Update on McCorkill Case where Judge can Throw Out Your Will for Giving to Politically Incorrect Causes

Preview YouTube video Update on McCorkill Case where Judge can Throw Out Your Will


This is the first video in the history of planet Earth where Paul Fromm and Brian Ruhe made a long distance video by Skype, on June 4, 2016. Paul has been the director of the Canadian Association for Freedom of Expression (CAFE) since 1983 and this is the next in a series of videos on the McCorkill case.

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Court of Appeals Reserves in Crucial McCorkill Appeal: Key Free Speech & Property Rights on the Line

Court of Appeals Reserves in Crucial McCorkill Appeal: Key Free Speech & Property Rights on the Line
Fredericton, New Brunswick. June 18, 2015. 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.
 
“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 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 Brith 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 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 of 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. “Untiol 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 v 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.”
 
Frederick Fromm's photo.
CAFE Director Paul Fromm with John Hughes, lawyer for the
Trustee of the McCorkill Estate, Provincial Court of Appeal,
Fredericton, NB., June 18, 2015.
 
 
 
“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 cjarged 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 Centre is the puppet master behind this case. The League for Human Rights of B’nai Brith [which has since withdrawn from the appeal] in its submissions made clear references to 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 to 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 ther 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 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 iin 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.”
__________________________________________
 
Please consider making a contribution to help CAFE pay its bills in this crucial appeal defending free speech and property rights.
 

CAFE, Box 332, Rexdale, Ontario, M9W 5L3

 

__   Here’s my special donation of _____  to help  CAFE pay off its legal bills in the McCorkill Will Appeal to be heard in New Brunswick this month.

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CAFE & Free Speech Supporters Heard In McCorkill Will Case; Judge Reserves

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.”
 
Photo
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

 

Judge reserves decision in unusual estate case

TELEGRAPH JOURNAL PIC OF PAUL AND MALCOLMJudge reserves decision in unusual estate case

JENNIFER PRITCHETT Telegraph-Journal
January 28, 2014

 

Malcolm Ross attended the second day of the trial as an observer. Paul Fromm in foreground

Photo: Jennifer Pritchett/Telegraph-Journal

SAINT JOHN – A Court of Queen’s Bench judge has reserved his decision on whether a Saint John man’s will is legal and can bequeath about $250,000 in rare coins and antiquities to an American neo-Nazi group.

Harry Robert McCorkill left his estate to the National Alliance when he died in 2004. A decade later, his sister, some rights groups and the province of New Brunswick went to court to prevent the money from flowing to the white supremacist, anti-Semitic organization.

The trial into the matter, held Monday and Tuesday, saw lawyers from both sides make arguments in an unusual legal case that weighs peoples’ individual right to leave their estate to whomever – and whatever type of organization – they choose against the court’s ability to intervene in special circumstances that are deemed against “public policy.”

There’s little case law on the subject and in many ways, the debate around the McCorkill estate is unique and breaks new legal ground.

Dan Delaquis, a lawyer for the Centre for Israel and Jewish Affairs, told the court Tuesday that the gift, if it’s permitted to stand, will be “detrimental to the Jewish community” and will result in an erosion of Canadian values because the National Alliance has a mandate of hate and is a well-known white supremacist group.

“We submit in this case that the public interest must outweigh the wish of Mr. McCorkill,” he said.

Marc-Antoine Chiasson, a lawyer for Isabelle Rose McCorkill, argued that one need only look at the National Alliance’s own handbook to see firsthand how it purports a racist message.

He read excerpts of the small handbook in court on Monday, highlighting how it points to “white” living spaces with white schools and residential areas with the overall view to create a white world.

Chiasson also pointed to the words of National Alliance founder William Luther Pierce and described his books, Hunter and The Turner Diaries, which were written under the pseudonym “Andrew Macdonald,” as repugnant.

