Last week, the Vancouver Province reported the federal government reversed its original opinion and will allow Martin Chambers, 74, to be transferred back to Canada next month. Chambers has been serving a 15-year, eight-month jail term for money laundering.
As reported in Legal Feeds last August, in a B.C. Supreme Court judgment, 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. In his ruling in Chambers v. Daou, Silverman said it breached Chambers’ rights as a Canadian citizen under the Charter.
In a surprise move, on Dec. 18, 2014 the Minister of Public Safety approved Chambers’ transfer to Canada. It is expected he will return to this country in early March.
“It was a surprise because we were critical of some new information put forward that we felt was contrived, then all of a sudden the Minister approves him,” says Chambers’ lawyer John Conroy. “We were hoping, however, that the court would do something to raise the issue of why isn’t the Canadian government doing something to move one of its citizens back ASAP if they are entitled to that release.”
The case wound up in B.C. Supreme Court when Chambers applied to be transferred to Canada. In the U.S., his nearest release date would be Sept. 7, 2016 with the full sentence expiration date at May 30, 2018.
In that trial, 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.
In the U.S., the maximum prison term for the offence is 20 years, while in Canada the maximum is 10. 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.
When Chambers applied to be returned to Canada in 2013, his application was rejected. Joseph Daou, acting in his capacity as senior manager of the international transfer unit of the Correctional Service of Canada and Minister of Public Safety and Emergency Preparedness, indicated the Canadian 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’s 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 a foreign country is longer than the maximum sentence in Canada, the individual will serve the shorter term.
However, one of the Convention’s 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’s position stems from a need of six months as a period to rehabilitate and orient the person to Canadian society.
The case then moved to the B.C. Court of Appeal to request that Daou move the request forward to the minister. But on Dec. 18, 2014 the Minister of Public Safety approved Chambers’ transfer to Canada.
In its factum the federal government noted: “It is acknowledged that, for a file to be processed under the ITOA, there does not need to be a minimum of six months left on the offender’s Canadian sentence at the time of the application, the time of receipt of the application or at the time of the decision by the Minister.”
Conroy says he wishes the Appeal Court had addressed some of the bigger issues in the case in delivering its decision.
“The evidence was quite clear — the U.S. was willing to let him go as soon as Canada approves,” says Conroy. “So Canada was blocking his ability to get back until the minister finally approved him. We were hoping the Court would say something about the role of habeas corpus and the Charter and Constitution, but it was not to be.”