A-6362465.
Decided by Central Office August 27, 1946. Decided by Board March 3, 1947.
Crime involving moral turpitude — Damaging private property — Violation section 539 of the Canadian Criminal Code — Robbery with violence on the person — Violation section 446 of the Canadian Criminal Code.
(1) The offense of damaging private property in violation of section 539 of the Canadian Criminal Code does not involve moral turpitude.
(2) The offense of robbery with violence on the person in violation of section 446 of the Canadian Criminal Code does involve moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Convicted of crimes; theft, section 386, Canadian Criminal Code; damaging private property, section 539, Canadian Criminal Code; robbery with violence on the person, section 446, Canadian Criminal Code.
BEFORE THE CENTRAL OFFICE
(August 27, 1946)
Discussion: On July 9, 1946, the appellant applied for admission into the United States at Thousand Islands Bridge, N.Y., and was referred to a Board of Special Inquiry which, after hearings conducted on July 9, 1946, and August 2, 1946, ordered him excluded on the above stated grounds. He has appealed from this decision. The appellant testified that he was born in Kingston, Ontario, Canada, on December 18, 1925, and is a citizen of Canada. He has never been admitted to the United States for permanent residence. He was granted voluntary departure from the United States on July 29, 1945. The appellant identified an arrest record introduced into this record as exhibit 1, as relating to him. He consented on July 9, 1946, to the introduction of exhibits 4, 5, and 6, in his absence. This consent was given after he was duly notified.
On October 21, 1944, the appellant was convicted in Kingston, Ontario, Canada, for the following offense: Unlawfully stealing a purse containing $20 cash and other articles from a certain Hall, such cash and property belonging to another person and valued over $25, in violation of section 386 of the Canadian Criminal Code.
In view of the nature of the articles stolen and the manner of its commission, it may be fairly implied that there was an intent on the part of the appellant to permanently deprive the owner of his property. It is, therefore, concluded that the foregoing offense for which the appellant was convicted on October 21, 1946, was an offense which involved moral turpitude.
On October 21, 1944, the appellant was convicted at Kingston, Ontario, Canada, for the following offense: That he did without colour of right willfully do damage to private property, to wit: Break a glass in the door of a certain building, in violation of section 539 of the Canadian Criminal Code.
This offense is similar to that known in our jurisprudence as malicious mischief involving an evil intent, to wit: To willfully destroy property. It is noted that the appellant was over 16 years of age when he was convicted for this offense and since the age of juvenile delinquents has not been raised in the Province of Ontario to 18 years of age by an order of council, it has been concluded that the appellant was not convicted for this offense as a juvenile delinquent. Since this offense involves a willful destruction to property, it is concluded that it is an offense which involves moral turpitude.
On November 23, 1944, the appellant was convicted in Kingston, Ontario, Canada, for the following offense: That he did unlawfully rob a certain person and at the same time did use personal violence to such person, in violation of section 446 of the Canadian Criminal Code.
The nature and manner of the commission of this offense indicate that it may be fairly implied that the appellant intended to deprive the owner of his property permanently, inasmuch as he robbed from the person and with use of violence. It is, therefore, concluded that the appellant is subject to exclusion on the above-stated grounds.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant was born at Kingston, Ontario, Canada, on December 18, 1925, and is a citizen of Canada;
(2) That the appellant has never been admitted to the United States for permanent residence;
(3) That the appellant wishes to enter the United States for a temporary visit;
(4) That the appellant was convicted at Kingston, Ontario, Canada, on October 21, 1946, for theft in violation of section 386 of the Canadian Criminal Code;
(5) That the appellant was convicted in Kingston, Ontario, Canada, on October 21, 1944, for the willful damage to private property, in violation of section 539 of the Canadian Criminal code;
(6) That the appellant was convicted on November 23, 1944, at Kingston, Ontario, Canada, for unlawfully robbing another person and using personal violence to such person, in violation of section 446 of the Canadian Criminal Code.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 3 of the act of February 5, 1917, the appellant is subject to exclusion on the ground that he was convicted of a felony or other crime or misdemeanor involving moral turpitude, to wit: Theft in Canada in 1944 in violation of section 386 of the Canadian Criminal Code, willful damage to property in Canada in 1944, in violation of section 539 of the Canadian Criminal Code; and robbery from the person with violence in 1944 in Canada, in violation of section 446 of the Canadian Criminal Code.Other Factors: The appellant attempted to misstate his age at the time of the commission of some of these offenses which he had identified in exhibit 1 as pertaining to him, by stating that he was 15 years of age when they were committed. His record as a juvenile delinquent speaks for itself. He has no urgent reason for coming to the United States.
Order: It is ordered that the excluding decision of the Board of Special Inquiry be affirmed.
In accordance with 8 C.F.R. 90.3, the case is referred to the Board of Immigration Appeals for consideration.
