On the way out? After a court ruling in May, Timothy Durkin comes closer to being deported for organized criminality

He’s faced a multi-million dollar Ponzi scheme indictment in the U.S., findings of misappropriation in Canada and threats of deportation for years—and now Timothy Durkin may finally be out of legal options to stay in Canada.

Born in England in 1951, he grew up in Canada as a permanent resident but spent much of his adult life abroad. He returned to Canada in early 2013, a few months before a grand jury in the U.S. indicted him and three others for financial crimes related to a Ponzi scheme.

Durkin’s associates were convicted of conspiracy, aiding and abetting securities fraud and wire fraud. In 2014, Interpol issued a Red Notice seeking Durkin’s arrest.

According to a Canada Border Services Agency (CBSA) report, the agency learned that Durkin was a fugitive in 2017 and thought he might be deportable for serious criminality and organized criminality based on the U.S. charges. The following year he was referred to the Immigration and Refugee Board (IRB) for an admissibility hearing.

By then, Durkin was living in the small oceanside town of Sooke, B.C., where he’d entered into a share-purchase agreement to buy the Sooke Harbour House, an internationally renowned hotel.

That agreement collapsed spectacularly.

In 2020, a B.C. Supreme Court judge found that Durkin failed to meet his contractual obligations and that he’d had no intention of actually buying the hotel. Durkin was “deceitful and dishonest in virtually all of his business dealings” with the hotel’s owners and misappropriated “at least $120,000,” the judge noted in his ruling. He ordered Durkin to pay about $4 million in damages to the owners, Sinclair and Frederique Philip. The judgment remains unpaid, according to Frederique. “We are totally broke,” she said in an email. The hotel was eventually sold, in foreclosure, to a real estate company.

Although Durkin never faced criminal charges in connection with the Sooke Harbour House fiasco, the British Columbia Securities Commission (BCSC) investigated his business dealings and determined that he’d lied about owning the hotel in order to defraud an investor of $1 million. Last year, BCSC permanently barred him from the securities market and levied $1.6 million in penalties against him. A spokesperson for the commission told the IJF in an email that Durkin “hasn’t paid any portion of his financial sanction.”

In an effort to stay in Canada, Durkin filed a multi-pronged application for citizenship. According to an IRB document, he claimed that he might actually be a citizen, but that, if he wasn’t, the government ought to make him one by either waiving the prohibition on foreign criminality or recognizing that he’d be subject to “special and unusual hardship” without discretionary citizenship.

In February 2022, the U.S. dropped all charges against Durkin. Without a criminal conviction or outstanding charges, the question arose as to whether he could still be deported for organized criminality.

IRB learned that the U.S. Department of Justice’s decision to drop the charges against Durkin hinged on jurisdictional issues and witness availability. “[T]hey saw the odds of obtaining a criminal conviction as a 50/50 proposition,” IRB adjudicator Trent Cook wrote in a January 2023 decision finding Durkin inadmissible to Canada. “This does not mean that the Department of Justice viewed Mr. Durkin as innocent.”

After studying the U.S. case, Cook determined that it was “highly probable that Mr. Durkin either directly knew about the [Ponzi] scheme or was wilfully blind to its existence.”

At the time of the Ponzi scheme, Durkin was the managing partner of Westover Energy Trading Partners. From 2009 to 2012, his associates sold investors on low-risk, near instantaneous trades through Westover’s “high speed, computerized arbitrage trading system,” according to the U.S. indictment. But no trades were ever conducted. Instead, the associates pooled together about US$4.6 million, paying off early investors and then diverting about $1.5 million of the money for personal use, according to U.S. court records.

“The perpetrators of this Ponzi scheme meet the definition of a criminal organization,” Cook wrote. He added, “Though not a ‘member’ of this criminal organization, Mr. Durkin engaged in criminal activity on this organization’s behalf.”

Cook issued a deportation order for Durkin in mid-January 2023. A month later, Immigration, Refugees and Citizenship Canada (IRCC) denied Durkin’s application for citizenship.

Since then, Durkin has continued fighting on several fronts to remain in Canada. He challenged the removal order, filed for ministerial relief, and attempted to reopen the citizenship question in Federal Court, arguing that IRCC had made a “factual error” regarding the date of his family’s arrival in the country and that he is a Canadian citizen “by descent pursuant to the Citizenship Act of 1947.”

On May 21, a Federal Court judge issued an unappealable order, shutting down that avenue.

Chantal Desloges, a member of the Canadian Immigration Lawyers Association, said that the Federal Court docket indicates one last issue appears to be standing between Durkin and deportation.

Durkin was initially slated for removal in December. Upon his request, CBSA twice postponed his deportation so he could receive medical treatment. But the agency refused to grant a deferral for “an indefinite length of time” to accommodate Durkin’s request that he be allowed to remain in the country while his application for ministerial relief is pending.

Durkin has asked for a judicial review of that decision.

In the meantime, his deportation is on hold. In January, a judge barred the government from removing him while he has an outstanding request for a judicial review of CBSA’s deferral decision. If his request is denied, said Desloges, “he’ll be deportable right away.” If it’s granted, it would give Durkin an opportunity to make new submissions that could delay his removal.

Desloges suspects a decision on that question could come within the next three months.

When reached via email, Durkin declined to comment.

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This story was originally published by the Investigative Journalism Foundation.