D

                                MATTER or D ---

                     In DEPORTATION Proceedings
                                       A-6904129
                       Derided by Beard November 28, 1958

 Conviction of crime—"Conviction" attains finality when offender is placed on
  probation or sentence is suspended under section 1081 of Canadian Criminal
   Code.
Conviction in Canada has attained "finality" for purposes of the immigration
 laws when the offender has been placed on probation or on suspended sentence pursuant to section 1081 of the Canadian Criminal Code.

 CIIAROF. :
   Wart, ot.. Act of 1902 - 6eCC1011    t a) (1) (8 C.S.C. 1211(a) (1))--ExcludaMe at time of entry as alien convicted of crime, to wit, theft t two
                counts).
                             BEFORE THE BOARD

     Discussion: The case is before us by certification. The special
  inquiry officer terminated proceedings. He found that the respondent was not deportable. The Service representative has submitted
 a memorandum urging that the respondent be found deportable.
 Counsel has submitted a reply memorandum asking that the special
 inquiry officer's order be permitted to stand. The special inquiry
 officer's order will be withdrawn. The charge is found sustained.
    The issue is whether the respondent's convictions in Canada
 constitute "convictions" under the immigration and Nationality
 Act. On August 8, 1949, the respondent was convicted in the
 Magistrate's Court for the City of Windsor, Ontario, Canada, on
 two charges of theft contrary to section 386 of the Criminal Code of
 Canada. Respondent was placed on suspended sentence on each
 charge and was required to sign a recognizance for $100 for a matter
 of 6 months and pledge that he would be of good behavior and
keep the peace.
    The action of the judge was taken sander the authorization contained in sections 1081 et seq. of the Canadian Criminal Code
which we set out in the Appendix and which in brief provide that
in certain convictions the court may place the offender upon probation, providing that the offender enters into a recognizance to be

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   of good behavior, and to appear and receive judgment when called
  upon. If, subsequently, information is filed under oath that the
  offender has failed to maintain good behavior, the court may issue
  a warrant for his arrest, and upon proof of the violation of the
  conditions of probation can enter a judgment sentencing the offender
  to imprisonment on the original offense.
     The special inquiry officer ruled that the conviction under section
  1081 lacked finality because after a sentence is suspended the
  magistrate has no jurisdiction to impose sentence unless the information under oath was filed charging a breach of the recognizance, and because if attempt is made to suspend sentence and
  recognizance is not taken, the court at a later date may be without
  power to ,,entenco the accused. The special inquiry officer believes
  that this situation is similar to that in P2.110 V. Landon, 

. The Service representative argues that the procedure followed
  was the suspension of the imposition of sentence which we have
  held results in a conviction under the immigration laws, and that
  what resulted was "a di8position of the matter and not a mere
  postponement of the proceedings." We believe that the Service
 representative has correctly evaluated the situation.
     In Matter of 0       , 

, we attempted to set down
 the standards by which the existence of convictions for immigration
 purposes could be determined. We stated that to be a conviction
 under the immigration laws there must be a degree of "finality"
 in the disposition of the case following a finding of guilt but that
 it was not necessary to find that the conviction was a final one.
 "Finality" was found in cases where, after a finding of guilt, sentence to punishment was passed; sentence was passed and suspended;
 or the imposition of sentam, was suspended. We stated that
 "finality" did not exist where after a finding of guilt the court
 merely postponed any further action in the case, leaving itself free,
 at least theoretically, to pass sentence to punishment ; pass sentence
and suspend the execution; or suspend the imposition of sentence
 (Matter of J—, 

). The special inquiry officer
is of the belief that resort to section 1081 is equivalent to merely
postponing any further action in the case. However, a review of the
Canadian decisions establishes that the procedure results not merely
in postponement of further action, but results in the suspension of
the imposition of sentence, then achieving a "finality" In the disposition of the case.
    If action under section 1081 resulted in mere postponement of
the consideration of the case, then, theoretically at least, the court
should have the power to decide the case at any time. However, it
is settled that the court does not have such power. When disposition has beeen made under section 1081 the court is without power

