4) Where a report is made to the Review Committee under subsection (2), the Minister may cause to be filed with an immigration officer, a senior immigration officer or an adjudicator, as required for the purposes of this Act, a document stating that, in the opinion of the Minister and the Solicitor General of Canada, the person named in the document is a person described in paragraph 19(1)(c.2), subparagraph 19(1)(d)(ii), paragraph 19(1)(e), (f), (g), (k) or (l) or 27(1)(a.1), subparagraph 27(1)(a.3)(ii) or paragraph 27(1)(g) or (h), as the case may be.
(5) Where a report is made to the Review Committee pursuant to subsection (2), the Review Committee shall investigate the grounds on which it is based and for that purpose subsections 39(2) and (3) and sections 43, 44 and 48 to 51 of the Canadian Security Intelligence Service Act apply, with such modifications as the circumstances require . . . .
(6) The Review Committee shall, as soon as practicable after a report is made to it pursuant to subsection (2), send to the person with respect to whom the report is made a statement summarizing such information available to it as will enable the person to be as fully informed as possible of circumstances giving rise to the report.
. . .
(9) The Review Committee shall on completion of an investigation in relation to a report made to it pursuant to subsection (2), make a report to the Governor in Council containing its conclusion whether or not a certificate should be issued under subsection 40(1) and the grounds on which that conclusion is based. [Emphasis added.]
(10) The Review Committee shall, at the same time as or after a report is made pursuant to subsection (9), provide the person with respect to whom the report is made with a report containing the conclusion referred to in that subsection.
40. (1) Where, after considering a report made by the Review Committee referred to in subsection 39(9), the Governor in Council is satisfied that the person with respect to whom the report was made is a person described in subparagraph 19(1)(c.2), subparagraph 19(1)(d)(ii), paragraph 19(1)(e), (f), (g), (k) or (l) or 27(1)(a.1), subparagraph 27(1)(a.3)(ii) or paragraph 27(1)(g) or (h), the Governor in Council may direct the Minister to issue a certificate to that effect. [Emphasis added.]
(2) A certificate issued under subsection (1) is, in any prosecution or other proceeding under or arising out of this Act, conclusive proof of the matters stated therein without proof of the signature or official character of the person appearing to have signed the certificate unless called into question by the Minister.
[38]In Chiarelli, Justice Sopinka emphasized the importance of a "contextual approach" to the interpretation of section 7 of the Charter. He quoted Justice Cory in R. v. Wholesale Travel Group Inc. for the proposition that "[c]ontext is relevant both with respect to the delineation of the meaning and scope of Charter rights, as well as to the determination of the balance to be struck between individual rights and the interests of society."14 With respect to the immigration context, Justice Sopinka noted that "[t]he most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country".15 Justice Sopinka also noted that the CSIS Act provides that no one is entitled as of right to be present during another party's representations, nor to have access to or comment on them. It is within the discretion of the SIRC to exclude one or more parties during another party's representations or the giving of evidence, to determine whether a party is entitled to cross-examine witnesses called by other parties, and to decide if the disclosure of evidence or representations of another party should be made to an excluded party. Justice Sopinka concluded that the procedure followed by the SIRC did not violate the principles of fundamental justice.
[39]Given that the SIRC procedure in the present case was the same as in Chiarelli, I am obligated to adopt Justice Sopinka's comments with respect to the applicant's section 7 arguments in their entirety. Since a finding has been made by the SIRC that the applicant breached an essential condition of remaining here, and since such finding comports with the principles of fundamental justice, the applicant's section 7 argument must fail. I now turn to the applicant's section 12 arguments.
[40]I assume that the applicant refers to his deportation as cruel and unusual "treatment", since Justice Sopinka plainly stated in Chiarelli that "deportation is not imposed as a punishment".16 However, Justice Sopinka clearly left the door open as to whether deportation could be considered "treatment" under section 12, but he did not find it necessary to decide that point, given his conclusion that Mr. Chiarelli's deportation was not "cruel and unusual". Since deportation was found not to be cruel and unusual in Chiarelli, a substantially similar case to the one under review, the applicant cannot succeed on this ground, even if deportation could be characterized as "treatment". I say this for the following reason.
