56038/653A
Decided by Central Office October 24, 1947 Decided by Board March 10, 1948
Crime Involving Moral Turpitude — Canada — Sections 405, 444 of the Canadian Criminal Code — Conspiracy (section 573 of C.C.C.) — Offenses involving fraud or intent to defraud — Criteria as to moral turpitude in foreign offenses, according to standards prevailing in the United States — Going outside the record of conviction — Juvenile delinquency as element.
(1) Conspiracy, with intent to defraud, in violation of section 444 of the Canadian Criminal Code involves moral turpitude. (See 2 IN Dec. 754.)
(2) Conspiracy, to commit the crime of false pretenses with intent to defraud in violation of section 405 (C.C.C.), such conspiracy in violation of section 573 of the C.C.C., involves moral turpitude. (See 2 IN Dec. 542.)
(3) Obtaining property by false pretenses with intent to defraud, in violation of section 405 of the Canadian Criminal Code, involves moral turpitude. (See 2 IN Dec. 836. Also see Jordan v. De George, 341 U.S. 223.)
(4) The principle set forth in Matter of O'N---- ( 2 IN Dec. 319) does not apply in this case. (Juvenile delinquency as element in determining moral turpitude.)
(5) The principle set forth in Matter of T---- ( 2 IN Dec. 22) does not apply in this case. (Going outside record of conviction to determine moral turpitude in foreign offenses.)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits commission of crime, false pretenses with intent to defraud (4 offenses) in Canada, in violation of section 405 of the Criminal Code of Canada.
Act of 1917 — Convicted of crimes of conspiracy with intent to defraud in Canada, in violation of section 444 of the Criminal Code of Canada; conspiracy to commit the crime of false pretenses with intent to defraud in violation of section 405, such conspiracy in violation of section 573 of the Criminal Code of Canada; obtaining property by false pretenses with intent to defraud (4 offenses), in violation of section 405 of the Criminal Code of Canada.
BEFORE THE CENTRAL OFFICE
Discussion: On June 19, 1947, the Board of Immigration Appeals directed that the hearing be reopened in this case so that the statute violated in Canada in 1916 as a result of which the appellant was convicted, could be established. A reopened hearing was conducted on October 3, 1947 in accordance with the foregoing and there was introduced into the record three conviction records in regard to the offenses of which the appellant was convicted in Canada in 1916 which show that the particular statute violated in those three cases was section 405 of the Criminal Code of Canada, which was considered by this Service as being the statute violated in its memorandum of April 28, 1947. The Board of Special Inquiry in this case readopted the findings of fact and conclusions of law of April 14, 1947. Upon consideration of the entire record, the findings of fact and conclusions of law of the Board of Special Inquiry on April 14, 1947, are hereby adopted, except Finding of Fact No. 9 which is modified to read as follows:
(9) That on March 10, 1916, the appellant was convicted in Toronto, Ontario, Canada on his plea of guilty of the charge of obtaining by false pretenses (3 offenses), with intent to defraud, in violation of section 405 of the Criminal Code of Canada, committed in February 1916.
The appellant is an alien, a native and citizen of Canada, who testified that he was born on June 14, 1898. He has never been lawfully admitted to the United States for permanent residence heretofore. He desires to reside here. He is not in possession of an immigration visa. He did not present a passport or other official travel document in lieu thereof issued by the government of the country to which he owes allegiance showing his origin and identity. He is subject to exclusion on the above-stated documentary grounds.
The record shows that on March 10, 1916, the appellant was convicted, upon his plea of guilty, in Toronto, Canada, for the following three offenses:
(1) For having on February 16, 1916, fraudulently and knowingly by false pretenses obtained from another person (X), $9.48 in money and 52 cents worth of goods, with intent to defraud;
(2) For having on February 16, 1916, fraudulently and knowingly, by false pretenses obtained from another person (Y), $9.50 in money and 50 cents worth of goods, with intent to defraud;
(3) For having on February 17, 1916, fraudulently and knowingly, by false pretenses obtained from another person (Z), $9.75 in money and 25 cents worth of goods, with intent to defraud.
As a result of his conviction for these offenses he was sentenced to 90 days in jail.
The present record of conviction indicates that the statute violated in the above cases was section 405 of the Criminal Code of Canada.
The first Criminal Code of Canada was enacted in 1892 as chapter 29 of the statutes of that year. This code, as amended, was consolidated in each of the subsequent revisions of the Dominion Statutes, being chapter 146 in R.S.C. 1906, and chapter 36 in R.S.C. 1927. The present code, as part of the 1927 revision, came into force, by proclamation, on February 1, 1928.
