Border services sued for wrongful detention
Gabriel Chan says he’s a Canadian by birth, but was held for 38 days in immigration jail
A Toronto man is suing Canada Border Services Agency, claiming he was wrongfully held in immigration detention for more than a month, even though he’s Canadian.
What makes the case unusual is that Gabriel Chan was born to a Canadian father, but had not made an application to declare his Canadian citizenship until after his arrest, following a fare dispute at a GO Transit train station last September. He was held at the immigration holding centre in Rexdale for 38 days.
“I feel my rights were violated. I did not deserve to be held in detention for 38 days. They should have released me as soon as they received the documentation that proves my status,” the 32-year-old graphics artist said in an interview. CBSA would not comment on the lawsuit, but confirmed Chan was detained from Sept. 7 to Oct.14. The agency has not yet filed a statement of defence.
Born and raised in the Philippines, Chan is a dual American and Canadian citizen, a right he inherited from his biological parents. However, he only reconnected with his birth father, Benjamin Esguerra, and his seven half-siblings for the first time when he visited Canada at the age of 16.
After he finished high school in Manila, he returned to Toronto in 2000 and stayed; an American passport allowed him to travel in and out of the country, and he remained here up to six months at a time.
Just before midnight on Sept. 6, Chan said, he was stopped by a GO Transit officer at Port Credit for a proof-of-payment check. He said he was asked for identification, but all he had on him was a Filipino driver’s licence and his international driver’s licence.
The officer proceeded to call the border enforcement agency, claiming he had an illegal migrant in custody, said Chan. He was handcuffed and taken to the Rexdale detention centre shortly after, Chan said in his statement of claim, allegations of which have not been proven in court.
In his affidavit, Chan said he told officials he was a Canadian at birth because his father had become a citizen in 1971, at a time when Canadian citizenship could be passed on automatically to a descendant born abroad.
According to his claim, border officials continued to detain him even after Oct. 5, when his immigration lawyer, Richard Wazana, submitted a DNA test showing Esguerra is Chan’s biological father, as well as his father’s landing papers and citizenship documents.
“I have never come across a case like this. The holding centre he was held at is reserved for immigration detainees, persons who do not have a right to remain in Canada,” Wazana said.
“We had sufficient evidence to show Gabriel was a citizen. The case hinges on at what point of time CBSA knew they were likely holding a Canadian citizen.”
When contacted by the Star, CBSA spokeswoman Antonella DiGirolamo responded in an email: “Records indicate that Mr. Chan is not a Canadian citizen, but he has a right to make an application for citizenship.”
“As part of Mr. Chan’s release conditions, he was to provide proof of filing a citizenship application within seven days, which he did on Oct. 21, 2015,” she said.
Immigration, Refugees and Citizenship Canada said Chan filed an application for a citizenship certificate on Feb. 26, which is currently still being processed. CBSA said it will not remove Chan from Canada until a decision on his proof of citizenship application is rendered.
Courtney Kazembe, Chan’s litigation lawyer, said they have not received a response from CBSA to the claims.