A-6615506.
Decided by Central Office April 16, 1947. Decided by Board April 23, 1947.
Crime involving moral turpitude — Theft of automobile — Violation of Section 377 of the Criminal Code of Canada — Evidence.
The offense of theft of an automobile in violation of section 377 of the Criminal Code of Canada does not involve moral turpitude if there is no showing that a "permanent taking" was involved, and the mere fact that the charge was laid under such section, instead of the "joy-riding" section (285 (3) of the Criminal Code of Canada), is not determinative on the question of "permanent taking."
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
BEFORE THE CENTRAL OFFICE
On March 10, 1947, the appellant applied for admission into the United States at Port Huron, Mich. and was held for a Board of Special Inquiry which, after a hearing conducted on March 10, 1947, ordered him excluded on the above stated ground. He has appealed from this decision.
Upon consideration of the entire record, the findings of fact and conclusions of law of the Board of Special Inquiry read to the appellant on March 10, 1947, are hereby adopted except that Finding of Fact No. 5 is added to read as follows:
(5) That the appellant has never been admitted to the United States for permanent residence heretofore;
And Finding of Fact No. 6 is added to read as follows:
(6) That the appellant was arrested and deported from the United States, in 1939, but was subsequently granted permission to reapply after such arrest and deportation.
The appellant is a 30-year-old male, an alien, a native and citizen of Canada, who has never been admitted to the United States for permanent residence heretofore. He was arrested and deported from the United States, in 1939 and was subsequently granted permission to reapply after such arrest and deportation. He was granted temporary admission into the United States by the Board of Immigration Appeals on January 1, 1943, under the ninth proviso (in view of his admission of the commission of and his conviction of theft of an automobile in 1936, in Canada in violation of section 377 of the Criminal Code of Canada).
When this case was considered heretofore consideration was not given to the distinction between offenses involving theft in Canada and those involving theft in the United States, which the Attorney General mentioned in his ruling on February 24, 1944. (In the Matter of T----, 56156/249, February 24, 1940.) This view of the Attorney General was considered by the Board of Immigration Appeals in the Matter of H----, 56237/836 (November 15, 1944). It has accordingly been held that the element which must exist before the crime of theft or stealing is deemed one involving moral turpitude is that the offense must be one which involves a permanent taking as distinguished from a temporary one. ( Matter of W----, 56143/310 (June 15, 1943); Matter of C----, 6016269 (Feb. 21, 1945); Matter of P----, 6016250 (Feb. 23, 1945); Matter of W----, 56130/185 (renumbered A-5624423) (Mar. 17, 1945)).
The Attorney General in the Matter of T---- ( supra), stated as follows:
On the whole, it is quite apparent to me that a person may be convicted of theft in Canada, when the real offense is not known by that name in our law and does not involve moral turpitude. The cases cited in the opinions of the Board indicate that this does actually happen. In these circumstances it is necessary to go beyond the statute and to consider such facts as may appear from the record of conviction or from the admissions of the alien, in order to determine whether the offense is one which in our law involves moral turpitude.
It is noted that the statute under which the appellant was convicted is distinguishable from section 285 (3) of the Criminal Code of Canada, which latter statute is similar to American statutes dealing with "joy riding" or conversion. It has been held, however, that the offenses under these sections are distinct and that where elements of theft are present it is the duty of the Crown to lay the charge under the section dealing with theft ( Hirshman v. Beal (1916) 38 O.L.R. 40, 28 C.C.C. 319; R. v. Vanbuskirk (1921) 48 N.B.R. 297, 35 C.C.C. 203). The mere fact that the appellant was convicted under section 377 of the Criminal Code of Canada instead of under section 285 (3) does not throw any light on whether the taking in this case was temporary or permanent.
The appellant states that he took another's car (belonging to a certain doctor) for some irrational cause while in a state of excitement and vexation with his father. He states that he intended to return this car. The record shows that he was allowed to go on a suspended sentence for 1 year. The appellant explains that he set out from his own home in his father's car but decided later to have someone else drive the car back because he did not want to raise an argument; that acting later on impulse he got into the doctor's car and drove to Toronto. He stated that when he got to Toronto he parked the car and while having something to eat in a restaurant, reflected on what he had done and thereupon decided to bring the car back to Sarnia, where he had picked it up in front of the hospital; that the car ran out of gas and he left the car in front of a garage and hitchhiked home. He stated that the car was fully equipped and brand new and that he left it in the same condition he found it except for being out of gas and that if the car had sufficient gas he would have brought it back to Sarnia. It is concluded from the foregoing that the offense for which the appellant was convicted does not involve an intent to deprive the rightful owner of his property permanently and for that reason does not involve moral turpitude.
The appellant desires to reside in the United States, where he has his wife and children. It appears that the American Consul told him that he would be unable to procure an immigration visa because of his above conviction. He is in possession of a Canadian passport valid until October 9, 1948. He is subject to exclusion on the above stated documentary ground but not on the criminal grounds.
Order: It is ordered that the excluding decision of the Board of Special Inquiry be affirmed, without prejudice to the alien's application for readmission into the United States when in possession of appropriate documents.
In accordance with 8 C.F.R. 90.3 this case is referred to the Board of Immigration Appeals for consideration.
Upon consideration of the entire record, it is ordered that the decision of the Commissioner be and the same is hereby affirmed.