1205-17558.
Decided by Board November 30, 1954.
Crime involving moral turpitude — Evidence — Where conviction, not based upon specific statute, was result of inherent powers of court, its opinion will be relied upon in determining nature of crime-Criminal contempt of court, Canada.
(1) Where conviction in Canada of gross contempt of court is not based upon a violation of any specific statute but was the result of the inherent powers of the court and no complaint or indictment was filed, the opinion of the court will be relied upon in determining whether the respondent was convicted of a crime involving moral turpitude.
(2) Criminal contempt of court in Canada is an offense which may or may not involve moral turpitude. In the instant case, the respondent and others did not obey an injunction requiring them to desist from congregating around a vessel so that others may not load it. The effect of this conduct was to publicly depreciate the authority of the court tending to bring the administration of justice into scorn. Under the facts in this case, the offense does not involve moral turpitude.
EXCLUDABLE:
Section 212 (a) (9), Act of 1952 — Convicted of crime.
BEFORE THE BOARD
Discussion: This case is before the Board on appeal from the decision of a special inquiry officer in which he orders the applicant's exclusion.
The applicant is a 33-year-old married male, an alien, native and citizen of Canada, who arrived at the port of Blaine, Washington, on August 23, 1954, and applied for determination of admissibility for border-crossing purposes as a visitor for business and pleasure for periods of up to two weeks at any one time. The applicant testified that he is, and has been since March 1951, an elected official of Local 1-80, International Woodworkers of America, Duncan, British Colombia, presently holding the office of president. He desires a determination of admissibility in order that he may attend international conventions of the union as well as other business matters for that organization and so that he could enter for pleasure.
The applicant was convicted on September 16, 1952, in the Supreme Court of British Columbia of gross contempt of court and was sentenced to three months imprisonment and fined $3,000. The Court of Appeal for British Colombia affirmed the judgment on October 7, 1952, and the Supreme Court of Canada affirmed the judgment on April 28, 1953. In affirming this judgment, the Supreme Court of Canada found that the applicant was found guilty of criminal contempt of court.
The decision of the Supreme Court of Canada as well as other parts of the record and research into Canadian law reflect that the conviction was not based upon a violation of any specific statute but that it was the result of the inherent powers of the court. No complaint or indictment, as we know them, was filed. The applicant was brought into court on a writ of attachment for contempt in failing to obey the order of the court. Under ordinary circumstances, in determining whether a crime involves moral turpitude we look to the statute which has been violated and, where necessary, to certain portions of the record of conviction, which includes the complaint or indictment. Absent a statute and complaint or indictment in this case, it is appropriate to examine the opinion of the Supreme Court of Canada in order to determine whether the applicant was convicted of a crime involving moral turpitude.
The Supreme Court stated the facts to be as follows: Plaintiff's ship arrived in Nanaimo on July 7, 1951, to load lumber piled on the dock. The International Woodworkers of America were on strike but they were not the ones to load the ship, such loading to have been done by longshoremen. The Woodworkers established the picket lines which the longshoremen refused to cross. The plaintiff applied ex parte and obtained an injunction restraining the applicant and others, from watching or besetting the ship, from preventing or interfering with its loading and from preventing access to and from the ship by any persons seeking to embark or depart from it. The order was served on the applicant on July 15, 1951, and a copy was posted on the bridgehead in the presence of the applicant and others. On the following day, the sheriff found approximately 180 men blocking the ship and displaying posters setting forth the fact that the Woodworkers were on strike. Later that day, several longshoremen arrived and when the applicant was informed that they were longshoremen he advised them, pursuant to a question asked of him if they were to load, that they were not. On July 18 and 19 the sheriff found pickets still patrolling the bridgehead. July 20th was Sunday and no pickets were present but on July 21st pickets were again at the bridgehead just as they were on July 22d. On the latter date, the applicant and others served notice of a motion for an order setting aside the injunction and on July 23rd the plaintiff moved to commit those concerned for disobediance to the said order. The motions were returnable on July 24 but on that day the parties to the action settled their differences, it being agreed that the plaintiff would discontinue his action and the motion to commit, and that the motions would be spoken to on the 29th. On July 29th, the Chief Justice of British Colombia was informed by counsel of the position taken but the Chief Justice indicated that on the record it appeared that there might have been a contempt of which the court should take notice. Thereafter, the applicant was convicted as aforesaid.
The opinion of the Supreme Court of Canada contains a lengthy review of the subject of criminal and civil contempt. It held that the Court of Chancery has for centuries enforced its orders by contempt proceedings, "but it is well settled that such orders, when made in aid of execution of process for the benefit of a party, are to be regarded as purely civil in nature. It is equally well settled that conduct which renders appropriate contempt proceedings in aid of execution may have a criminal aspect as well." Thus, clandestine removal from the proper custody of a ward of the court was held to be criminal contempt. Other cases were cited in which distinctions between civil and criminal contempt were discussed and the general tenor of these cases was that the conduct complained of may transcend civil matters and impose upon the order of the court in a public fashion, thus tending to injure the public or the administration of justice in some manner.