But Andy Lodge, a lawyer for the Canadian Association for Free Expression (CAFE), told the court Tuesday that the fact that an organization may be considered “morally reprehensible” should have no impact on whether it can be a beneficiary of an estate. He pointed out that there are no laws prohibiting even a serial killer or a drug dealer to receive assets from a will.

For the court to evaluate whether a beneficiary such as the National Alliance is against “public policy,” he argued, would open “Pandora’s box.”

He said it would do more harm than good if the courts started assessing a beneficiary’s past or try to predict how they would spend the money they receive from a will.

Lodge described the court debate over McCorkill’s will as an “exercise in futility.” He argued there is no legal basis to challenge the will because it’s valid, follows New Brunswick’s Wills Act and contains no words that are contrary to Canada’s public policy.

The lawyer said he knows of no law that would prohibit a living person in Canada from giving money to the National Alliance.

John Hughes, the lawyer for the executor of the estate Fred Streed, argued that the application to prevent the disposition of McCorkill’s estate to the National Alliance should be dismissed.

Isabelle McCorkill didn’t attend the trial in Saint John nor did any representative from the National Alliance, a West-Virginia based organization.

Chiasson, her lawyer, has said that the legal battle over her brother’s estate has never been about the money, but rather, about preventing it from going to a neo-Nazi group.

Catherine Fawcett, who represents the League for Human Rights of B’nai Brith Canada, also argued that the gift to the National Alliance is “completely against public policy” and pointed to the connection between hate propaganda and violence.

McCorkill’s estate includes, among other items, a collection of hundreds of Greek, Roman, and Italian coins – some dating back to 525 BC – that he amassed since the 1970s. Some items were once displayed at the University of Saskatchewan’s Antiquities Museum and a release from that institution in 1997 described him as a well-travelled collector and a chemist who spent time at MIT and the Smithsonian Institution.

Little else is known about the man or why he lived in Saint John, where he moved about a year before his death. He lived quietly in a townhouse in Millidgeville and after he died at home in 2004, his body remained at the Saint John Regional Hospital for nearly two weeks while the authorities tried to track down his next of kin.

The National Alliance paid for his funeral and hired Malcolm Ross and William Ross of Moncton to transport, store and take inventory of his assets.

Malcolm Ross, who attended McCorkill’s court hearing in Saint John on Tuesday with his brother, was the focus of a 1996 Supreme Court ruling that found that the former Moncton-area teacher whose off-duty writings claimed Christians were under attack by an international Jewish conspiracy, had in fact “poisoned” the educational environment. The ruling upheld a human rights board of inquiry that ordered Ross into a non-teaching job.

Outside court, he told the Telegraph-Journal that he was there to “observe,” but declined to comment on his connection to the McCorkill matter.

The McCorkill Case — Trying to Limit the Evidence to Facts, Not Rants and Name Calling

The McCorkill Case — Trying to Limit the Evidence to Facts, Not Rants and Name Calling

St. John, New Brunswick. November 5, 2013. Court room 13 may have turned out to be a lucky number for those seeking to prevent the hijacking of a bequest to a controversial group. Judge William T. Grant reserved judgment today for ten days in regards to a motion by Andy Lodge, representing the Canadian Association for Free Expression (CAFE), to strike large portions of five affidavits filed on behalf of Isabelle McCorkell and three interveners seeking to revoke a large bequest by former chemistry professor Robert McCorkill to the West Virginia based National Alliance. The extraordinary application to overturn the  bequest was instigated by the Southern Poverty Law Centre (SPLC) of Montgomery, Alabama, a notorious anti-free speech group that specializes in fierce attacks on those it denounces as “haters.”

CAFE wants to see the case heard on the basis of facts and primarily law and the sanctity of a man’s will. The other side seems to want to turn the proceedings into a  witch-hunt against a politically unpopular group, with plenty of name calling and extravagant claims and exaggerations. Typical of this approach is paragraph 4 under a section entitled “Facts” in the brief presented on behalf of Isabelle McCorkell: “The National Alliance is a long-standing neo-Nazi group in the United States. … Through its hate propaganda, the National Alliance promotes a political programme …including genocide, ethnic cleansing, and the use of hate-motivated violence and terror to achieve its aims.” On the contrary, the National Alliance never promoted violence or terror. As to “hate propaganda” the NA was never charged, much less convicted, under Canada’s  notorious “hate law” (Sec. 319 of the Criminal, Code) and there are no such “anti-hate” laws in the U.S.

