CAFE & Free Speech Supporters Heard In McCorkill Will Case; Judge Reserves
St. John, New Brunswick. January 28, 2014. Lawyers defending the right of a man to will his estate to a controversial group had their day in court today. At the end of this morning’s session before the Court of Queen’s Bench here, Judge Grant reserved decision about a motion brought by Isabelle McCorkell, sister of the late Professor Robert McCorkill who had willed his collection of antique coins and artefacts to the U.S. National Alliance.
However, before the free speech lawyers defending the bequest were heard, the third of three interveners advocating the nullification of the will addressed the court. Danys Delaquis, representing the Centre for Israel and Jewish Affairs, said: “CIJA opposes anti-Semitism, racism and discrimination. There is no room for any Jewish person in the White space the National Alliance seeks to create,” he complained. “If the bequest is not voided it will be detrimental to the Canadian Jewish community,” he added.
“Where is the evidence from Mr. Gleibe and Mr. Streed [the executor] that the bequest will not be used in ways detrimental to the Jewish community?”
“The Peel Board of Education had found the National Alliance to be ‘a well known White supremacist organization.’ Therefore, it would be quite reasonable for this court to make this finding of fact as was done in a grievance terminating Mr. Fromm as a teacher.” A late CIJA affidavit from one Simon Fogel smeared CAFE director Paul Fromm in an ad hominem attack. Mr. Fromm is not a beneficiary in this case. The grievance finding had merely restated accusations about the NA. The grievance board had never investigated the NA.
Mr. Delaquis then issued a warning: “If a barrister or solicitor here in New Brunswick adopted the views of the National Alliance, he would soon be out of work. The role of regulatory bodies is vital to see the values of inclusiveness we hold prevail.” The St. John lawyer seemed to see no irony in recommending the exclusion of dissident opinions from his ideal universe of “inclusiveness.”
He urged the Court to take an activist approach: “The Courts cannot leave it to the legislature.”
There are no redeeming qualities in the National Alliance in regard to Canadian public policy,” he insisted. “The National Alliance excludes an entire people from its White space. This is repugnant and offensive. The public interest must outweigh the wishes of Mr. McCorkill. Can the Court allow a testamentary gift to stand that is contrary to public policy?” he challenged the judge.
Rising for the defence was John Hughes, a tall stately lawyer from Moncton with a shock of white hair.” “I am acting for the Estate of Robert McCorkill, not the National Alliance,” he explained. “There is no propaganda or hate speech in the will. No one has argued that Robert McCorkill was not capable of making this bequest and the bequest is clear.”
“The National Alliance,” he explained, “is described as an incorporated company in the State of Virginia, with an office in West Virginia. There is no evidence the National Alliance has violated any U.S. law and it remains a U.S. corporation in good standing. There is no evidence the National Alliance was ever convicted or charged with an offence in either the U.S. or Canada. Is the NA duty bound to obey the law of any country but its own?” he asked.
“The affidavit of the Southern Poverty Law Centre’s Mark Potok’s points to six ‘contact points’ the National Alliance had in Canada in 2003 — Toronto, Edmonton, Calgary, Vancouver, London, Ottawa — but none in New Brunswick. Potok admits a name can be included on a ‘hate list’ for merely the mentioning of a P.O. Box. Erich Gleibe, National Chairman of the NA, said in his affidavit that, as of 2013, the NA has no programmes in Canada.”
“There is no evidence,” he added, “that the National Alliance has ever held a meeting in New Brunswick. Without a credible presence in New Brunswick, the NA is subject to the jurisdiction it resides in; namely, West Virginia, where the glorious First Amendment with its guarantee of freedom of speech is the law that governs it, not the laws of Canada.”
“The National Alliance is a peaceable organization that promotes and exchanges ideas and does not cross the line into crime. Therefore, the National Alliance qualifies as a beneficiary under the law governing it — U.S. law.”
CAFE Director Paul Fromm in press scrum
Referring to the applicant and her allies as “the unruly chorus about the law of public policy,” Mr. Hughes argued: “Courts can make decisions for the restraint of the population under their jurisdiction, like the New Brunswick horses in the Wishart case (the frequently cited case where a provision requiring the shooting of the man’s four horses was overturned by a Court.)”