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to make any further adjudication in the case unless the convicted
person has violated the terms of his probation, this fact has been
called to the attention of the court by information under oath,
and a warrant for the arrest of the offender has been issued. Even
then, unless it is osteblished that there lies been a violation of the
conditions of probation, the court has no power to inflict punishment upon the offender. In Rex v. Glasgow, 67 C.C.C. 392 (1936),
the offender was convicted in May 1936 of stealing hens. He was
released on recognizance in the sum of $200. In September 1936,
he was tried, convicted, and sentenced for assault, disturbance and
intoxication in a public place. The court also sentenced him to 6
months on the conviction for theft. The appeal court ruled that
the court had no jurisdiction over the offender on the theft charge
because information had not been filed stating that he had failed to
observe his recognizance and because nu warrant fur his arrest had
been issued. The sentence to 6 months was set aside. King v.
Sitonan, 6 C.C.C. 224 (1902), was an application for discharge from
custody. In June 1902, the defendant had been convicted for being
an inmate of a disorderly house. Under the provisions of the
predecessor to section 1081, the defendant had been ordered released
upon- her entering into a recognizance. In September 1902, the
defendant was tried for another offence of the some kind before
the same magistrate and acquitted. However, the magistrate thereupon sentenced her under the June conviction. On appeal it was
ordered that the prisoner be discharged from custody. It was held
that the magistrate had no jurisdiction over her on the first conviction because she had not been brought before him by a warrant
of arrest issued on the basis of an information that she had failed
to comply with the terms of her recognizance, and it had not been
proven that she had broken her recognizance.
   Action under section 1081 results in the placing of the convicted
person on probation. No further action is required by the court.
In fact, the court has no jurisdiction to take further action unless
other factors arise. The case has been disposed of by the court.
In other words, what results is the suspension of the imposition of
sentence. The courts of Canada have stated as much. In Rex v.
Switaki, 54 C.C.C. 332 (1930), the court said that to suspend
sentence under section 1081 means "suspending the passing of sentence."
   Because the results of court action are so differently regarded
Trott! jurisdiction to jurisdiction, it is difficult to determine just
when a conviction has occurred. Therefore, to be sure that what
has happened in court is a "conviction" for immigration purposes,
it is necessary to establish that the result of the court action is
considered a conviction by the jurisdiction in which it occurred

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     562713-61— — 15
 ([flatter of 0--, supra). As to this, we must note that section
 1081 by its very terms cannot come into operation until there has
been a "conviction." Rex v. McGarry, 90 C.C.C. 52 (1947), involved
a person who had been convicted before a police magistrate for unlawfully assaulting his wife. He was placed on suspended sentence
for one year on conditions outlined in the recognizance pursuant
to section 1081. He filed an appeal from the conviction. Counsel
for the Crown moved that the appeal be not entered because the
defendant had failed to comply with certain requirements of Lim appeal law relating to the posting of bond. In discussing the case,
the court held that there had been a "conviction." The defendant
WaS referred to as a "convicted person" with the right to appeal.
In Jephson v. Barker, 3 T.L.R. 40 (1886), one had been found
guilty as the keeper of a disorderly house in England and had
been ordered to enter into his recognizance to come up for judgment when called upon. The question was whether this was a
"conviction" within the terms of a statute providing for the payment
of money to certain persons who had furnished information leading IA) the "conviction" of any person keeping a disorderly house.
The court ruled that there had been a "conviction." The court
stated that the "order of the court that the prisoner should enter
into hie recognizance to come up for judgment if called upon"
a judgment and a "final judgment except in certain events." To
the same effect is King v. Bab johns, 3 K.B. 171 (1913), which involved the question whether a parolee who subsequently was found
guilty of committing another crime for which he was bound over
to come up for judgment when called upon, forfeited his parole
under the provisions of a law requiring forfeiture by s parolee who
had been "convicted" of another crime.
   The special inquiry officer relied upon Pint) v. Laotian, supra.
In Matter of 0 , supra, we fully set forth our evaluation of
Pico. From Pine it is possible to draw the broad rules that a
finding of guilt must be followed by further action by the court
disposing of the case with some degree of "finality" and that a case
placed "on file" is not sufficient to support a deportation charge.
However, neither the reasoning of the court nor the facts upon
which it relied are complete enough to offer us a guide as to what
action of a court following a plea of guilty, except for placing a
case "on file," constitutes a "conviction." Moreover, a case placed
on file can be taken from the "file" at any time and the defendant
given a sentence. In the instant case, the defendant cannot be punished after the expiration of this probation. We must hold then that
the respondent's convictions were convictions under the immigration
laws relating to the deportation of aliens.