Discussion: Appellant is a native and citizen of Canada, born December 18, 1925. He is inadmissible on the first and third grounds stated above. With respect to the second ground, the court records show that the alien was convicted in Canada in October 1944 because appellant "did without color of right willfully do damage to private property, to wit: Break a glass in the door of McRae's Wholesale * * *" contrary to section 539 of the Canadian Criminal Code. For this offense appellant was sentenced to pay damages and costs of $1 and placed on probation for 1 year. The question is whether the offense involves moral turpitude. Section 539 provides:
Everyone who willfully commits any damage, injury or spoil to or upon any real or personal property, either corporeal or incorporeal, and either of a public or private nature, for which no punishment is hereinbefore provided, is guilty of an offense and liable, on summary conviction, to a penalty not exceeding twenty dollars, and such further sum, not exceeding twenty dollars, as appears to the justice to be a reasonable compensation for the damage, injury, or spoil so committed, to be paid in the case of private property to the person aggrieved.
If such sums of money, together with the costs, if ordered, are not paid either immediately after the conviction, or within such period as the justice, at the time of the conviction appoints, the justice may cause the offender to be imprisoned for any term not exceeding 2 months, with or without hard labor.
An offense involves moral turpitude only if it is inherently base, vile, or depraved. We do not think that the offense created by section 539 meets this requirement. There is no malice involved. The term "willfully" does not add great evil to the offense because this term is defined in section 509 of the Canadian Criminal Code as follows:
Everyone who causes any event by an act which he knew would probably cause it, being reckless whether such event happens or not, is deemed for the purposes of this part to have caused it willfully.In Matter of G----, 56127/617 (June 29, 1943), this Board held that the offense created by section 510 (d) (5) involves moral turpitude. Section 510 has to do with willful destruction or damage to property. The maximum punishment under that section is 5 years' imprisonment. Under section 539, however, the maximum punishment is $20 and reasonable compensation for the damage, also not exceeding $20. Imprisonment for not more than 2 months may be ordered, but this provision is designed to assure payment of the fine and compensation. We think that section 539 was designed primarily not as a criminal statute but as a means to force payment of compensation for minor damage to property. We think that the offense does not involve moral turpitude. We are reinforced in our belief by consideration of the only Canadian case which has come to our attention that appears to throw light on the nature of the statute ( Rex v. Entwhistle (1927) 2 Dom. Law Rep. 558 (Nova Scotia Sup. Ct. 1926)). The defendant was convicted for wilfully damaging personal property. The evidence showed that he drove his car at a speed of 35 or 40 miles an hour, crossed to the wrong side of the road, and struck a bus which he damaged. The court held that the trial judge was justified, on the facts, in finding that the damage was willful, because the defendant was reckless whether the event happened or did not happen. The decision does not set forth specifically the statute under which the defendant was convicted. However, the headnote of the case refers to section 510, and the language quoted in the opinion, apparently taken from the statute, indicates that the defendant was convicted under section 510 (e).
Section 510 provides for the punishment of any person "who willfully destroys or damages" certain kinds of property. Thus, the Entwhistle case holds in effect that in Canada a person may be convicted for willfully damaging property under section 510, although in the United States the offense would be regarded ordinarily as nothing more than reckless driving. In other words, the term "willfully" is defined so broadly that it covers a case of what courts in the United States would regard as gross or wanton negligence. And if a conviction may be had under section 510 for what amounts to nothing more than reckless driving or gross negligence, then a fortiori the same would be true with respect to section 539. If the statute is so broad that it covers gross negligence, we think that the offense cannot be regarded as inherently base, vile or depraved. This confirms us in our belief that section 539 does not involve moral turpitude.
Accordingly, the first conclusion of law proposed by the Commissioner is changed to read:
That under section 3 of the Immigration Act of 1917, the appellant is inadmissible on the ground that he has been convicted of a crime involving moral turpitude, namely, theft in Canada in 1944 in violation of section 386 of the Canadian Criminal Code; and robbery from the person with violence in Canada in 1944 in violation of section 446 of the Canadian Criminal Code.
The following is added to the conclusions of law:
(2) That under section 3 of the Immigration Act of 1917 appellant is not inadmissible on the ground that he has been convicted of a crime involving moral turpitude, namely, wilful damage to property in Canada in 1944 in violation of section 539 of the Canadian Criminal Code.
The year "1946" in the fourth finding of fact is changed to read "1944."
Upon consideration of the entire record, the findings of fact and conclusions of law proposed by the Commissioner are hereby adopted, subject to the changes made above.
Order: It is ordered that the excluding decision of the Board of Special Inquiry be affirmed, solely on the ground that appellant has been convicted of crimes involving moral turpitude, namely: Theft in 1944 and robbery with violence in 1944.