After a three and a half hour hearing, Judge Grant ruled: “We cannot proceed with the application next week. I will give you my decision” on the motion to strike portions of the affidavits “next week on November 13.”

 

The Court of Queen’s Bench judge added: “I’ll hear any submissions you might have on the deponents. There are some unusual features to this case. There may be valid reason

ns to consider cross-examination of deponents in a case like this.”
 Photo: The McCorkill Case -- Trying to Limit the Evidence to Facts, Not Rants and Name Calling

St. John, New Brunswick. November 5, 2013. Court room 13 may have truned out to be a lucky number for those seeking to prevent the hijacking of a bequest to a controversial group. Judge William T. Grant reserved judgment today for ten days in regards to a motion by Andy Lodge, representing the Canadian Association for Free Expression (CAFE), to strike large portions of five affidavits filed on behalf of Isabelle McCorkell and three interveners seeking to revoke a large bequest by former chemistry professor Robert McCorkill to the West Virginia based National Alliance. The extraordinary application to overturn the  bequest was instigated by the Southern Poverty Law Centre (SPLC) of Montgomery, Alabama, a notorious anti-free speech group that specializes in fierce attacks on those it denounces as “haters.”

 CAFE wants to see the case heard on the basis of facts and primarily law and the sanctity of a man's will. The other side seems to want to turn the proceedings into a  witch-hunt against a politically unpopular group, with plenty of name calling and extravagant claims and exaggerations. Typical of this approach is paragraph 4 under a section entitled "Facts" in the brief presented on behalf of Isabelle McCorkell: "The National Alliance is a long-standing neo-Nazi group in the United States. … Through its hate propaganda, the National Alliance promotes a political programme ...including genocide, ethnic cleansing, and the use of hate-motivated violence and terror to achieve its aims." On the contrary, the National Alliance never promoted violence or terror. As to "hate propaganda" the NA was never charged, much less convicted, under Canada's  notorious "hate law" (Sec. 319 of the Criminal, Code) and there are no such "anti-hate" laws in the U.S.

 After a three and a half hour hearing, Judge Grant ruled: “We cannot proceed with the application next week. I will give you my decision” on the motion to strike portions of the affidavits “next week on November 13.”

The Court of Queen’s Bench judge added: “I’ll hear any submissions you might have on the deponents. There are some unusual features to this case. There may be valid reasons to consider cross-examination of deponents in a case like this.”

CAFE's lawyer Andy lodge is seeking to strike large portions of the complainants' affidavits because they do not comply with the rules. Most of the evidence is being submitted by affidavits (sworn statements). Marc Antoine-Chiasson, lawyer for Isabelle McCorkell [yes, different spelling from her brother's name] decided to proceed by means of an application to the court, rather than a full blown trial with discoveries. Mr. Lodge explained: "There are very strict rules for affidavits in application cases because the application can be the end of the issue. An affidavit is assumed to be true. There are many paragraphs in the five affidavits that don't comply with the rule."

 "Rule 390.01 sub 5" became a refrain as Mr. Lodge dissected some thirty paragraphs in five affidavits. The rule states: "An affidavit for use on an application shall be confined to the facts within the personal knowledge of the deponent; but the affidavit may contain statements as to the information and belief of the deponent with respect to facts which are not contentious, if the source of his information and his belief therein are specified in the affidavit." [39.01(5)]

Indeed, in the case Bouctouche Micmac First Nation v New Brunswick (Minister of the Environment), Mr. Justice Rideout of the New Brunswick Court of Queen's Bench Trial Division ruled, quoting a judgement by Mr. Justice Vancise of the Saskatchewan Court of Appeal: "The rule is quite clear in limiting affidavit evidence to such 'facts as the witness is able of his own knowledge to prove."