The Supreme Court of Canada stated that in its opinion the statement in Oswald, 3rd edition, p. 36, correctly distinguishes between civil and criminal contempts (pp. 10 and 11 of the court's opinion). Oswald stated:
And, generally, the distinction between contempts criminal and not criminal seems to be that contempts which tend to bring the administration of justice into scorn, or which tend to interfere with the due course of justice, are criminal in their nature; but that contempt in disregarding orders or judgements of a Civil Court, or in not doing something ordered to be done in a cause, is not criminal in its nature. In other words, where contempt involves a public injury or offence, it is criminal in its nature, and the proper remedy is committal — but where the contempt involves a private injury only it is not criminal in its nature * * *.
In discussing the case the Supreme Court of Canada stated that so far as the immediate parties to the action were concerned all matters between them had been adjusted, the plaintiff was no longer interested in enforcement of the injunction and had agreed to drop the proceedings for enforcement by way of committal. However, the Supreme Court of Canada then went on to say:
It is idle to suggest that on the evidence the presence of these large numbers of men blocking the entrance to the bridge was intended merely for the purpose of communicating information. That had been very efficiently done for a considerable time by the six pickets with their signs or cards, and the notices at the bridgehead. The congregation of the large numbers of men at the times that the longshoremen were to arrive had no other object or defect than to present force.
The context in which these incidents occurred, the large numbers of men involved and the public nature of the defiance of the order of the court transfer the conduct here in question from the realm of a mere civil contempt, such as an ordinary breach of injunction with respect to private rights in a patent or trade-mark, for example, into the realm of a public depreciation of the authority of the court tending to bring the administration of justice into scorn. It is to be observed that the nuisance created by the incidents referred to brought the appellants within the scope of section 501 of the Criminal Code; Reners v. The King, 1926, S.C.R., 499. Section 165 as well as section 573 were also infringed. There is no doubt that the appellants and those associated with them were acting in concert. Their conduct was thus entirely criminal in character in so far as these specific offences are concerned. Over and above these offences, however, the character of the conduct involved a public injury amounting to criminal contempt.
Section 501 of the Criminal Code referred to in the above quotation relates to intimidation by violence, by threats, by following, by hiding property, by following in a disorderly manner, or by watching or besetting a house or place of business, etc. Section 165 relates to disobeying a lawful order of court, with certain exceptions. Section 573 refers to conspiracy to commit an indictable offense. It will be noted, however, that the applicant was not convicted under either of these 3 sections.
We believe that we are bound by the opinion of the Supreme Court of Canada in the instant case and in determining whether the offense involved moral turpitude we will look to it for a determination of the facts and the Canadian law bearing in mind, however, that the standards applicable to the conduct in question are the standards applied in the United States in order to determine whether moral turpitude inheres.
An evaluation of the foregoing leads to the conclusion that criminal contempt in Canada is an offense which may or may not involve moral turpitude. In examining the instant case we find that the applicant and others did not obey an injunction requiring them, in effect, from desisting from congregating around the vessel so that others may not load it. That is the conduct which resulted in the contempt action. The effect of that conduct was to publicly depreciate the authority of the court tending to bring the administration of justice into scorn.
Moral turpitude, however, as has often been said, is a vague term and has been defined as anything done contrary to justice, honesty, principle, or good morals; an act of baseness, violence or depravity in the private and social duties which a man shows to his fellowman or to society in general, contrary to accepted and customary rules of right and duty between man and man. It implies something immoral in itself. Similarly, it has often been repeated that it is in the intent that moral turpitude inheres.
While we do not condone the action of the applicant in violating the injunction of the Supreme Court of British Columbia, we do not feel that, under the facts in this case, the offense involved moral turpitude. It has not been made to appear that there was a vile or base intent or that the conduct itself was vile or base and so inherently immoral as to contain the ingredient of moral turpitude. It appears from argument of counsel, and this is supported inferentially by the opinion of the Supreme Court of Canada, that the applicant believed the original injunction was being dissolved. Of course, he could not take it upon himself to disobey it, but in disobeying it, it cannot be found, in this case that the elements of moral turpitude previously discussed were present. The applicant's conduct did not show the hardness of heart and callousness which so frequently are appendages to a crime involving moral turpitude. As previously stated, the record does not make it clear that a base or vile intent was present.
The appeal should be sustained.
Order: It is ordered that the appeal be and the same is hereby sustained.