“The disposition of this will either way will have no effect on the people of New Brunswick. The appropriate decision is for the Court to follow the guidance of Sec. 17 of the Interpretation Act and dismiss this application with costs.”
The final submissions were from Andy Lodge, a well organized litigator from St. John, representing the Canadian Association for Free Expression. “I am not here to defend the National Alliance,” he said. “I have listened for many hours and read through 1,000 pages of legal documentation and I am struck by one point — all the energy and money spent over the past six months, with very little time spent on the actual McCorkill will.”
“There is no legal basis,” Mr. Lodge argued, “to challenge the McCorkill will. It is a valid will, properly constructed and compliant with the Wills Act. No words in this will are contrary to any public policy. This is a very significant point and the real reason this Court should refuse this applicant.”
“Other interveners,” he continued, “are very concerned about the character, written words and behaviour of the National Alliance. That alone is not enough to challenge a will.”
“Make no mistake,” Mr. Lodge warned, “the applicant and the supporting interveners are trying to get this Court to go where no Court has gone before. The applicant is trying to get this Court to evaluate the beneficiary and to find effectively that the National Alliance is not worthy to receive a testamentary gift — the ‘public policy issue.’ Despite legal arguments over the past six months, there is no evidence of any members of the National Alliance being charged with crimes. Otherwise, the representative of the Attorney General of New Brunswick [Mr. Williams] would be downstairs charging the National Alliance.”
And, he continued, “even if a person is charged with a crime that does not disqualify him from receiving a bequest.” He pointed out that in the very few precedents where the court did nullify a section of a will it was because of the language of the will; for instance, the much referenced Wishart horse case, where the will mandated the shooting of the horses.
“There is no language of hate in this will,” he explained. “My learned friends who want to argue that ‘hate speech’ is not allowed in Canada are engaged in an exercize in futility. The real question gets lost and that is whether to prevent possible future acts from happening a person can be excluded from receiving a gift from a testator in New Brunswick or Canada. There is no precedent for this very large and drastic step where receiving a bequest depends on the character of the beneficiaries. Are we saying a known drug dealer can never receive a bequest? What about Greenpeace or pro-life groups or any organization dedicated to private health care? Some of their beliefs are against current ‘public policy’ in Canada.”
Pursuing his argument, he added: “We open beneficiaries up to examination of their writings, character and beliefs. Where is the new line? This evaluation of the beneficiary should not be permitted at all to avoid drastic pitfalls in a free and democratic society.”
And, he said, “none of the examples of case law examined the beneficiaries.”
Imagine two siblings left an estate. “If we begin evaluating beneficiaries, it would be in their best interests to slander each other as unworthy. It would be in their financial interests to smear each other.”
“Would my learned friends be here today if the money had been given to Mr. Gliebe?” he asked. “If the courts allow the examination of the character of beneficiaries, where is the certainty in counselling a client on the drafting of his will?” he wondered,.
“This Court shouldn’t be used to debate ‘hate’,” he said emphatically in his lilting Newfoundland accent. “Make no mistake: The applicant and the other interveners are trying to open up the courts to an avalanche of beneficiary disputes. They are opening a Pandora’s Box. There will be no limit to what is potentially relevant.”
Mr. Lodge pointed out: “In the past, Courts stuck to the wording of the will to establish public policy. I submit respectfully that a finding for the applicant will do more harm than good.”
“We have already seen bad effect happening here, with the attack on other people’s character in the most recent CIJA affidavit [attacking Paul Fromm, Director of CAFE]. Suffice it to say, the affidavit contained personal and irrelevant information intending to discredit Mr. Fromm. It was an attack on his character. He is not even a beneficiary in this case. Why did CIJA do this? Because character has now become an issue in estate litigation! Discredit the other beneficiary and the more likely you are to get their portion of the bequest voided and get more for yourself.”
“That is what Isabelle McCorkill is doing here today, trying to get more money,” he charged.
“Whether the National Alliance’s values are congruent with the values of Canada should not be the issue. Allowing this applicant to succeed by assailing the character of others should not be permitted,” he concluded.
Just before noon Judge Grant announced: “I am going to reserve my decision. I’ll get my decision out as quickly as I can.” — Paul Fromm