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  We have chosen to deal with the issue of convictions on the terms
by which it was handed to us because of the importance in the administration of the immigration law of the section relating to the
conviction of aliens for crimes, and because the warrant charges the
alien with "conviction" of crime. However, we must point out that
in 1049 the alien entered a plea of guilty to the crime of theft.
This plea constitutes an admission of the commission of theft and
the alien having been found guilty by the court would thereafter
have been clearly inadmissible at the time of his entries as one who
admitted the commission of a crime involving moral turpitude.
  Respondent may be eligible for admission to the United States
for permanent residence under the provisions of section 5 of 

September 11, 1957, despite his convictions of crime.
This matter can be taken up with the Immigration Service and a
United States consul in Canada. 'There is no administrative relief
we can give the respondent.
  Order: It is ordered that the order of the special inquiry officer be and the same is hereby withdrawn.
  It is further ordered that the alien be deported from the United
States pursuant to law on the charge stated in the warrant of arrest.

                               APPENDIX

  SECTION 1081. (1) In any case in which a person is convicted
before any court of any offence punishable with not more than two
years' imprisonment, and no previous conviction is proved against
him, if it appears to the court before which he is so convicted or
the Court of Appeals, that, regard being had to the age, character,
and antecedents of the offender, to the trivial nature of the offence,
and to any extenuating circumstances under which the offence was
committed, it is expedient that the offender be released on probation
of good conduct, the court may, instead of sentencing him at once
to any punishment, direct that he be released on his entering into a
recognizance, with or without sureties, and during such period as the
court directs, to appear and receive judgment when called upon,
and in the meantime to keep the peace and be of good behavior.
1947, c. 55, s. 34.
  2. Where the offence is punishable with more than two years' imprisonment the court shall have the same power as aforesaid with
the concurrence of the conned acting for the Crown in the prucreution of the offender.
   3. The court may, if it thinks fit, direct that the offender shall pay
the costs of the prosecution, or some portion of the same, within
such period and by such installments as the court directs.

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   4. Where one previous conviction and no more is proved against
 the person so convicted and such conviction took place more than
 five years before that for the offence. in question, or was for en
offence not related in character with the concurrence of the counsel
acting for the Crown in the prosecution of the offender.
   5. The court in suspending sentence may direct that the offender
shall be placed on probation for such period and under such conditions as the court may prescribe, and may from time to time increase
or decrease such period and change such conditions, and that during
such period the offender shall report from time to time as the court
may prescribe to any officer that the court may designate, and the
offender shall be under the supervision of such officer during the
said period, and the officer shall report to the court if the offender
is not carrying out the terms on which the sentence is suspended,
and thereupon the offender shall he brought again before the court
for sentence.
  6. The offender may also be ordered to make restitution and reparation to a person or persons aggrieved or injured by the offence
for which he was convicted for the actual damage or loss thereby
caused, and the offender may while on probation be ordered as one
of said conditions to provide for the support of his wife and any
other dependent or dependents for which he is liable.
   1082. The court, before directing the release of an offender under
 the last preceding section, shall be satisfied that the offender or his
 surety has a fixed place of abode or regular occupation in the county
 or place for which the court acts, or in which the offender is likely
 to live during the period named for the observance of the conditions.
   1083. If a court having power to deal with such offender in respect of his original offence or ally justice is satisfied by information
on oath that the offender has failed to observe any of the conditions
of his recognizance, such court or justice may issue a warrant for
his apprehension.
   2. An offender, when apprehended on any such warrant, shall, if
not brought forthwith before the court having power to sentence
him, be brought before the justice issuing such warrant or before
some other justice in and for the same territorial division, and such
justice shall either remand him by warrant until the time at which
he was required by hie reengnizance to appear for judgment, or
until the sitting of a court having power to deal with his original
offence, or admit him to bail, with a sufficient surety, conditioned
on his appearing for judgment.
   3. The offender when so remanded may be committed to a prison,
either for the county or place in or for which the justice remanding
him acts, or for the county or place where he is bound to appear for

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judgment; and the warrant of remand shall order that he be
brought before the court before which he was bound to appear for
judgment, or to answer as to his conduct since his release.
  (Tremear's Criminal Code of Canada, Fifth Edition and 1953
                           Supplement)




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