[41]The test for section 12 infringements in R. v. Smith (Edward Dewey)17 was reiterated by Justice Sopinka in Chiarelli, who found that Mr. Chiarelli's deportation would not "outrage standards of decency". Instead, Justice Sopinka was of the view that "it would tend to outrage such standards if individuals granted conditional entry into Canada were permitted, without consequence, to violate those conditions deliberately".18 Although the applicant in the present case has only been convicted of mischief, he is not being subjected to deportation on the basis of paragraph 19(1)(d) of the Immigration Act, 1976 like Mr. Chiarelli. Rather, the SIRC determined that the applicant falls within paragraph 19(1)(g), which pertains to persons who there are reasonable grounds to believe will engage in acts of violence that would or might endanger the lives or safety of persons in Canada, or are likely to participate in the unlawful activities of an organization that is likely to engage in such acts. Therefore, the fact that the applicant may be deported has little to do with his criminal conviction for a rather minor offence. It has to do with the fact that he represents a danger to Canadians. Given this conclusion, it is hard to imagine that public "standards of decency" would be outraged by the applicant's deportation, if such event occurs. Presumably, Canadians would be outraged if a permanent resident could not be deported where there are reasonable grounds to believe that he or she represents a threat to the lives or safety of persons in Canada.
MEMBERSHIP IN IMPUGNED ORGANIZATIONS AND THE CHARTER
[42]The applicant's third argument challenging the validity of the SIRC decision alleges that that portion of paragraph 19(1)(g) of the Immigration Act referring to persons who are members of an organization that is likely to engage in acts of violence is unconstitutional because it violates paragraph 2(d) of the Charter. The applicant does not challenge those portions of paragraph 19(1)(g) which specifically refer to persons who are likely to engage in acts of violence. However, the applicant submits that prohibiting mere membership in certain organizations is "grossly over-inclusive". He notes that the SIRC seemed to place a great deal of weight on the fact that he was associated with members of a group likely to engage in acts of violence, but states that his association with the group was purely political and that he disagreed with those members of the ASALA who advocated violence. Thus, the applicant submits that that portion of paragraph 19(1)(g) which restricts his right to freedom of association infringes paragraph 2(d) and cannot be saved by section 1, as it is overly broad, it does not restrict the applicant's right as little as reasonably possible, and there is no legitimate or demonstrable public interest in subjecting permanent residents to deportation simply because they have joined a social, political or financial organization that may have a few aberrant members.
[43]The Canadian Civil Liberties Association (CCLA) was permitted to intervene on the issue of the alleged inconsistency of paragraph 19(1)(g) of the Immigration Act and paragraph 2(d) of the Charter. The CCLA submits that that portion of paragraph 19(1)(g) which depends only on a finding of a person's association with an impugned organization offends paragraph 2(d), which is guaranteed to everyone, including permanent residents. The CCLA further submits that paragraph 19(1)(g) does not mandate an inquiry into the extent of a person's participation in or influence over the impugned organization, the likelihood that such person will participate in violent acts perpetrated by the organization, or other relevant considerations. It also notes that paragraph 19(1)(g) does not distinguish between organizations exclusively devoted to violent activities and those with a wide range of legitimate purposes which have a small number of members who engage in violent acts. Since paragraph 19(1)(g) is over-inclusive in this respect, the CCLA submits that it violates paragraph 2(d) of the Charter and it cannot be saved by section 1 because it is not rationally connected to any valid objective, it does not minimally impair the applicant's freedom of association, and its effects are so deleterious that they outweigh any legitimate government objective. Both the CCLA and the applicant rely on Justice MacKay's decision in Al Yamani v. Canada (Solicitor General)19 to support their arguments.
[44]The respondents (except the SIRC which made no submissions on this issue) note that the SIRC report made no finding that the applicant was a member of an impugned organization, nor did the SIRC's recommendation to the Governor in Council refer to that portion of paragraph 19(1)(g) which relies on such a finding. Thus, the respondents submit that the applicant's paragraph 2(d) rights have not been infringed because the issue of his freedom of association never arose in this case. Alternatively, the respondents submit that freedom of association does not protect an individual's association with groups formed for the purpose of, or engaging in, acts of violence against Canadians. The respondents note that the SIRC found that the applicant had engaged in such acts of violence. In the event that this Court is prepared to find that the applicant's paragraph 2(d) rights were violated, the respondents submit that paragraph 19(1)(g) is saved by section 1.
