56107/183
Decided by the Board October 14, 1942.
Crime involving moral turpitude — Perjury (Canada).
Perjury as defined by section 170 of the Canadian Criminal Code does not involve moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Convicted of or admits commission of crime involving moral turpitude — perjury.
Executive Order 8766 — No passport visa or border-crossing card.
Mr. J.H. Krug, Board attorney-examiner.
STATEMENT OF THE CASE: On May 25, 1942, a board of special inquiry at International Falls, Minn., excluded appellant on the above grounds, and he appeals.
DISCUSSION: Appellant is a native and citizen of Canada, 26 years old, single. He desires to enter the United States from time to time for temporary periods in order to haul pulpwood to this country. He appears to be a bona-fide visitor, but he does not possess a passport visa or a border-crossing card, although he presents a Canadian passport.
The evidence contains a copy of court records showing that in April 1938 appellant was convicted in the Court of General Sessions of the Peace of Rainy River, Ontario, on six counts of perjury committed by appellant as a witness in a criminal trial. The record shows that he was sentenced to imprisonment for 6 months and to a fine of $50. Appellant testifies that this record applies to him, and he admits that he committed the crime of perjury.
The language of the court record shows that appellant was convicted for violation of section 170 of the Canadian Criminal Code:
Perjury is an assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence, upon oath or affirmation, whether such evidence is given in open court, or by affidavit or otherwise, and whether such evidence is material or not, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury, or person holding the proceedings. * * * [Italics supplied.]
This crime is named perjury, but in eliminating the requirement of materiality, the offense differs essentially from the common law definition of perjury adopted in statutes throughout the United States, and embodied in section 125 of the United States Criminal Code ( 18 U.S.C., sec. 231) ( United States v. Norris, 300 U.S. 564, 574 (1937)). It is plain that the crime of perjury as defined by common law involves moral turpitude. See United States ex rel. Boraca v. Schlotfeldt, 109 F. 2d 106 (C.C.A. 7, 1940). But the Canadian statute creates a crime which, despite the name given it, is not perjury at all, but rather an attempt to mislead justice. The statutory purpose and the nature of the offense have been discussed by the Canadian courts.
Drew v. The King, 6 Can. Crim. Cases 241 (K.B. Que. 1902) arose out of an action of trespass by Drew against a neighbor. Drew was found guilty of perjury for testimony he gave in the trespass action. Under the Canadian statutes the action should have been brought before a magistrate residing in the county where the offense was committed. Actually, however, the case was brought before a magistrate who was not a resident of that county, and Drew urged in the perjury proceeding that the court had no jurisdiction and, therefore, that he could not be guilty of perjury. The court dismissed this contention. It pointed to section 171 of the Criminal Code which provides that every proceeding is "judicial" which is held before
any person acting as a court * * * having power to hold such judicial proceeding whether duly constituted or not, and whether the proceeding was duly instituted or not before such court or person so as to authorize it or him to hold the proceeding, and although such proceeding was held in a wrong place or was otherwise invalid.
Thus, the case does not turn on the issue of materiality, but the language of the court throws light on the purpose of the statute:
All who had experience in former years in prosecutions before our criminal courts are aware of the serious technical difficulties which made convictions of perjury almost impossible. The common law of England, which was in force here in criminal matters, exacted that the alleged false evidence must have been material to the issue in the case in which it was taken, and, secondly, that the tribunal before which the sworn statement was made must have been regularly constituted and have possessed competent jurisdiction to hear and adjudicate upon the case. So that if a false statement were made by a witness, he could not be punished for it unless it related to the exact issue which was under consideration, and, equally, if having thus sworn falsely, he could, upon his trial for perjury, establish that the magistrate had not taken the oath of allegiance, or lacked the proper qualification, or did not possess the technical jurisdiction, territorial, or otherwise, to try the case, the witness guilty of an attempt to mislead justice by false evidence escaped conviction and punishment. This was admitted to be a cause of a serious miscarriage of justice, and a persistent effort was made to correct both abuses. The first suggestion made was to abolish materiality as an essential condition of a conviction for perjury. Our Parliament at once accepted the modification and, by 32-33 Vict. (1869), chapter 23, section 7, declared that any false statement made by a witness in a judicial proceeding should be held to be material to the issue then pending.