The first paragraph of section 405 as it now stands had its source in the 1892 code, as section 359 thereof; it appeared in the code of 1906 as section 405; and what is now subdivision 2 of section 405 was added by chapted 18, section 6, 1908, such provision being taken from section 13 (1), of the Debtors' Act, 1869, Imp., chapter 62. There is no question but that the pertinent parts of section 405 as consolidated into the 1927 revision of the code was the statute in existence at the time of the offenses in question at the time of conviction and sentence in Ontario, Canada, in 1916. This answers the attorney's inquiry as to whether the record might be made to show "the date of the creation of" section 405 of the Criminal Code of Canada, presumably in reference to the year 1916 in connection with the commission and conviction as to these offenses.
Section 405 of the Criminal Code of Canada which obtained in 1916 reads as follows:
405. Everyone is guilty of an indictable offense and liable to 3 years' imprisonment who, with intent to defraud, by any false pretense, either directly or through the medium of any contract obtained by such false pretense, obtains anything capable of being stolen, or procures anything capable of being stolen to be delivered to any other person than himself.
2. Everyone is guilty of an indictable offense and liable to 1 year's imprisonment who, in incurring any debt or liability, obtains credit under false pretenses, or by means of any fraud.
It is to be noted that an intent to defraud is an essential element of the offense of obtaining by false pretenses in violation of section 405.
In R. v. Bennett; R. v. Newton (1913), 9 Cr. App. R. 146, 23 Cox 609; 109 L.T. 747, Darling, J., said:
In order to establish the offense of obtaining money by false pretenses it is necessary to prove what was laid down by Buckley, J.
In re London Globe Finance Corp. (1903), 1 Chapter 728, 72 L.J. chapter 368, he says:
To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practicing the deceit knows or believes to be false. To defraud is to deprive by deceit; it is by deceit to induce a man to act to his injury.
In the above passage, Buckley, J., continued:
More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.
Aside from a general mens rea contemplated under Canadian law, this statute (section 405, supra), by its very definition, includes a specific intent which must be proved as an ingredient of the offense. The Board of Immigration Appeals has consistently held that crimes laid under sections 404 and 405 of the Criminal Code of Canada involved moral turpitude ( Matter of McL----, 56106/132, November 25, 1943; Matter of R----, 56158/636, July 1944; Matter of L----, A-6002353, January 2, 1945; Matter of M----, 56175/411, May 25, 1945; File 56168/11, January 19, 1944).
Whether a particular crime involves moral turpitude is determined by standards prevailing in the United States, 37 Op. Atty. Gen. 293 (1933); 39 Op. Atty. Gen. 95, 96 (1937); 39 Op. Atty. Gen. 215, 220 (1938). The lower court's opinion in U.S. ex rel. Mylius v. Uhl, 203 F.152, 154 (S.D.N.Y., 1913), affirmed 210 F. 860, has been considered a controlling landmark in immigration law. It stands for the proposition that a crime must by its very nature and at its minimum, as defined by statute, involve an evil intent before a finding of moral turpitude would be justified. The test then, is whether the act is accompanied by a vicious or corrupt mind. Malicious intention or what is equivalent to such intention is the broad boundary between crimes involving moral turpitude and those which do not. (Opinion, Solicitor of Labor, No. 4/561, December 5, 1922.) This criterion has been reaffirmed (No. 4/593, March 1, 1923) and adopted by the courts. ( U.S. ex rel. Mongiovi v. Karnuth, 30 F. (2d) 825 (D.C.W.D.N.Y., 1929).) In U.S. ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2, 1931), it was said that: "* * * it is in the intent that moral turpitude inheres" and in U.S. ex rel. Shladzien v. Warden, 45 F. (2d) 204, 205, 206 (D.C.E.D., Pa., 1930), the court stated: "The moral turpitude of the offense springs from the intent * * *."
In these offenses mentioned above the vicious corrupt mind is shown from the evil intent, to wit: an intent to defraud. That there has been no question raised that "an intent to defraud" in Canada may not be readily compared to "an intent to defraud" in the United States is supported by the above-mentioned decisions made by the Board of Immigration Appeals, to which are added several cases referring to obtaining money or property under false pretenses with intent to defraud, in the United States (56112/285, April 1, 1943 (Mich.), 56156/392, April 28, 1944 (Ariz.), 56041/147, October 21, 1942 (N.J.)).