[45]Since the specific wording of paragraph 19(1)(g) is crucial to this issue, I propose to reproduce that provision in its entirety before turning to Justice MacKay's decision in Al Yamani:
19. (1) No person shall be granted admission if he is a member of any of the following classes:
. . .
| (g) persons who there are reasonable grounds to believe will engage in acts of violence that would or might endanger the lives or safety of persons in Canada or are members of or are likely to participate in the unlawful activities of an organization that is likely to engage in such acts of violence. [Emphasis added.] |
[46]In Al Yamani, the SIRC concluded that the applicant (Mr. Yamani), a permanent resident and the son of one of the founders of the Popular Front for the Liberation of Palestine (PFLP), was a person described in paragraph 19(1)(g) of the Immigration Act. It recommended that a certificate be issued by the Governor in Council pursuant to subsection 40(1), which certificate was then issued, subjecting Mr. Yamani to deportation proceedings. On judicial review, Mr. Yamani challenged, inter alia, the constitutionality of paragraph 19(1)(g), alleging that it violated his right to freedom of association. Justice MacKay found that the SIRC based its finding that Mr. Yamani was a person described by paragraph 19(1)(g) on three conclusions: first, that Mr. Yamani was a member of the PFLP; second, that the PFLP was a terrorist organization; and third, that the PFLP is likely to engage in acts of violence that would or might endanger the lives or safety of persons in Canada. Justice MacKay then considered whether such conclusions violated Mr. Yamani's paragraph 2(d) rights. Noting that the mere fact of association with members of an impugned organization could lead to their classification for deportation, regardless of the obligations of membership, other activities undertaken by the organization, or the individual's influence upon that organization, Justice MacKay held that [at pages 222-223]:
[P]aragraph 19(1)(g) does directly restrict freedom of association, providing for persons, who are not citizens, ultimately to be excluded or to be deported from Canada, because there are reasonable grounds to believe they are members of an organization likely to engage in acts of violence of the sort described. It is the association of persons as members of the organizations described that leads to their classification for exclusion or deportation. It is not their individual records of participating in violent activities nor a determination that they are likely to participate in violent activities. Rather it is simply the fact of membership in an organization which is likely to engage in acts of described violence that is the reason for the application of paragraph 19(1)(g) in this case, regardless of the obligations of membership, the range of the organization's other activities, or the influence the individual may exercise in regard to the organization. [Emphasis added.]
[47]Having found that Mr. Yamani's membership in the PFLP was the basis for his proposed deportation, Justice MacKay held that paragraph 19(1)(g) infringed upon Mr. Yamani's freedom of association. Thus, Justice MacKay struck down that portion of paragraph 19(1)(g) which would expose a permanent resident to deportation based on his or her membership in an impugned organization as contrary to paragraph 2(d) of the Charter and unjustifiable under section 1.
[48]As Justice MacKay noted in Al Yamani, there are three groups of people caught by paragraph 19(1)(g).20 First, there are persons who there are reasonable grounds to believe will engage in acts of violence. Second, there are persons who there are reasonable grounds to believe are members of an organization that is likely to engage in those acts of violence. And third, there are persons who there are reasonable grounds to believe are likely to participate in the unlawful activities of such an organization. Mr. Yamani was found to come within the second group of persons caught by paragraph 19(1)(g). Based on the decision rendered by the SIRC, the applicant in the present case would appear to fall within the first or third group, or both. It is the fact that the applicant is associated with persons who are members of the ASALA who have committed criminal offences in Canada that lead the SIRC to conclude that there are reasonable grounds to believe that the applicant is likely to participate in the ASALA's unlawful activities. Thus, Justice MacKay's decision in Al Yamani is not applicable to this case. In summary, this is not a case in which the applicant is to be deported because he is a member of a terrorist organization. This is a case in which the applicant is to be deported for consorting with members of a terrorist organization engaged in unlawful activities in which the applicant is reasonably likely to participate.
[49]I turn now to the applicant's final argument for invalidating the SIRC decision.
THE ALLEGED UNREASONABLENESS OF THE SIRC DECISION
[50]The applicant submits that since the SIRC's functions are neither primarily adjudicative nor purely legislative, the proper standard of review of the SIRC's decision is reasonableness. The applicant notes that this Court is hampered in its assessment of this issue because it lacks access to the reasons for the SIRC decision, the evidence upon which the SIRC relied, and the entire context of the evidence before the SIRC. The applicant also submits that it would be patently unreasonable for the SIRC to conclude that the applicant came within paragraph 19(1)(g) solely on the basis that he was convicted of public mischief and defaced a few stop signs. According to the applicant, the SIRC must have accepted that the applicant participated in the Baxter bombing or the attempted Gungor assassination in order to reach that conclusion. The applicant then proceeds to protest the fact that he was denied disclosure of the forensic evidence pertaining to Baxter bombing and the original transcript of a conversation implicating him in the Gungor assassination. The applicant submits that he suffered real prejudice on account of the SIRC's reliance on this unchallenged evidence. Thus, the applicant is of the view that the SIRC's decision was unreasonable.
