A-7172996
Decided by Central Office May 18, 1949 Decided by Board June 29, 1949
Crime involving moral turpitude — Attempted Arson — Violation of section 512 of the Criminal Code of Canada (1947).
The offense of attempted arson in violation of section 512 of the Criminal Code of Canada (1947) involves an act committed purposely with an evil intention and thus constitutes an offense which involves moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Convicted of crime involving moral turpitude — Attempted arson in violation of section 512 Canadian Criminal Code.
Act of 1917 — Admits crime involving moral turpitude — Attempted arson in violation of section 512 Canadian Criminal Code.
BEFORE THE CENTRAL OFFICE
Upon consideration of the entire record, the findings of fact and conclusions of law of the Board of Special Inquiry read to the alien on March 25, 1949, are hereby adopted.
Discussion: The appellant, 20 years old, male, native, and citizen of Canada, seeks admission into the United States as a temporary visitor for the purpose of visiting friends and for pleasure. A Board of Special Inquiry found him to be inadmissible on the ground stated above and the applicant has appealed from the excluding decision.
On August 6, 1947, the appellant was convicted on his plea of guilty to an information charging that on July 26, 1947, he willfully without legal justification or excuse and without color or right unlawfully set fire to some curtain material and a bed mattress, thereby committing the indictable offence of attempted arson contrary to section 512 of the Criminal Code of Canada, and received a suspended sentence. Attempted arson, as defined in Tremeear's Annotated Criminal Code of Canada, 1944, in part VIII, section 512, provides as follows:
512. Attempt arson. — Everyone is guilty of an indictable offence and liable to five years' imprisonment who wilfully attempts to set fire to anything mentioned in the last preceding section, or who wilfully sets fire to any substance so situated that he knows that anything mentioned in the last preceding section is likely to catch fire therefrom.
In the last preceding section, or section 511 describing arson, it names "building or structure, stack of vegetable produce or of mineral or vegetable fuel, or any mine or well of oil or other combustible substance, or to any ship or vessel, or any materials in the shipyard or stores of munitions of war."
The question to be determined is whether a conviction of arson or attempted arson under Canadian statutes involves moral turpitude. The word "wilfully" appearing in section 512, is defined in section 509 of the Canadian Criminal Code as follows:
SECTION 509. Everyone who causes any event by an act which he knew would probably cause it, being reckless whether such event happens or not, is deemed for the purposes of this part to have caused it wilfully.
The "part" referred to in section 509 refers to part VIII entitled "Wilful and Forbidden Acts in Respect of Certain Property" which includes sections 509 to 545A, inclusive. In dealing with a charge under section 528 of part VIII, the word "wilfully" was defined as follows: "Wilfully means not merely to commit an act voluntarily, but to commit it purposely with an evil intention, or, in other words, it means to do so deliberately, intentionally, and corruptly, and without any justifiable excuse" ( R. v. Duggan, 4 W.L.R. 481 (1906)). If the act which causes the burning is accidental and not intentional, no conviction for arson can be had ( Rex v. Faulkner, 13 Cox, C.C. 550). It is noted that a reckless or negligent causing of fire is punishable not as arson under section 511 or 512 of the Canadian Criminal Code, but is punishable under a separate section, namely, section 515 of the Canadian Criminal Code.
In view of the language of the pertinent statutes and the interpretation thereof by the courts, it necessarily follows that arson or attempt to commit arson involves an act committed purposely with an evil intention and constitutes an offence involving moral turpitude. It may be observed in passing that in the United States it has been held that the word "wilful" in a penal statute means with evil intent or without reasonable ground to believe the act lawful ( United States v. Praeger, 149 F. 474; Roberts v. United States, 126 F. 904). It is concluded that the ground of inadmissibility found by the Board of Special Inquiry is sustained by the evidence.
The appellant desires to come to the United States temporarily merely for social or pleasure visits. He is separated from his Canadian wife and is presently in the process of acquiring a Canadian divorce. He has no family ties in the United States. There appear to be no appealing factors present in the case sufficiently persuasive to warrant the granting of any discretionary relief. Recommendation: It is recommended that the excluding decision of the Board of Special Inquiry be affirmed.
So ordered.
Upon consideration of the entire record, it is ordered that the appeal from the decision of the Commissioner be and the same hereby dismissed.