In addition it should be noted that offenses involving an intent to defraud revenue of the United States Government or the Canadian Government had been held to involve moral turpitude (56096/221, September 30, 1941, and 56032/564, February 16, 1944). The courts have amply clarified that an offense involving moral turpitude is present when the offense involves an intent to defraud. ( U.S. ex rel. Berlandi v. Reimer, et al., 30 F. Supp. 767 (D.C.N.Y., 1939) affirmed 113 F. (2d) 429 (C.C.A. 2, 1940); Maita v. Haff, 116 F. (2d) 337 (C.C.A. 9, 1940).)
Obtaining relief under false pretenses in Canada has been held to involve moral turpitude (56172/109, October 10, 1944). Obtaining money under false pretenses in violation of section 67 of the Unemployment Insurance Act of 1945 has been held to involve moral turpitude ( Matter of D----, A-6322982, April 1, 1947, where an intent to defraud was considered to be an essential element of this offense and, therefore, the offense was deemed to involve moral turpitude). The issuing of checks without sufficient funds and with intent to defraud has been held to involve moral turpitude ( U.S. ex rel. Portado v. Day, 16 F. (2d) 328 (D.C.N.Y., 1926).)
From the foregoing cases it should be apparent that the "intent to defraud element" in an offense has been treated similarly whether such an offense was committed in violation of a Canadian statute or one in the United States and there is no basis shown in the record for considering that the phrase "intent to defraud" under the Canadian statutes would not be similarly characterized in our law.
Neither this Service nor the Board of Immigration Appeals nor the courts may consider the circumstances under which the crime was in fact committed, when the offense was committed in the United States, if by its definition or because of the essential elements thereof the offense involves moral turpitude. U.S. ex rel. Robinson v. Day, 51 F. (2d) 1022 (C.C.A. 2, 1931). In regard to these convictions in Canada, there is nothing in the record to indicate that the element of "intent to defraud" is distinguishable from the same element in the United States. There is no necessity to go beyond the statute and the conviction record in this case. It is, therefore, concluded that these offenses involve moral turpitude.
The occasion for going beyond the record In the Matter of T---- (56156/247, approved by the Attorney General February 24, 1944) does not arise in this case.
It is urged by the alien's attorney that the Matter of O'N---- (55813/162, approved by the Attorney General on June 13, 1945) has application in this case in regard to the question of determining whether these offenses involve moral turpitude inasmuch as the appellant was under 18 years of age when these offenses were committed. It need only be noted that in the O'N---- case the offense in reference was committed when O'N---- was 15½ years old. In this case the appellant was over 16 years of age when these offenses were committed and he may not be deemed to be a person who could have been adjudged a juvenile delinquent under the Canadian or Ontario statutes ( Matter of B----, A-6527792, February 21, 1947). This appellant was almost 18 years of age when these offenses were committed. It is, therefore, believed that the decision In the Matter of O'N---- ( supra) does not apply. There is nothing to show in this case that in the Province of Ontario this alien would have been treated and tried as a juvenile offender in a state of delinquency, but was not so tried because a juvenile court or detention home for children had not been provided by the Ontario Legislature, or there existed some other reason why this alien could not have been tried as a juvenile offender.
It is further urged by the attorney that the offense was committed against the property of the alien's parent and that no actual loss had occurred to anyone outside the family. It need only be said in this regard that a crime is an offense against the State and not merely a wrong done to an individual. "Hence, no private party can, by condoning or forgiving a personal injury done to himself in the commission of crime, thereby condone or pardon the offense against the King — that is to say, against the State — which is an essential element of all crime." R. v. Strong (1915), 43 N.B.R. 190, 24 C.C.C. 430, 26 D.L.R. 122, 13 Can. Abr. 16 (C.A.), per White, J.).
The appellant pleaded guilty to these offenses and, therefore, he is deemed to have admitted the commission of these offenses ( Blumen v. Haff, 78 F. (2d) 833 (C.C.A. 9, 1935), cert. denied 296 U.S. 644). He is, therefore, deemed to be subject to exclusion on these criminal grounds, as stated above.
In addition, the record shows that on February 21, 1938, the appellant was convicted at Hamilton, Ontario, Canada, on three counts, although he pleaded guilty to the third count only. These counts will be considered separately.
Count 1 charged him with having on or about December 22, 1936, unlawfully conspired with another or others, to obtain by deceit, falsehood, or other fraudulent means, through the medium of a contract, from another, shares of that person's stock, with intent to defraud, in violation of section 444 of the Criminal Code of Canada. It has been held that a conspiracy to commit a crime does not involve moral turpitude unless the crime committed or attempted or intended to be committed involves that element. ( Matter of La F----, 56156/271, April 29, 1944). Accordingly, section 444 of the Criminal Code of Canada will be examined.