[51]The respondents (except the SIRC which made no submissions on this issue) submit that the SIRC reached a conclusion which is supportable on the evidence before it. Although the SIRC relied on some evidence that was disclosed to the applicant and some that was not, the respondents submit that the SIRC correctly concluded that the applicant was a member of a prohibited class and that he poses a danger to the safety of Canadians. Thus, the respondents submit that the SIRC's decision and recommendation were reasonable.
[52]In effect, the applicant is re-arguing what was discussed earlier with respect to the alleged breach of his section 7 rights and the principles of fundamental justice. Since I have already addressed those issues with respect to the undisclosed evidence, I do not propose to do so again. It will be sufficient to quote Justice MacKay's comment on that issue in Al Yamani, before addressing the question of the SIRC decision's alleged unreasonableness:21
It presents an extraordinary situation for the Court in judicial review proceedings to review the work of a tribunal, the full record of which is not available. Yet that is the situation authorized by Parliament under the CSIS Act and the SIRC Rules made under that Act. [Emphasis added.]
[53]In Slaight Communications Inc. v. Davidson, Justice Lamer (as he then was) stated that "[a]n administrative tribunal exercising discretion can never do so unreasonably",22 whether its findings are of a factual or legal nature. Applying this test in Al Yamani, Justice MacKay noted that "This may be simply a different way of expressing this Court's jurisdiction in judicial review . . . where that authority is expressed in terms of errors of law or errors of fact".23 Nevertheless, Justice MacKay proceeded to consider the reasonableness of the SIRC decision, even though he had already concluded that the findings underlying that decision were not perverse, capricious or without evidentiary support. In Al Yamani, all of the academic experts testified before the SIRC that the PFLP had never committed violent acts in North America, that it had abandoned international terrorism decades ago, and that it had expelled the sole faction within its organization that supported international terrorism. However, CSIS officers provided evidence to the contrary, which evidence was obviously accepted by the SIRC and relied upon in its conclusion that the PFLP was an international terrorist organization likely to engage in acts of violence that would or could endanger the lives or safety of persons in Canada. Justice MacKay was not persuaded that the SIRC's conclusion was unreasonable; rather, on the totality of the evidence, Justice MacKay found that its conclusion regarding the PFLP was "open to it, and clearly supported by the evidence provided by CSIS".24
[54]Assuming that it is appropriate to review the SIRC's decision on a standard of reasonableness, I am of the view that the SIRC did not come to an unreasonable conclusion respecting the applicant. There was clearly sufficient evidence before the SIRC to enable it to reach the conclusion that there are reasonable grounds to believe that the applicant is likely to participate in the unlawful activities of an impugned organization. The SIRC was not obligated to accept the applicant's version of the evidence; rather, its only obligation was to conduct an investigation and submit a report and recommendation to the Minister in which it assessed whether the applicant was a person who there are reasonable grounds to believe is likely to engage in the unlawful activities of a terrorist organization. Having fulfilled its obligation in this respect, I can find no basis upon which to conclude that the SIRC's decision was unreasonable.
DISPOSITION
[55]I would dismiss this judicial review application without costs.
Stone J.A.: I agree.
Sexton J.A.: I agree.
1 [1992] 1 S.C.R. 711.
2 (1995), 95 F.T.R. 35 (F.C.T.D.), at p. 42.
3 (1997), 6 Admin. L.R. (3d) 239 (F.C.A.), at p. 245.
4 R.S.C., 1985, c. F-7, as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 61.
5 (1988), 33 Admin. L.R. 147 (F.C.A.).
6 [1977] 2 F.C. 58 (C.A.).
7 [1983] 2 F.C. 71 (C.A.).
8 [1986] 2 F.C. 247 (C.A.).
9 [1976] 1 S.C.R. 572.
10 [1996] 1 F.C. 174 (T.D.), at pp. 198-199.
11 Supra, note 1.
12 Ibid., at p. 746.
13 Supra, note 2.
14 [1991] 3 S.C.R. 154, at p. 226.
15 Chiarelli, supra, note 1, at p. 733.
16 Ibid., at p. 735.
17 [1987] 1 S.C.R. 1045.
18 Chiarelli, supra, note 1, at p. 736.
19 Supra, note 10.
20 Ibid., at p. 204.
21 Ibid., at p. 208.
22 [1989] 1 S.C.R. 1038, at p. 1076.
23 Supra, note 10, at p. 210.
24 Ibid., at p. 211.