Following up on yesterday’s hearing delay, the admissibility hearing for Tim Durkin has been once again kicked down the road, this time for another month. It is now set to be heard on December 7 and 8, beginning at 9:15 am and concluding by 4:00 pm. The Canadian Border Service Agency through Mr. Mason Cooke (hereinafter referred to as CBSA) alleges that Mr. Durkin is inadmissible in Canada on the grounds of serious criminality (see the details below).
Counsel for Durkin, while knowing that the hearing would be virtual and conducted on MS Teams since mid-September, only filed a verbal application objecting to the virtual process and objected to the “public” nature of the virtual hearing, at the opening of the two-day hearing. Resolving this application took 1.5 of the 2 days allotted for this hearing. All parties agreed to the later date.
This hearing is the first virtual hearing conducted by the Immigration and Refugee Board of Canada’s (IRB). Trent Cook, the IRB member and decision-maker, made the following decisions:
- An in-person hearing was denied. Holding an in-person hearing would contravene with the provincial health order, and the IRB is already approved for virtual hearings.
- Application to attend as an observer (or media member) must be made directly to IRB. [Note I have no idea how to generally make that request, but if you need an email address, contact me – Britt/SPN]
- For this virtual hearing, no observers can be anonymous. They must identify themselves with First and Lastname, and current geographic location.
- For this virtual hearing, observers are restricted to those in Canada. While their nationality does not matter, they must physically be in Canada at the time of the hearing. This provision was added under Rule 49, and is not intended to set precedence for any other matter.
- Any link received to the virtual hearing is unique to the observing recipience and must not be shared.
- No recording of the event is allowed except for by media who can record for their own note-taking purposes.
The admissibility hearing process in Canada is public, so media or members of the public may attend or report on the proceedings.
The CBSA has had an active interest in Mr. Durkin’s status in Canada since at least November 2018. Durkin appealed the CBSA’s request for a deportation hearing on humanitarian grounds. That appeal was denied, and in February 2019 the deportation hearing was set to proceed.
Between February 2019 and February 2020, Durkin was engaged in another legal matter against Sooke Harbour House Inc. (owned by Frederique and Sinclair Philips), effectively putting the CBSA hearing on hold. The lawsuit, originally scheduled for 25 days ended up lasting for 56 days (about three months of actual court time). A scathing ruling was made in September.
In August, Durkin launched a lawsuit against Facebook. According to a document filed at the Victoria Courthouse on August 20 (and amended on August 25), Timothy C. Durkin has filed a Notice of Civil Claim against Facebook, Inc., and Facebook Canada LTD in the amount of $50 million dollars for aggravated and punitive damages, along with any “further and other relief this Court may deem just and meet.”
CBSA’s interest in Mr. Durkin’s admissibility in Canada revolves around American charges against Mr. Durkin. American court documents (Case 1:13-cr-00117-WS-C Document 224 Filed 07/26/16) show that on December 20, 2013, following a jury trial, David Petersen was on trial for his own participation in a Ponzi scheme along with with Yaman Sencan, Stephen Merry and by accusation Tim Durkin, that resulted in the diversion of $1.5 million from investors/victims into defendants’ pockets.
Referred to as the “fugitive defendant,” Mr. Durkin, while never tried, was mentioned throughout the trial of Petersen. “[T]he Government did not prove up a different conspiracy omitting the fugitive defendant, Tim Durkin, but rather ‘mentioned Durkin’s participation in the scheme throughout the trial’.”
Again, according to the above 2013 court document, the FBI had filed an Interpol Red Notice and entered an arrest warrant into NCIC in an attempt to apprehend fugitive defendant Tim Durkin.
It is important to note that Mr. Durkin, while indicted was never apprehended, was not tried, and has not been convicted of any crime.
IMMIGRATION AND REFUGEE BOARD OF CANADA (IRB), Immigration Division admissibility hearing
- Person concerned: Mr Timothy DURKIN
- Immigration and Refugee Board of Canada member (decision-maker): Mr Trent COOK
- Minister’s counsel (Canada Border Services Agency hearings officer): Mr Mason Cooke
- Counsel for the person concerned: Ms Erica Olmstead
Allegations: The allegations of the Minister (CBSA) are that Mr Durkin is inadmissible to Canada on the grounds of 36(1)(c) and 37(1)(a) of the Immigration and Refugee Protection Act (IRPA).
The Act, and the charge of serious criminality:
- 36(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
- (a)having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
- (b)having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or
- (c)committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
- 37(1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for
- (a)being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or
- (b)engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime.