56175/99
Decided by Board June 9, 1945.
Crime involving moral turpitude — Attempt to commit acts of gross indecency — Violation of section 206 of the Canadian Criminal Code.
Where, for want of a definition of the term "gross indecency," it may not be concluded that every offense under section 206 of the Canadian Criminal Code involves moral turpitude, and the record affords no aid in ascertaining the alien's conduct in the particular instance, it may not be concluded that the offense of which the appellant was convicted involves moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Convicted of crime — attempt to commit act of gross indecency.
Discussion: The appellant, a 36-year-old native of Lithuania and citizen of Canada was accorded a hearing at Montreal, P Q, Canada, on January 18, 1945, relative to his admissibility to the United States. A Board of Special Inquiry excluded him on the ground above stated and his appeal is now before us for consideration.
The appellant, an appellant for permanent residence and in possession of a valid immigration visa and Canadian passport, had been found inadmissible under section 3 of the act of February 5, 1917, as a person convicted of a crime involving moral turpitude. The record clearly establishes that on November 4, 1937, the alien was convicted before a judge of the Sessions of the Peace in Montreal, on his plea of guilty, of having attempted to commit acts of gross indecency in violation of section 206 of the Canadian Criminal Code. As a result of his conviction the alien was required to post a $100 bond to keep the peace for a period of one year, and in default thereof he was to be imprisoned in the common jail for 2 months.
The alien now claims that notwithstanding his guilty plea he was actually innocent of any wrongdoing. His version of the occurrence on the evening of his arrest on June 30, 1936, which will not be set forth here, appears to have some semblance of plausibility. His claim that he was persuaded by his attorney to plead guilty because of the fact that he had used an assumed name at the time of his arrest, and in order to avoid any unnecessary publicity was corroborated by the attorney. The fact that the prosecuting officials did not bring the case to trial until almost one and one-half years after the complaint or accusation was issued also lends some credence to his allegation that the case against him was not very strong. But, nevertheless, the fact remains that he was duly convicted by a proper court. We are without power in these proceedings to retry the criminal case, and under the law are bound by the record of conviction.
Turning to the question of whether the offense of which the appellant was convicted involves moral turpitude, section 206 of the Canadian Criminal Code read at the time of the commission of the crime and now reads:
Every male person is guilty of an indictable offense and liable to 5 years' imprisonment and to be whipped who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any acts of gross indecency with another male person.
A reading of this provision does not indicate the type of conduct proscribed by it. However, it seems clear from an examination of the other provisions of the Canadian Criminal Code that section 206 does not deal with buggery or sodomy. It apparently does not punish the commission of indecent acts for such offenses are proscribed by section 205 of the Canadian Criminal Code. Further, indecent assaults by one male upon another male are punished under section 293 of this Code. The judicial decisions under section 206 do indicate that one type of conduct prohibited by this provision is what is commonly known as "felatio." But that does not necessarily mean that is the only type. For want of a definition of the term "gross indecency" we are unable to conclude that every offense under the statute involves moral turpitude.
Section 202 of the Canadian Criminal Code punishes the commission of buggery, which in Canada also includes what is commonly known as sodomy. A person committing the offense denounced by section 202 cannot be convicted under section 206 ( Rex v. Landow, 38 Can. Crim. Cas. 54 (1922)).
See Rex v. Horn, 40 Can. Crim. Cas. 117 (1923); Rex. v. Boynton, 63 Can. Crim. Cas. 75 (1934).
The record of conviction does not aid us in ascertaining the alien's conduct in the particular instance. Considering, therefore, the general phraseology of the statute and the failure of the record of conviction or the testimony of the alien to disclose the exact act of gross indecency attempted to be committed, we are unable to find that the offense of which the appellant was convicted involves moral turpitude.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant is an alien, a native of Lithuania and citizen of Canada;
(2) That the appellant seeks admission for permanent residence;
(3) That the appellant was convicted on November 4, 1937, of attempting to commit acts of gross indecency in violation of section 206 of the Canadian Criminal Code.Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 3 of the act of February 5, 1917, the appellant is not inadmissible as one who has been convicted of a crime involving moral turpitude, to wit: Attempting to commit acts of gross indecency in violation of section 206 of the Canadian Criminal Code.
Order: It is ordered that the appeal be sustained and the alien admitted for permanent residence.