55811/86.
Decided by Central Office April 29, 1946.
Crime involving moral turpitude — Conspiracy to smuggle dutiable goods — Violation of section 573 of the Criminal Code of Canada and of Section 203 (3) of the Customs Act of Canada — Use of standard prevailing in United States to judge whether moral turpitude involved.
1. The offense of conspiracy (violation of sec. 573 of the Canadian Criminal Code) in Canada, like that offense in the United States, involves moral turpitude if the offense committed or intended or attempted under such conspiracy involves that element, and in ascertaining whether such latter offense involves that element, the standard prevailing in the United States is to be used.
2. The offense of smuggling goods subject to customs duty in violation of section 203 (3) of the Customs Act of Canada is deemed comparable to a violation of substantially similar provisions of section 593 (b) of the Tariff Act of 1930 ( 19 U.S.C. 1593 (b)) (which has been held not to involve moral turpitude), and since the provision of law violated does not denounce the act as a perpetration of fraud upon either the property or revenue of the Crown, nor is the act shown as accompanied by a corrupt or vicious motive, it is held such offense does not involve moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Convicted of crime; conspiracy to smuggle into Canada goods subject to Customs duties in violation of section 203 (3) of the Customs Act of Canada.
BEFORE THE CENTRAL OFFICE.
Discussion: The appellant, a 55-year-old male, native of the Union of Soviet Socialist Republics, citizen of Canada, applied for admission at the port of Montreal, P.Q., Canada, on January 18, 1946. He was found inadmissible by a Board of Special Inquiry on the ground stated above. On appeal, this Service directed, on February 4, 1946, that the proceedings be reopened for the purpose of receiving additional evidence. At the reopened hearing held on February 20, 1946, the appellant was again found inadmissible on the ground stated above. He has appealed from that decision.
The appellant is a dress manufacturer who seeks to enter the United States for a combined business and pleasure trip. He expects to attend a dress designer's meeting in New York City for the purpose of inspecting an offering of Spring samples. He is accompanied by his wife and daughter and is in possession of a valid Canadian passport and American Foreign Service Form No. 257, endorsed to show issuance of Nonimmigrant Visa No. 4045, under the provisions of section 3 (2) of the act of 1924 by the American Consulate General, Montreal, Canada, on January 16, 1946. The Board of Special Inquiry does not challenge the bona fides of the appellant's nonimmigrant status.
There was introduced in evidence as Exhibit No. 1 a certified copy of an indictment returned against the appellant and three others during the February term 1931 King's Bench, City of Montreal, P.Q., Canada, charging the defendants with violation of Section 573 of the Canadian Criminal Code, in that between the month of August 1929 and the month of December 1930 they "did conspire with one other and with M---- F---- and L---- F---- and divers other persons to commit the indictable offence of smuggling into Canada, goods, subject to Customs Duty, of the value of over two hundred dollars, ($100,000.00)" contrary to section 203 (3) of the Customs Act of Canada. The appellant was convicted, and on June 6, 1931, was sentenced to 2 years in the penitentiary.
The sole question presented is whether the appellant's conviction involves moral turpitude.
The section of the Canadian Criminal Code under which the appellant was convicted, reads as follows:
Section 573 — Everyone is guilty of an indictable offence and liable to 7 years imprisonment who in any case not hereinbefore provided for, conspires with any person to commit any indictable offence.
The pertinent provisions of section 203 (3) of the Customs Act of Canada, provides as follows:
Everyone who smuggles or clandestinely introduces into Canada any goods subject to duty of the value for duty of two hundred dollars or over is guilty of an indictable offence and liable on conviction, in addition to any other penalty to which he is subject for any such offence, to a penalty not exceeding one thousand dollars and not less than two hundred dollars, or to imprisonment for a term not exceeding four years and not less than one year, or to both fine and imprisonment, and such goods if found shall be seized and forfeited without power of remission, or if not found but the value thereof has been ascertained, the person so offending shall forfeit without power of remission the value thereof as ascertained.
The standard by which the crime is to be judged, regardless of where committed, is that prevailing in the United States. Mercer v. Lence, 96 F. (2d) 122 (C.C.A. Utah, 1938); 37 Op. Atty. Gen. 293 (1933). In this country certain statutory offenses have been held to involve moral turpitude where the acts denounced consist of perpetration of fraud upon property or upon the revenue of the Government. Popoff v. Reimer, 79 F. (2d) 513 (C.C.A. 2d, 1935). Ponzi v. Ward, 7 F. Supp. 736, U.S. ex rel. Berlandi v. Reimer, 113 F. (2d) 429 (C.C.A. 2d, 1940). In the instant case, however, the complaint appears to have been laid under a provision of the Customs Law which does not contain an averment denouncing the act as a perpetration of fraud upon either property or revenue of the Crown. Nor does the conviction under consideration indicate that the offense committed was accompanied by a vicious motive or corrupt mind under the test usually applied in determining whether the crime contains the element of moral obloquy. Mongiovi v. Karnuth, 30 F. (2d) 825 (1929). The statute violated herein is substantially similar to the provisions of section 593 (b) of the Tariff Act of 1930 ( 19 U.S.C. 1593 (b)) which has been held not to involve moral turpitude, since it does not embody the ingredient of intending to defraud the revenue, but is merely a prohibition against importation of merchandise contrary to law. Matter of F----, CF-72242 (April 5, 1938). It is therefore, concluded that by American standards a violation of section 203 (3) of the Customs Law of Canada, does not involve moral turpitude. The Board of Immigration Appeals has held that a conspiracy to commit a crime does not involve moral turpitude unless the crime committed or attempted involves that element. Matter of L----, 56156/271 (April 29, 1944). Since the sole ground of inadmissibility found by the Board of Special Inquiry is deemed inapplicable, the appellant's admission will be authorized.
Order: It is ordered that the appeal be sustained.