 In defence of the Potok affidavit, Mr. Chiasson  ( Miss McCorkell's lawyer) "seems to say facts asserted by the deponents are not contentious. We disagree. And in Miss Fawcett's brief (on behalf of the intervener the League for Human Rights of B'nai Brith), I see no case law where hearsay evidence is permitted in an application setting."

CAFE objected to the inclusion of several of B'nai Brith's Annual Audit of Anti-Semitic Incidents on many grounds. One, was that none of the Audits even mentioned the National Alliance or its brief long-ago activities in Canada. Mr. Lodge added: "The Audits are mainly third party complaints. How can we analyze the motive of a fourth party, usually unnamed being complained against? These are not expert reports, these are not scientific reports. They are hearsay from people not even quoted but summarized."

 One of his main targets was an affidavit from Mark Potok of the Southern Poverty Law Centre. Much of it seemed more a rant and name calling than a statement of facts.  Mr. Lodge challenged most of the affidavit as being opinion, argument or hearsay. For instance, paragraph 5 of Mr. Potok's first affidavit charges that the National Alliance "is the most important Neo-Nazi group in America." That, Mr. Lodge, noted was an opinion, not a fact. Potok had patted himself on the back as being an "expert" on the National Alliance. That, too, is an opinion, not a fact.

 Dominique  Fontaine, representing Isabelle McCorkell, said: "CAFE doesn't like Mr. Potok's evidence and is adopting a shotgun approach. We are seeking significant costs as this motion is not necessary and should have been brought as part of the application."

 "You can't put a bunch of hearsay and opinions into your affidavit," CAFE lawyer Andy Lodge shot back. "These are irregular affidavits. This is a fair motion and I take great offence at the accusation that it is not. We are the ones entitled to substantial costs. We have gone to tremendous expense to try to keep these affidavits focused on facts in keeping with Rule 30.01 (5)."

 In outlining Miss McCorkel's demand that the bequest be nullified, Ms Fontaine made it clear that the objections are based on the National Alliance's political beliefs, saying: "We shall argue that this gift is contrary to public policy. The Court must know the National Alliance's ideology, what it has published, how it is perceived by the public and its influence on the public."

 In arguing against striking out portions of the B'nai Brith brief, including attachments of several of the League's  Annual Audit of Anti-Semitic Incidents, League lawyer Catherine Fawcett insisted: "The Audits show the impact of the hate speech on the Jewish community. This is not your typical application. The evidence is going to be a little different. We don't know about Mr. McCorkill but we do know of the impact of hate crimes on the Canadian Jewish community. ... B'nai Brith will also argue that no person can do something to injure the public. What is the effect when people put certain ideologies on the Internet? What injury could be done to the public, if this gift goes through? The Audits are the experience this minority group has experienced at the hands of hate groups. If you are putting money into the hands of this type of group, what is the potential effect on Canada."

 In fact, most of the incidents -- graffiti and literature for the most part -- reported in the Audits are the work of individuals, not groups. There is scant evidence most of them are motivated by material on the Internet. Few of the over 1,200 "incidents" reported annually result in criminal charges, much less convictions, and, thus, cannot be considered "crimes", let alone "hate crimes.” Furthermore, the gift is to a group in the U.S. which is no longer active in Canada and, thus, the "potential effect on Canada" would be exactly zero!

_________________________________________________________________________________________________________________________________________-__

 Please Help CAFE Defend Free Speech from Those Who Would Submit Beneficiaries to Some Politically Correct Litmus Test

Robert McCorkill died in 2004 and left a substantial collection of ancient coins and artifacts to the White Nationalist National Alliance. The ant-free speech U.S. partisan group called the Southern Poverty Law Centre has vowed to kibosh the bequest. Joining the hitherto silent -- for nine years! -- sister (who, though claiming straitened circumstances is represented by a pricey Moncton law firm) is the Attorney General of New Brunswick, the League for Human Rights of B'nai Brith and the Centre for Israel and Jewish Affairs, all seeking to overturn the will.