Section 444 of the Criminal Code of Canada provides:
CONSPIRACY TO DEFRAUD.
444. Everyone is guilty of an indictable offense and liable to 7 years' imprisonment who conspires with any other person, by deceit or falsehood or other fraudulent means, to defraud the public or any person, ascertained or unascertained, or to affect the public market price of stocks, shares, merchandise, or anything else publicly sold, whether such deceit or falsehood or other fraudulent means would or would not amount to a false pretense as hereinbefore defined.
Where there is no evidence either of actual fraud or intent to defraud, a conviction under section 444, supra, cannot be supported ( R. v. Phillips (1928) 35 O.W.N. 110, 13 Can. Abr. 567 (C.A.). In view of what has been said regarding an intent to defraud it is concluded that this offense under count 1 involves moral turpitude. It has been so held by the Board of Immigration Appeals in the Matter of F---- (A-6019766, October 4, 1946) and In the Matter of C----, (56096/221, September 30, 1941). Accordingly, the exclusion ground relating to the conviction of this offense in count 1 is deemed sustained.
Count 2 charged the appellant with having on or about December 22, 1936, contrary to section 573 of the Criminal Code of Canada, unlawfully conspired with another or others to commit an indictable offense, to wit: to obtain from another, shares of that person's stock, by false pretenses with intent to defraud, contrary to the provisions of section 405 of the Criminal Code of Canada.
The provisions of section 405 of the Criminal Code of Canada have been introduced in this memorandum heretofore. The provisions of section 573 of the Criminal Code of Canada are now quoted:
CONSPIRING TO COMMIT INDICTABLE OFFENSE.
573. Everyone is guilty of an indictable offense and liable to 7 years' imprisonment who, in any case not hereinbefore provided for, conspires with any person to commit any indictable offense.
As stated above, in a conspiracy offense it is necessary to examine the offense to be committed to ascertain whether it involves moral turpitude before a determination can be made as to whether such an offense as set forth in count 2 involves moral turpitude ( Matter of La F----, supra; Matter of B----, 55811/86, April 29, 1946). In the latter case cited it was noted that the statute violated was similar to one in the United States, a violation of which had not been held to involve moral turpitude. In this case, however, the indictable offense is specifically set forth as the violation of section 405 of the Criminal Code of Canada, to wit: by false pretense with intent to defraud and so forth. As previously discussed a violation of section 405 has been held to be an offense involving moral turpitude. Accordingly, the offense for which the appellant was convicted under count 2 is deemed to involve moral turpitude and the appellant is deemed to be subject to exclusion by virtue of conviction of such offense as stated above.
Count 3 charges the appellant with having in December 1936, unlawfully, by false pretenses and with intent to defraud, obtained a number of valuable securities, the shares of stock belonging to another person, of the value of $43,750, contrary to the provisions of section 405 of the Criminal Code of Canada. In view of the discussion had regarding section 405, supra, it is concluded that the offense for which the appellant was convicted on count 3, upon his plea of guilty, involves moral turpitude. His plea of guilty is deemed to constitute an admission of the commission of this offense ( Blumen v. Haff, 78 F. (2d) 833 (C.C.A. 9, 1935), cert. denied 296 U.S. 644).
Since the offenses involved in his conviction in 1938 deal with shares of stocks, some question has arisen as to whether or not these violations are similar to those deemed to be violations of "Blue Sky Laws." Since Blue Sky Laws generally deal with "fraudulent" practices regarding stocks and bonds, it should be noted that we are not dealing here with a flexible term like "fraudulent" practices. If we were, consideration might be given to the question of the interchangeability of the term fraudulently with the terms wilfully and unlawfully, under Canadian statutes as well as under American statutes. Since it might be considered that under Canadian and American criminal jurisprudence the word "fraudulently" is not deemed synonymous with an intent to defraud or deceive which have been held to involve moral turpitude (39 Op. Atty. Gen. 215, 222 (1938)), it would appear that a different question is raised under Blue Sky Laws, so-called, where the term "fraudulent" practices is used. We are dealing here with offenses, an essential element of which is "intent to defraud" and "fraud." Accordingly, this aspect as to comparison will not be further labored especially since no question has been raised that the standards used in Canada, regarding the element of an intent to defraud, differ from the American standards on this matter. Accordingly, it is concluded that the appellant is subject to exclusion on all the above-stated criminal grounds.
The Solicitor expressed the belief In the Matter of S---- (55801/364, January 4, 1934), that he did not believe it advisable to hold that the violation of the Blue Sky statute in Massachusetts, necessarily involves moral turpitude.
