A-6927822 (56018/759)
Decided by Central Office March 22, 1949 Decided by Board June 14, 1949
Crime involving moral turpitude — Carnal knowledge (Canada) — Violation of section 301, subsection 2 of the Criminal Code of Canada (1945).
The offense of carnal knowledge of a girl, under 16 and above 14 years of age of previous chaste character, not his wife, in violation of section 301 (2) of the Criminal Code of Canada involves moral turpitude.
CHARGES:
Warrant: Act of 1929 — Arrested and deported — No permission to reapply.
Act of 1924 — Remained longer — visitor.
Lodged: Act of 1917 — Convicted of crime prior to entry — carnal knowledge.
BEFORE THE CENTRAL OFFICE
Upon consideration of the entire record, the findings of fact and conclusions of law proposed by the presiding inspector and served upon the respondent on November 2, 1948, are hereby adopted. Written exceptions were submitted by the respondent.
Discussion: The respondent is a 39-year-old male alien, native and citizen of Canada, who was last deported from the United States on June 28, 1940, and last entered at the port of Detroit, Mich., on June 17, 1948, for a visit of a few hours. The alien in his exceptions claims that he was advised by the inspector of his privilege to retain counsel, but that at the same time the inspector told him that it would do no good and he advised the alien against retaining counsel. The presiding inspector in submitting the alien's exceptions states that the alien's claim is false and that he at no time advised the alien in the matter of whether he should or should not retain the services of an attorney. The record reflects that the alien was given the usual notice that at the hearing he had the right to be represented by counsel and the alien stated that he did not desire to be represented.
During the hearing the respondent made considerable effort to show that he was born in Toledo, Ohio, notwithstanding that he had previously made several statements in which he stated that he was a Canadian citizen and was born in Canada. It is significant to note that the respondent's mother was requested on several occasions to give testimony concerning the place of the respondent's birth and she avoided giving any testimony by supplying various excuses. It is believed that the evidence definitely sustains the finding that the respondent was born in Canada and is a Canadian citizen.
During the hearing the additional charge was lodged against the respondent that he has been convicted of a crime involving moral turpitude prior to entry into the United States, to wit: carnal knowledge, based upon his conviction in Sarnia, Ontario, on September 13, 1945. Exhibit 6 is a certified copy of the court record of indictment and verdict and sentence covering that crime. The indictment charges that on or about the 19th day of May 1944, the defendant did unlawfully carnally know J---- D---- R----, a girl of previous chaste character under the age of 16 years and above the age of 14 years not his wife, and did thereby commit an indictable offense, contrary to section 301, subsection 2 of the criminal code of Canada. The jury returned the verdict of guilty and he was sentenced to 3 years in the penitentiary. The respondent claims that he was not guilty of the offense and that he intends to employ a lawyer to have the case reopened so that he may be cleared of the charge. The criminal reports supplied by the Federal Bureau of Investigation shows that in the first instance an appeal was allowed, the conviction quashed, and a new trial was ordered, and thereafter another appeal was allowed and such appeal was dismissed and the court ordered the sentence to run from the date of the conviction.
Section 301 (2) of the Canadian Criminal Code provides:
Everyone is guilty of an indictable offense and liable to imprisonment for 5 years who carnally knows any girl of previous chaste character under the age of 16 and above the age of 14 years, not being his wife, and whether he believes her to be above the age of 16 years or not; but no person accused of any offense under this subsection shall be convicted upon the evidence of one witness, unless such witness is corroborated in some material particular by evidence implicating the accused.
Subsection 3 of section 301 of the Canadian Criminal Code provides:
On the trial of any offense against subsection 2 of this section, the trial judge may instruct the jury that if in their view the evidence does not show that the accused is wholly or chiefly to blame for the commission of said offense, they may find a verdict of acquittal.
With reference to the above-quoted sections of the Canadian statute it is stated that every act of carnal knowledge involves an indecent assault, R. v. Cameron (1901) 4 C.C.C. 385. It is further stated that the mere fact that carnal knowledge of a young girl is a special statutory offense does not exclude the possibility of an indictment for rape, where the intercourse is shown to have been without the girl's consent, R v. Dicken, 14 Cox C.C. 8.
This respondent was found guilty of having had carnal knowledge of a girl between the ages of 16 and 14 years. The offense as defined by the statute would be looked upon in the United States as statutory rape. It is clearly one involving moral turpitude and the charge relating thereto is sustained.
The respondent is deportable on a charge within the provisions of section 19 (d) of the act of 1917, as amended, and is not entitled to the discretionary relief of voluntary departure.
Recommendation: It is recommended that voluntary departure be denied.
It is further recommended, That the alien be deported to Canada at Government expense on the charges contained in the warrant of arrest and on the additional charge:
The act of February 5, 1917, in that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: carnal knowledge.So ordered.
Upon consideration of the entire record, it is ordered that the appeal from the decision of the Commissioner be and the same is hereby dismissed.