CAFE has joined the fray to support the Estate and the principles of free speech and private property. "Subjecting beneficiaries to a politically correct litmus test is a frightening assault on freedom of speech and the right of a person to bequeath his property to whom he pleases. It is a shocking step down the road the state tyranny and the triumph of restrictive cultural Marxism," warns CAFE Director Paul Fromm, who nonetheless welcomed the adjournment.

"They latest delay, gives CAFE a few more weeks to raise the money needed to fund our intervention in this crucial case," he added.

Time is of the essence. The case goes to Court November 13. . WE NEED YOUR HELP!
CAFE, Box 332, Rexdale, Ontario, M9W 5L3
__ Here’s my donation of ____to help CAFÉ's autumn programme, including the intervention in the McCorkill legacy case.
 __ Please renew my subscription for 2014  to the Free Speech Monitor ($15).
lease charge ______myVISA#______________________________________________________________________________________________________________

Expiry date: __________ Signature:________________________________________________________________________________________________________
 Name:________________________________________________________________________________________________________________________________
Address:______________________________________________________________________________________________________________________________
CAFE Director Paul Fromm with John  Hughes, lawyer for the McCorkill Estate,
and CAFE lawyer Andy Lodge

 

CAFE’s lawyer Andy lodge is seeking to strike large portions of the complainants’ affidavits because they do not comply with the rules. Most of the evidence is being submitted by affidavits (sworn statements). Marc Antoine-Chiasson, lawyer for Isabelle McCorkell [yes, different spelling from her brother’s name] decided to proceed by means of an application to the court, rather than a full blown trial with discoveries. Mr. Lodge explained: “There are very strict rules for affidavits in application cases because the application can be the end of the issue. An affidavit is assumed to be true. There are many paragraphs in the five affidavits that don’t comply with the rule.”

“Rule 390.01 sub 5” became a refrain as Mr. Lodge dissected some thirty paragraphs in five affidavits. The rule states: “An affidavit for use on an application shall be confined to the facts within the personal knowledge of the deponent; but the affidavit may contain statements as to the information and belief of the deponent with respect to facts which are not contentious, if the source of his information and his belief therein are specified in the affidavit.” [39.01(5)]

Indeed, in the case Bouctouche Micmac First Nation v New Brunswick (Minister of the Environment), Mr. Justice Rideout of the New Brunswick Court of Queen’s Bench Trial Division ruled, quoting a judgement by Mr. Justice Vancise of the Saskatchewan Court of Appeal: “The rule is quite clear in limiting affidavit evidence to such ‘facts as the witness is able of his own knowledge to prove.”

In defence of the Potok affidavit, Mr. Chiasson  ( Miss McCorkell’s lawyer) “seems to say facts asserted by the deponents are not contentious. We disagree. And in Miss Fawcett’s brief (on behalf of the intervener the League for Human Rights of B’nai Brith), I see no case law where hearsay evidence is permitted in an application setting.”

CAFE objected to the inclusion of several of B’nai Brith’s Annual Audit of Anti-Semitic Incidents on many grounds. One, was that none of the Audits even mentioned the National Alliance or its brief long-ago activities in Canada. Mr. Lodge added: “The Audits are mainly third party complaints. How can we analyze the motive of a fourth party, usually unnamed being complained against? These are not expert reports, these are not scientific reports. They are hearsay from people not even quoted but summarized.”

One of his main targets was an affidavit from Mark Potok of the Southern Poverty Law Centre. Much of it seemed more a rant and name calling than a statement of facts.  Mr. Lodge challenged most of the affidavit as being opinion, argument or hearsay. For instance, paragraph 5 of Mr. Potok’s first affidavit charges that the National Alliance “is the most important Neo-Nazi group in America.” That, Mr. Lodge, noted was an opinion, not a fact. Potok had patted himself on the back as being an “expert” on the National Alliance. That, too, is an opinion, not a fact.