Other Factors: The appellant has been the subject of proceedings before this Service heretofore. A warrant of arrest was issued against him in 1937 and in 1939. He departed voluntarily in both instances. In the second warrant proceedings the Board of Review granted him voluntary departure though it found him deportable on the 1938 criminal grounds. After 1940, his temporary admissions into the United States were authorized under the ninth proviso, notwithstanding his having been found inadmissible on such criminal grounds by the Board of Review on June 11, 1940.
The appellant was divorced in Canada by his first wife in 1939. In November 1939, he married a native-born citizen, who resides here. It was for this reason he was granted ninth proviso relief to come here temporarily. He now wishes to come here for permanent residence and that is why close scrutiny has been accorded to his criminal record.
The appellant was sentenced to a reformatory in 1938 for 12 to 15 months. He states he served about 10 months. His attorney states that an accord and satisfaction or some agreement was entered into between the 1938 complainant and the defendants so that the matter has been resolved to the satisfaction of the interested parties.
The appellant has two children of his first marriage, ages 12 and 22 respectively, who are natives and citizens of Canada. His present wife is self-supporting and has an independent income of her own. There are no children of the second marriage.
The appellant claims he was in the United States for a few months in 1937 and for a few months in the period between 1939 and 1940. Since 1940 he has only been here on temporary visits under the ninth proviso authorization. It is believed he lacks the domiciliary requirement for seventh proviso relief since he does not have an unrelinquished domicile of 7 years prior to his present application. His eligibility for seventh proviso relief as to character and rehabilitation need not be discussed.
It is, therefore, concluded that the conclusions reached by this Service in its orders of February 10, 1947, and April 28, 1947, need not be altered in any respect. This appellant had applied for admission into the United States on June 26, 1946, and after the various hearings held before a Board of Special Inquiry he is again found to be subject to exclusion on the above-stated criminal grounds as well as documentary grounds.
Recommendation: It is recommended that the excluded decision of the Board of Special Inquiry of October 3, 1947, be affirmed.
So ordered.
Discussion: This is an appeal from the order of the Acting Commissioner dated October 24, 1947, affirming the decision of the Board of Special Inquiry which excluded appellant on the grounds set forth above.
In his appearance before us on May 29, 1947, counsel took issue with the assumption on the part of the Service that the alien's three convictions, two on February 16, 1916, and one on February 17, 1916, were based on a violation of section 405 of the Canadian Criminal Code. Accordingly, on June 19, 1947, we ordered the hearing reopened to permit the Service to establish, as a fact, the particular statute or statutes upon which the 1916 convictions were predicated.
The record covering the reopened hearing is now before us on appeal from the Acting Commissioner's order of October 24, 1947. Counsel again appeared in oral argument December 23, 1947. The record now affirmatively establishes that appellant's convictions in Canada during 1916 were based on violations of section 405 of the Canadian Criminal Code. Counsel, however, asserts, in effect, that since restitution of the moneys involved was made, and since appellant's "motives were not the motives of intent to defraud," that such crimes do not connote moral turpitude as required by the statute.
As pointed out by the Service, the complaints charge the appellant with fraudulently and knowingly, by false pretenses, obtaining money and goods with intent to defraud in violation of section 405 of the Canadian Criminal Code, which reads:
Everyone is guilty of an indictable offense and liable to 3 years' imprisonment who, with intent to defraud, by any false pretense, either directly or through the medium of any contract obtained by such false pretense, obtains anything capable of being stolen, or procures anything capable of being stolen to be delivered to any other person than himself.
Counsel intimated the possible application of the ruling In the Matter of T----, 56156/249, February 24, 1944. That case has application to section 388 of the Canadian Criminal Code denouncing theft. There it was pointed out that since that section made the offense complete whether the taking was temporary or permanent, under the standards prevailing in the United States it was necessary to establish that the taking was of a permanent nature. That problem is in no way concerned with section 405, here under consideration, and, therefore, the inapplicability of the T---- ruling is clear. In the case before us, one of the elements of the crime, made so by statute, is the intent to defraud. It has always been held that crimes involving an intent to defraud involve moral turpitude ( Ponzi v. Ward, 7 F. Supp. 736 (1934); Mercer v. Lence, 96 F. (2d) 122 (1938)). We concur with the Commissioner that this offense necessarily involves moral turpitude.
No issue is presented with reference to the documentary charges.
We must, therefore, upon careful consideration of the evidence, affirm the order of the Acting Commissioner and dismiss the appeal therefrom.
Order: The order of the Acting Commissioner dated October 24, 1947, is affirmed, and the appeal therefrom dismissed.