An immigration hearing into whether the former manager of the Sooke Harbour House can remain in Canada was halted Tuesday after it was learned that Timothy Durkin applied for citizenship 11 months ago.
What happens next is up to the Immigration and Refugee Board’s Trent Cook. He will determine in the next week or so whether the hearing will proceed or be put on hold pending a citizenship decision.
Cook had sharp words about the discovery. “As a public servant that’s charged with adjudicating proceedings … I don’t like these types of surprises in my hearing room.”
Admissibility hearings, which can lead to deportation, are only for permanent residents and foreign nationals, not Canadians.
“This is not a case where the person subject to the hearing had some type of recent epiphany that he could be a Canadian citizen,” Cook said.
In this case, the application for citizenship has been with the Canadian government for nearly a year.
“So in that time period, by not disclosing the fact that an application has been made, we have the minister wasting public resources enforcing an act against someone that might be Canadian and we have the division — amidst COVID-19 I will say — bending over backwards to adjudicate a proceeding that we may not even have authority to adjudicate,” Cook said.
“In my mind, you wasted my time.”
On Tuesday, Durkin lawyer Erica Olmstead said a three-part citizenship application had been submitted. “It is a very complicated application.” One part tackles an interpretation of the word “citizen” under the Canadian Charter of Rights and Freedoms.
She said that it was not the intent to withhold the citizenship application information.
Durkin believes he is entitled to Canadian citizenship because he came to Canada at 14 months old with his parents, who had been living here earlier, and grew up in this country. He moved back to Canada from the U.S. several years ago, and has permanent resident status here.
Mason Cooke, a Canada Border Services Agency hearings officer, said it seems fruitless to continue with planned submissions on the question of Durkin’s admissibility to Canada if in the end Durkin is granted citizenship. The admissibility hearing would be moot in that case, he said.
The hearing was held because of allegations of serious criminality and organized criminality in the U.S., where Durkin was indicted in 2013 on allegations of securities and wire fraud. He denies the allegations.
Three other co-accused were convicted. Durkin said he did not know two of the co-accused.
Prior to the suspension of the hearing, Durkin testified that he cut ties with Stephen Merry — later a co-accused — after learning that another person invested $1 million with Merry, believing the investment was with Durkin.
Durkin figured that Merry had been raising money on a company owned by Durkin and partner without their knowledge or consent.
He had been trying to see the books on Merry’s company to find out what representations and been made and how much money had been invested.
Durkin left the U.S. to come to Canada. Durkin said that in 2014 to 2015 he had contacted U.S. law firms but was told that American law enforcement was not interested in him.
He also said that he could not find any indication that he was wanted by U.S. officials.
Durkin told the hearing that he did not know about charges until CBSA sent a package of material to his Canadian lawyer.
Three months ago, a B.C. Supreme Court judge awarded the previous owners of the Sooke Harbour House $4 million after a civil trial over a share-purchase agreement with two companies headed by Durkin. The judge dismissed a claim from the two companies.