Dominique  Fontaine, representing Isabelle McCorkell, said: “CAFE doesn’t like Mr. Potok’s evidence and is adopting a shotgun approach. We are seeking significant costs as this motion is not necessary and should have been brought as part of the application.”

“You can’t put a bunch of hearsay and opinions into your affidavit,” CAFE lawyer Andy Lodge shot back. “These are irregular affidavits. This is a fair motion and I take great offence at the accusation that it is not. We are the ones entitled to substantial costs. We have gone to tremendous expense to try to keep these affidavits focused on facts in keeping with Rule 30.01 (5).”

In outlining Miss McCorkel’s demand that the bequest be nullified, Ms Fontaine made it clear that the objections are based on the National Alliance’s political beliefs, saying: “We shall argue that this gift is contrary to public policy. The Court must know the National Alliance’s ideology, what it has published, how it is perceived by the public and its influence on the public.”

In arguing against striking out portions of the B’nai Brith brief, including attachments of several of the League’s  Annual Audit of Anti-Semitic Incidents, League lawyer Catherine Fawcett insisted: “The Audits show the impact of the hate speech on the Jewish community. This is not your typical application. The evidence is going to be a little different. We don’t know about Mr. McCorkill but we do know of the impact of hate crimes on the Canadian Jewish community. … B’nai Brith will also argue that no person can do something to injure the public. What is the effect when people put certain ideologies on the Internet? What injury could be done to the public, if this gift goes through? The Audits are the experience this minority group has experienced at the hands of hate groups. If you are putting money into the hands of this type of group, what is the potential effect on Canada.”

In fact, most of the incidents — graffiti and literature for the most part — reported in the Audits are the work of individuals, not groups. There is scant evidence most of them are motivated by material on the Internet. Few of the over 1,200 “incidents” reported annually result in criminal charges, much less convictions, and, thus, cannot be considered “crimes”, let alone “hate crimes.” Furthermore, the gift is to a group in the U.S. which is no longer active in Canada and, thus, the “potential effect on Canada” would be exactly zero!

_________________________________________________________________________________________________________________________________________-__

Please Help CAFE Defend Free Speech from Those Who Would Submit Beneficiaries to Some Politically Correct Litmus Test

 

Robert McCorkill died in 2004 and left a substantial collection of ancient coins and artifacts to the White Nationalist National Alliance. The ant-free speech U.S. partisan group called the Southern Poverty Law Centre has vowed to kibosh the bequest. Joining the hitherto silent — for nine years! — sister (who, though claiming straitened circumstances is represented by a pricey Moncton law firm) is the Attorney General of New Brunswick, the League for Human Rights of B’nai Brith and the Centre for Israel and Jewish Affairs, all seeking to overturn the will.

 

CAFE has joined the fray to support the Estate and the principles of free speech and private property. “Subjecting beneficiaries to a politically correct litmus test is a frightening assault on freedom of speech and the right of a person to bequeath his property to whom he pleases. It is a shocking step down the road the state tyranny and the triumph of restrictive cultural Marxism,” warns CAFE Director Paul Fromm, who nonetheless welcomed the adjournment.

 

“They latest delay, gives CAFE a few more weeks to raise the money needed to fund our intervention in this crucial case,” he added.

Time is of the essence. The case goes to Court November 13. . WE NEED YOUR HELP! CAFE, Box 332, Rexdale, Ontario, M9W 5L3 __   Here’s my donation of ____to help CAFÉ’s autumn programme, including  the   intervention in the McCorkill legacy case. __  Please renew my subscription for 2014  to the Free Speech Monitor ($15). lease charge ______myVISA#______________________________________________________________________________________________________________
Expiry date: __________ Signature:____________________
____________________________________________________________________________________ Name:________________________________________________________________________________________________________________________________ Address:______________________________________________________________________________________________________________________________