The prisoner-transfer case involving former British Columbia lawyer Martin Chambers caught in an FBI-RCMP Florida money-laundering sting dubbed “Bermuda Short” in 2003, is revealing a major chink in the federal government processing system, leading to infringements under the Canadian Charter of Rights and Freedoms.
In an oral judgment handed down by the B.C. Supreme Court, Justice Arne H. Silverman ruled Chambers was being held unlawfully in a U.S. prison as a result of the Canadian corrections services refusal to process his application to return to Canada. Justice Silverman in his ruling in Chambers v. Daou said this was breaching Chambers’ civil rights as a Canadian citizen under the Charter.
Silverman blamed the federal government’s refusal to act on an erroneous interpretation of eligibility to transfer to the Canadian correction system from another country.
“I am satisfied that he has been denied fundamental justice as a result of the denial of the process available to eligible applicants under the law. In the circumstances, his (Chambers) s.7 Charter rights have been breached,” ruled Justice Silverman.
The case wound up in B.C. Supreme Court in July when Chambers, now 74-years-old and serving a 15-year-and-eight month sentence in the U.S., applied to be transferred to Canada. In the U.S., his nearest release date is Sept. 7, 2016 with the full sentence expiration date at May 30, 2018.
In the U.S., the maximum prison term for the offence is 20 years, while in Canada the maximum term is 10 years. He had already served more than a year over the Canadian maximum prison sentence. Chambers tried a transfer to Canada in 2008 but the U.S. authorities turned down the request. He again applied 10 years into his term and received agreement from the U.S. authorities.
However, when Chambers applied to be returned to Canada in 2013, his application was rejected. Joseph Daou of Correctional Service Canada indicated the Canadian statute International Transfer of Offenders Act adheres to the treaty terms of the Convention on the Transfer of Sentenced Persons (which Canada, the U.S., and other countries are party to). Chambers’ request failed to meet the Convention terms, even as it gave him an advantage under the Act in terms of time served.
The Act states once the offender is back on Canadian soil, if the sentence imposed on the individual by foreign country is longer than the maximum sentence in Canada, the individual will serve the shorter term. Chambers would be released if he was returned to Canada.
However, one of the Convention conditions is that the individual must have at least six months left on this sentence to service. Daou declined to forward the application for transfer to the minister responsible for approval and denied Chamber’s request. Crown lawyers argued the Correctional Service Canada’s position stems from a need of six months as a period to rehabilitate and orient the person to Canadian society.
Justice Silverman disagreed, indicating the six-month condition held ambiguities and pointed to a period that seemed to be in place to provide the government with time to process the individual’s request in a transfer. He said the only reason that Chambers is being held in the U.S. jail is because Canada failed to consent to review the transfer request and the refusal was based on the incorrect interpretation. Daou’s refusal to forward the request to the minister denies Chambers his rights under the Act to be treated as an eligible Canadian prisoner and now keeps him incarcerated for more years, depriving him of the right of process under s. 7 of the Charter.
Silverman said he was satisfied Chambers was being detained “unlawfully and will continue to be, until he has the benefit of the process which he is entitled.” At the same time he refused a mandamus remedy request against Daou or the minister as he felt this was beyond his scope and came under the Federal Courts Act.
The case has now been moved to the B.C. Court of Appeal to request that Daou move the request forward to the minister.