On February 12, 2019, in a judgment issued by Judge R. L. Barnes (hereinafter referred to as the judge) of the federal court mostly dismissed Durkin’s request to have the CBSA’s application to deport him overturned. A small window to appeal the decision through the submission of very specific certified questions exists, with a 14 day timeline (ending Feb 26). Tim Durkin currently manages the Sooke Harbour House and is a British citizen.
On Nov 28, 2017, Durkin was first serviced notice that he was subject to an admissibility review “because of the offences committed from October 2009 to May 2013 in Alabama.” On May 8, after a series of delays, Durkin’s counsel asked the courts that an inadmissibility request not be issued against Durkin for three reasons. First, his counsel claimed that the CBSA failed to disclose information on the outstanding criminal charges from the US. Second, his counsel pleaded humanitarian and hardship considerations. Third, his counsel argued that “Mr. Durkin has never been convicted of any criminal offence in his entire life.”
Evidence concerning criminal allegations against Durkin included an indictment, FBI testimony to a grand jury, and arrest warrant, and an Interpol Red Notice seeking Durkin’s arrest. According to Wikipedia, an Interpol notice is “an international alert circulated by Interpol to communicate information about crimes, criminals, and threats from police in a member state to their counterparts around the world.” A Red notice “is simply a request for the arrest and extradition of an individual for whom an arrest warrant has been issued in the requesting country.” It is not an international arrest warrant.
A Delegate, who had considered the evidence, came to the following conclusion:
“[T]here are considerable humanitarian and compassionate grounds in Mr. Durkin’s favour. Having said that, the offences Mr. Durkin is accused of are organized, sophisticated and serious in nature. Though Mr. Durkin has been a permanent resident in Canada for 66 years, much of that time was spent outside of Canada including in his country of citizenship. Upon review, I do not believe that the humanitarian and compassionate considerations outweigh the seriousness of the offenses and Canada’s international obligation not to be a haven for fugitives from justice. As such, I concur with the officer’s recommendation to refer Mr. Durkin to an admissibility hearing.”
The judge denied the argument that certain information was not disclosed to Durkin, stating that disclosure can only be demanded “where the information sought is material and otherwise unknown and unavailable.” At a minimum, the judge found, “Mr. Durkin knew in in November 2017, that the admissibility process had been initiated because of the the United States criminal charges brought against him in 2013 concerning allegations of securities fraud committed between October 2009 and May 2013 in the State of Alabama.”
In the Red Notice, it was stated that “Durkin and others solicited about $4.9 million USD from customers for the alleged purpose of investing in a high speed computerized arbitrage trading system.” False representation was emailed to the victims, including assertions that the project was being backed by a billionaire business person. The funds were never invested and instead used for personal expenses as well as to repay earlier investors (typical of Ponzi schemes).
Indictments where handed down on May 30 2013 by a Grand Jury sitting in Mobile, Alabama of a scheme to default Westover investors. At a time that Mr. Durkin was either the owner or managing partner of Westover (this article identifies Durkin as “Westover’s managing partner and one of the principal investors.”) Three of the four accused were tried, convicted, and sentenced to five-year prison terms. A court document attached to these convictions states that Mr. Durkin has “absconded” and “fled the country“.
The judge state that the onus was on Durkin to show how he was treated unfairly, yet Durkin failed to offer any substantive evidence that would “distance himself from the three associates …. He is similarly silent as to how he could possibly have remained unaware of the criminal prosecution of the three co-accused including the final disposition of their cases. These were, after all, public proceedings that took place over a number of years.” All that was really required to access this information, says the judge, was inquiries to “obvious sources in Alabama” to access this information.
“I do not accept his argument that he was blind to that evidence; and, even if he was, it was a case of strategic willful blindness.” Durkin, found the judge, was not owed any duty of additional disclosure by the CBSA.
The judge did find, though, that a duty of fairness may be required: “a person can call upon the Delegate for leniency notwithstanding the person’s technical inadmissibility.” The judge called CBSA’s position “dogmatic” and found that their “refusal to disclose relevant and available information for no good reason leads to unnecessary delays and applications like this one.”
Not quite closing the door on Durkin’s appeal, the judge said that he “left open the possibility of certified questions. Mr. Durkin will have seven days to propose a question and the Minister will have seven days thereafter to respond. Subject to the Court remaining seized of the case on that remaining point, the application is dismissed.” A certified question is a very specific question that, when answered, can add clarity to a currently vague interpretation of an aspect of immigration law. In the Overseas Processing Manual OP22 (Section 5.6), it is referred to as “a serious question of general importance.” If the certified question is accepted, it is the only chance of appeal that this case has, as a judge’s ruling at the federal court can generally not be appealed. An appeal can only be granted by the ruling judge. A example list of certified questions is available online.
A letter from counsel for Durkin dated February 19 2019 proposing question for certification was received by the court. The Minister now has seven days (February 26) to respond.
The Sooke Harbour House is owned by the original founders Frederique and Sinclair Philips who started the business in 1979. While they still own it, the Philips have been unable to access the premises since 2017 as the result of a court order. It is currently being managed by Tim Durkin, who owns SHH Holdings and SHH Management.
Durkin did not show up in person at the January 12 hearing. SPN did reach to Durkin through his personal email and through the Sooke Harbour House, but we have not yet heard back from him.
- In June 2013, the FBI issue a release saying that four were charged in a multi-million-dollar ponzi scheme, including T. Durkin.
- Ponzi schemers sentenced to 5 years each over fake stock-market computer program that lost investors millions – published on May 29, 2014 at 4:19 PM
- Man fighting for ownership of renowned Sooke Harbour House hotel accused in U.S. Ponzi scheme Posted on CBC by Jason Proctor: Nov 02, 2018 6:00 AM PT
- Canada Border Services claims manager of Sooke Harbour House is wanted for fraud – SPN,
- The Federal Court number is IMM-3404-18