This removed a part of the difficulty, but the other remained, and still exists and hampers the administration of criminal justice in Great Britain. So many similar abuses existed there that in 1880 an Imperial Commission was appointed, headed by Sir James Stephen, the eminent expert in criminal law, to examine the whole body of English criminal law and report upon the changes that seemed to them necessary and desirable. Their report was voluminous and exhaustive. In regard to the offence of perjury they recommended that materiality should not be insisted upon as an essential condition for conviction. In regard to the existing conditions as to the technical constitution of the courts and the qualifications of the magistrate, they recommended very radical changes, nothing less in fact, than the abolition of all the class of objections which made convictions so difficult. A bill was introduced in the English Parliament to give effect to these recommendations, but in the pressure of other work and in consequence of the slowness of the English people to effect changes even in the way of improvement, the bill has not yet passed the committee stage. Our Parliament, however, recognizing the benefits to be derived from the commissioners' work, availed itself of the first opportunity to give effect to their recommendations. Our whole criminal law was consolidated and codified in 1892, and almost every change suggested by the Imperial Commission was adopted. That in regard to the offence of perjury was adopted without the change of a word, and article [section] 145 of our Criminal Code of 1892 is the reproduction of the definition I have quoted above, both as to the offense itself and the term "judicial proceeding."
This judgment was affirmed by the Supreme Court of Canada ( Drew v. The King, 6 Can. Crim. Cases 424 (1903)).
In The King v. Howley, 20 Can. Crim. Cases 36 (Court of Sessions of the Peace, Montreal, 1911), the defendant contended that he could not be guilty of perjury, because his false depositions were not given in the presence of the judicial officer, as required by statute. The court rejected this contention, saying on pages 37-38:
Under the old criminal law of our country so many technical objections could be raised that it was almost impossible to obtain a conviction of those who were guilty of perjury. The English common law, which was then in force with us, required that the false testimony should be on a point which was material to the issue and that the court before which the testimony was given should be regularly constituted. These technicalities had the effect of rendering the punishment of perjury almost illusory. They awoke to this danger in England, and in 1880 a commission, of which Sir James Stephens was president, was appointed with instructions to investigate the English criminal law and make a report.
As far as perjury is concerned this commission recommended that the word "material" should be struck out, as not being essential to obtain conviction. With regard to the constitution of the courts and the qualification of judges, it recommended, in a word, certain radical changes, which had the practical effect of doing away with all the objections which rendered the punishment of perjury so difficult. * * * Our Criminal Code was revised in 1892 and article 171 is the reproduction of paragraph 5, which I have just quoted. It follows that the intention of our Parliament in adopting this article was to declare that any false assertion made under oath before justice, constituted perjury and was to be considered as an attempt to mislead justice.
The court then set forth the above-quoted language from section 171, and concluded:
In short, the law wishes that it should be perjury to swear falsely by affirming a fact which is known to be false with the intention of misleading justice.
In these cases the issue was a defect in the jurisdiction in the court where the false testimony was given. But the excerpts from the decisions make it abundantly clear that section 170 was designedly drawn to eliminate the requirement of materiality. Although the offense is described as perjury, it differs from the common law offense of perjury which has become embodied in State and Federal statutes in the United States. A review of a large number of the reported Canadian cases indicates that in nearly all instances the false testimony was actually material. This, however, is of only passing significance, because the offense must be judged by the statutory description. According to the statute, a person is guilty if he knowingly gives false evidence in a judicial proceeding, with intent to mislead the court. Accordingly, a witness is guilty of perjury in Canada if he or she lies about his age or gives other false testimony that is completely immaterial to the issue. If the Canadian statute were drawn to condemn false testimony as to age of the witness, we would regard the offense as malum prohibitum, as opposed to malum per se, and we would find that the offense did not involve moral turpitude. Here, as we have seen, the crime by definition does not necessarily involve moral turpitude. It is irrelevant that the appellant's false testimony for which he was convicted was actually material, and that it falls within the definition of perjury contained in section 125 of the United States Criminal Code. See United States ex rel. Guarino v. Uhl, 107 F.2d 399 (C.C.A. 2, 1939).
Since we have found that the offense defined by section 170 of the Canadian Criminal Code does not involve moral turpitude, appellant is not inadmissible on the ground that he was convicted of or that he admits commission of that crime. The excluding decision will be affirmed solely on the ground that appellant does not possess the required documents. Since there appears to be no other obstacle to his admissibility, he should be given permission to reapply within 1 year when in possession of the proper documents.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That appellant is an alien, a native and citizen of Canada;
(2) That appellant desires the border-crossing privilege for business;
(3) That he does not possess a passport visa or a nonresident alien's border-crossing card;
(4) That in April 1938 appellant was convicted in Canada for violation of section 170 of the Canadian Criminal Code, designated as "perjury," and he admits that he committed this offense.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under Executive Order 8766 of June 3, 1941, appellant is inadmissible because he does not possess a passport visa or a nonresident alien's border-crossing identification card;
(2) That under section 3 of the Immigration Act of 1917 appellant is not inadmissible on the ground that he has been convicted of or that he admits the commission of a crime involving moral turpitude, namely, section 170 of the Canadian Criminal Code.
ORDER: The excluding decision is affirmed solely on the ground that appellant does not possess a passport visa or a nonresident alien's border-crossing identification card, as required by Executive Order 8766 of June 3, 1941.
Appellant is hereby given permission to reapply within 1 year when in possession of the required documents.