Court of Appeals Reserves in Crucial McCorkill Appeal: Key Free Speech and Property Rights on the Line
A THREE JUDGE panel of the New Brunswick Court of Appeals reserved its decision in the McCorkill Will appeal. Panel chairman Judge Kathleen Quigg said: “We are going to try to do it as quickly as possible but it also must be translated (into French). It will take a couple of months.” Experienced court observers predicted a six month wait for the decision. (ILLUSTRATION: CAFE Director Paul Fromm (left) with John Hughes, lawyer for the Trustee of the McCorkill Estate, Provincial Court of Appeal, Fredericton, NB., June 18, 2015.)
“This case is crucial for freedom of speech and freedom of beliefs and for property rights in Canada,” said Paul Fromm Director of the Canadian Association for Free Expression (CAFE) in a statement before the appeal began.
The late chemistry professor William McCorkill left the bulk of his estate consisting of old artifacts and rare coins, variously estimated at between $150,000 and a million dollars, to the U.S.-based White nationalist National Alliance. The will was probated in 2013. When the information became public, a Montgomery based censorship group called the Southern Poverty Law Center complained that the bequest would revive Nazism. The SPLC had no standing in Canada, but Ottawa lawyer, copious human rights complainant and loud anti-racist Richard Warman took up the cry and announced the will should be nullified as the bequest was “contrary to public policy.” Isabelle McCorkell (yes, different spelling), the long estranged sister of Robert McCorkill, who had taken no part in the nine year probate proceedings emerged and made an application to nullify the will on the grounds, get this, that it was “contrary to public policy.” Quickly the Attorney General of New Brunswick, the Centre for Israel and Jewish Affairs and the League for Human Rights of B’nai B’rith intervened in support of this brazen attack on property rights. The Canadian Association for Free Expression intervened to support the lawyer for the trustee, John Hughes of Moncton, and to support freedom of belief, freedom of speech and property rights, specifically, the right of a testator to direct his estate as he sees fit.
The application was heard in January, 2014. In June, 2014, in a surprise decision, Mr. Justice William Grant nullified the bequest on the grounds that it was “contrary to public policy.”
The bulk of the work of an appeal is in the written submissions presented to the Court. The actual appeal hearing allows each party to highlight their best arguments and the judges to question and challenge these arguments.
CAFE’s lawyer Andy Lodge explained: “We are here today because the Court of First Instance found the National Alliance, the beneficiary of the gift to be unworthy. This is a ground breaking precedent. There are no conditions in the bequest. Some of the evidence in the affidavits [there was no viva voce testimony] was double hearsay. There was no previous case law to rely on. The goals and objectives of the National Alliance should not be in question.”
Mr. Lodge was repeatedly interrupted by questions from Judge Alexandre Deschenes.
Mr. Lodge continued: “The public policy grounds have generally been a last resort in an effort to invalidate a bequest. There has been much discussion about the activities, communications and character of the National Alliance. The test should be McCorkill.” He gave this bequest with no strings or directions attached. “Giving a bequest to a group some find objectionable is not contrary to public policy. It is difficult to evaluate the character of a beneficiary. This could be a very, very slippery slope. It will shift estate litigation to evaluating beneficiaries. You step away from the conditions, if any, imposed by the testator. How is a court to evaluate how an organization might spend the money? This decision opens that door.”
Chairman Justice Quigg wondered: “Just because it’s new law, just because we have no jurisprudence to rely on doesn’t mean we can’t go forth. There’s legislation against the dissemination of hate propaganda. There could be a link here between the National Alliance and dissemination.”
Then joining the battle on behalf of CAFE was Mr. Lodge’s associate Jean-Yves Bernard, “Is it to be against public policy to give a bequest to a group or person of bad character?” he asked. “Mr. Justice Grant is creating new law.” The ruling, he added, “creates a problem for estate law, as we must now look at the character of the beneficiaries, their worthiness. It brings ambiguity into estate law.”
“These cases would be very rare,” Judge Quigg suggested.
The Grant ruling has created, “a sliding scale. It makes estate matters very unpredictable,” Mr. Bernard added. “Until now a testator could dispose of property as he saw fit, unless he imposed a codicil that was illegal” — like a New Brunswick will, frequently cited in this case, where the testator wanted his four horses shot. The Charter supports freedom of belief and the right to support a belief with a bequest. Already this case has inspired Spence vs. BMO using ‘public policy’ to state we should write someone into a will because the testator wrote someone out of the will on racial grounds.”
Next, John Hughes of Moncton, lawyer for the Trustee or Executor of the Estate, weighed in to support CAFE. “The International Boundary separates the U.S. from Canada,” he explained. “The McCorkill will makes a bequest in New Brunswick but the proceeds go to a beneficiary in the United States.”
“I labour under a restriction because of a lack of funds due to a Court injunction freezing the funds of the estate. This injunction has crippled the ability of the estate to defend itself and has caused the abandonment of one of the estate’s appeals.”
