influential and violent individuals and organizations
within the white supremacist movement, both
nationally and internationally, who have propagated
violent messages of hate and advocated the
destruction of Governments and multicultural
societies. His status in the white supremacist
movement is such that adherents are inspired to
actuate his ideology. The State party believes that
the author is engaged in the propagation of serious
political violence to a degree commensurate with
those who execute the acts. On this basis, it contends
that the author is indeed a danger to the State party’s
national security and a threat to the international
community, which justifies his deportation.
4.6 On the author’s claims under article 9,
paragraphs 1 and 3, relating to his detention, the
State party submits that the author has initiated
domestic legal proceeding based on the Charter,
alleging essentially the same complaints that he
raises under article 9 in the present communication.
The author’s constitutional action before the Federal
Court of Canada alleges that the national security
certificate process as applied to the author violates
sections 7, 9 and 10 (c) of the Charter. As in this
communication, the author alleges Charter violations
based on the non-disclosure of all of the evidence
against him, the duration of his detention, and the
promptness and fairness of the hearing. In light of
available domestic remedies, which are actually
being pursued by the author, the State party submits
that this portion of the communication is
inadmissible for failure to exhaust domestic
remedies.
4.3 The State party points out that the hearing of
evidence into the reasonableness of the security
certificate and the need for ongoing detention
occurred on various dates in 2003 and 2004. In 2003
in particular, the hearing was prolonged due to the
repeated unavailability of author’s counsel. The
hearing was also interrupted several times by the
author’s last minute motions, including to have the
presiding judge recuse himself for alleged bias,
which all failed.
4.7 On the author’s claim under article 9,
paragraph 1, relating to alleged violations arising
from incidents dating from 1984 to 1995, the State
party contends that the author has failed to
demonstrate that he ever attempted to pursue
domestic remedies that would have been available to
redress any proven misconduct by law enforcement
officials and/or Crown prosecutors. Various judicial
remedies were and are potentially available to the
author, including judicial review for mala fides, bias,
flagrant impropriety, abuse of power, etc., and
actions based on the Charter. Additionally,
administrative complaint procedures could have
provided effective remedies, but the author has not
apparently pursued such remedies either. The author
makes no claim to have pursued such remedies in
relation to the law enforcement agencies that he
seeks to impugn. Still in relation to the claim under
article 9, paragraph 1, the State party adds that the
author did not act diligently in presenting his claims
that it failed to protect his security by not
investigating and prosecuting alleged attacks made
against him and his property between 1984 and
1995. For the State party, a delay of ten to twenty
years without reasonable justification renders this
claim inadmissible as an abuse of the right of
submission.8
4.4 On admissibility, the State party submits that
the author has failed to show that the availability of
any domestic remedies would be unreasonably
prolonged. The State party refers to the Committee’s
jurisprudence that seeking redress for alleged
violations of rights and freedoms, like those
guaranteed under the Charter and other public law
remedies, via the normal judicial process would not
be unreasonably prolonged within the meaning of
article 5 (2) (b) of the Optional Protocol.6 It further
submits that the author has failed to exhaust
available remedies and that he has implicitly
admitted that he has not done so.
4.5 On the claims under article 7 and 10, the State
party indicates that the Charter guarantees that
conditions of detention respect the dignity of
detainees. The author could have challenged his
conditions of detention under any of Sections 2, 7, 8,
10 and 12 of the Charter. In addition, other more
particular legal rules governed the author’s
detention, the enforcement of which by a domestic
court through judicial review could have provided a
remedy to the type of complaints made by the
author.7
4.8 On the author’s claims under article 14,
paragraphs 1 to 3, the State party indicates that the
author has initiated domestic proceedings before the
Federal Court of Canada alleging essentially the
same complaints that he raises in this
6
The State party refers to communication No. 67/1980,
E.H.P. v. Canada, decision of 27 October 1982, para. 8;
communication No. 358/1989, R.L. et al. v. Canada,
decision of 5 November 1991, para. 6.4; communication
No.228/1987, C.L.D. v. France, decision of 18 July 1988,
para. 5.3; and communication No. 296/1988, J.R.C. v.
Costa Rica, decision of 30 March 1989, para. 8.3.
7
See sections 28 and 33-34 of the Ministry of
Correctional Services Act, R.R.O. 1990 Reg. 778, which
provides an avenue for inmates held in Ontario facilities,
as was the author, to complain about their treatment.
8
See communication No. 787/1997, Gobin v. Mauritius,
Views adopted on 16 July 2001, para. 6.3.
24
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