“The beneficiaries are in the U.S. and this raises the question of ‘public policy.’ Whose public policy? There is no evidence that the National Alliance was ever charged or convicted in either Canada or the U.S. The National Alliance in the U.S. is protected by the First Amendment of the Constitution.” And, he added, former N.A. Chairman Erick Gleibe stated in his affidavit that the organization has no activities in Canada. “How can a Canadian Court deny a bequest to a U.S. citizen or group?” he demanded. “This is extraterritoriality.”
He then turned his guns on the mischievous organization behind this raid on the estate. “The outrage of minorities to this bequest is irrelevant. This estate is being sent to the United States. The Southern Poverty Law Center is the puppet master behind this case. The League for Human Rights of B’nai B’rith [which has since withdrawn from the appeal] in its submissions made clear references to the SPLC’s website.”
One of the interveners, he added, “went into a rant against Mr. Fromm and CAFE which I objected to as irrelevant.” He observed that, “the SPLC separates its contributors from tens of millions of dollars to enrich itself. The Attorney General has been led down the garden path. The SPLC has enlisted law enforcement agencies and seems to have sold a bill of goods to the new Brunswick Attorney General,” he charged, “and the puppet master role of the SPLC seeks to manipulate the Court of New Brunswick. The Wills Act, Sec. 24(2) of New Brunswick holds that a testator may will his bequest as he sees fit. His failure to note this was an error on Judge Grant’s part,” he argued. “The will, therefore, has legal protection in New Brunswick.”
In his decision, Judge Grant “characterized the National Alliance as unreservedly criminal,” Mr. Hughes said. “However, we have a special obligation to our own race, to improve its prospects. It is not racism. There was no evidence of the National Alliance operating in New Brunswick. Yet, Judge Grant points to the participation of the Attorney General of New Brunswick as an intervener to protect the people of New Brunswick.”
Further, Mr. Hughes argued, “there is no evidence of National Alliance Internet dissemination in Canada. Therefore, Judge Grant had no jurisdiction to make the findings he did. Groups that don’t value White survival have criticized the National Alliance.”
In response to criticisms of National Alliance founder William Pierce’s fictional writings — The Turner Diaries and Hunter — and their violence associated with race war in those pages, Mr. Hughes argued: “Where would Hollywood or pulp fiction be without fictional violence? Dr. Pierce’s goal in writing was the preservation of the White Race.”
“To render a judgement against a group from another country because of its character is an insult to the U.S.,” he added.
“Where do we get the authority to dictate our own public policy to a U.S. group?” Mr. Justice Deschenes asked.
Continuing, Mr. Hughes said: “The Executor has asked me to express the point that. Justice Grant may have been biased “in freezing the assets of the Estate and money due the National Alliance and my accounts. He could have entertained a review of the passing (or unfreezing of the assets) of my accounts, but he postponed it until after this appeal.” The lack of funds had restricted Mr. Hughes ability to act.
Next came those arguing against the appeal. Mr. Justice Deschenes observed: “Promoting the White Race is not necessarily detrimental.”
Arguing for the Applicant Isabelle McCorkell, Marc-Antoine Chiasson insisted: “Promoting the White Race if it is the majority, is detrimental to minorities.” Admitting that such brazen court intervention to nullify a will as contrary to public policy had little precedent, he said: “To suggest that because it’s a novel idea doesn’t mean the courts shouldn’t intervene. This Court is absolutely able and should intervene. There is evidence that the National Alliance is a White supremacist organization. Public policy is that hate propaganda and hate groups offend public policy. So, therefore a gift to the National Alliance offends public policy. Mr. Chiasson then contended that advocating for “White living space flies fully in the face of public policy.”
“Why can’t Mr. McCorkill make a gift to an organization that is functioning legally in the United States without impediment?” Mr. Justice Deschenes queried.
“International boundaries shouldn’t be an impediment to voiding the will,” Mr. Chiasson responded. Also, “I don’t believe fear of opening the floodgates [to more litigation] is sufficient grounds not to act.”
“But there is no precedent on this issue,” Mr. Justice Deschenes interjected.
Mr. Chiasson admitted: “There is not.” Then, he persisted: “The impact of this gift flies against public policy. The fact that this gift would help fund a hate group flies against public policy. I ask the Court to dismiss the appeal and we seek costs from CAFE.”
Arguing for the Attorney General of New Brunswick, Richard Williams admitted: “None of us has been able to find a similar case in our extensive research, as Mr. Lodge has indicated. This seems to be the first case of its kind in Canada where a beneficiary’s character is at issue. This is a rare instance. The National Alliance has no redeeming qualities. Even a drug addict is someone’s son.”
Almost the last word was left to Mr. Justice Deschenes: “If the National Alliance had been performing illegal acts in the United States, the judge [Grant] and parties would have known about it.”
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