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.”
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Free Speech Takes A Thumping As Thought Control Forces Argue McCorkill Will Is “Against Public Policy”

Free Speech Takes A Thumping As Thought Control Forces Argue McCorkill Will Is “Against Public Policy”

ST.JOHN, NEW BRUNSWICK. January 27, 2014. “Where is the McCorkill case being heard?” I asked the court officer just before 9:30 this morning here in St. John.

“Courtroom 13,” he answered.

“Is this our lucky day?” I wondered.

The atmosphere inside Courtroom 13 was more frigid for freedom of thought than the bitter Maritime winter outside the courtroom. This morning lawyers argued that the will of the late Professor Robert McCorkill giving a bequest to the White Nationalist U.S.-based National Alliance be set aside. It was like an Anti-racist Action meeting with slogans of “neo-Nazi” “White supremacist” and “racist” snapping through the air in the Court of Queen’ Bench. There was a lot of “hate” in the air or, at least, how much certain people hate “hate.”

Moncton lawyer Marc-Antoine Chiasson led off the complainant’s case before Judge William T. Grant. He represents the long-estranged sister of the late Robert McCorkill who brought this current action to nullify the bequest. She turned up or was found after being silent during the nine years since her brother’s death, after the militantly anti-free speech U.S.-based Southern Poverty Law Centre (SPLC) found about about the bequest soon after the will was probated in May, 2013. The exceedingly well-funded SPLC, an arch enemy of the National Alliance, went on the warpath to stop the bequest. The only problem for them was that they have no legal standing in Canada. Ottawa lawyer Richard Warman was soon being quoted in the press commenting that the bequest should be nullified because I was contrary to public policy. Isabelle McCorkell [yes, different spelling] emerged and, although she claims to live on $1,000 a month hired a pricey Moncton law firm to obtain an ex-parte injunction freezing the assets of the will and then a further application to nullify the bequest. Piling in to support her were the Attorney General of New Brunswick , the League for Human Rights of B’nai Brith and the Centre for Israel and Jewish Affairs.

” This is an unusual case,” Mr. Chiasson noted. And then the smears and name-calling began: “The Court must decide whether it is acceptable or appropriate to leave a bequest to a White supremacist, neo-Nazi organization that wants to rid North America of Jews.”

“We should not be able to interfere with a will on a whim because we don’t like the beneficiary,” he added. [Then, why are we here? I wondered.]

However, he added, “there is a certain line that cannot be crossed, but the line has been crossed with the bequest to the National Alliance and we ask this Court to intervene.”

“The Court should intervene in very few cases,” he admitted. However, an exception should be made for “hate propaganda” and “hate groups.” He quote Mr.Justice Cory in the appeal to the Federal Court of Appeals in the Don Andrews “hate law case” back in the 1970s. The judge had said that “hate meant the instilling of detestation in others and does incalculable damage to the Canadian community.”

“Sec. 318 and 319 of the Criminal Code prohibit ‘hate propaganda’ and the promtion of genocide,” he added.

The three lawyers arguing for the application repeatedly demanded suppression of people and views their clients didn’t like. “Any group that promotes views contrary to the human rights codes is unacceptable,” Mr. Chiasson announced. “The International Convention for the Elimination of All Forms of Discrimination condemn all groups that promote the superiority of a race and the participation in or financing of such groups,” he added. [Did Canada or its Parliament knowingly sign on to such a mental straight jacket.]

“Multiculturalism and equality are the linchpins of the Charter of Rights and Freedoms,” he said. The Charter, it might be noted, for all its talk of “equality” grants special privileges to favoured minorities.

Paul Fromm being interviewed by Neville Crabbe of CBC News

So, he argued, “we have adopted the view that, in Canada, the propaganda of the National Alliance, the existence of the National Alliance and the financing of the National Alliance is contrary to public policy.” Mr. Chiasson professed himself outraged that the National Alliance believes in “the preservation of the White Race and racial separation.” Reading from the National Alliance’s 2005 Membership Handbook, he quoted the NA’s programme: “We must have White work spaces, White farms, White schools. … We want an environment where our own nature can express itself. We must root out Semitic and non-Aryan influences.”

Mr. Chiason equated White self-preservation with White Supremacy.

“We just can’t stop ideas at the border due to the power of the Internet,” he complained.

Apparently, dissenting in certain historical debates is against the law, at least in Mr. Chiasson’s submissions: “The National Alliance says ‘the holocaust is a myth’. This is hate speech and contrary to public policy.” He expressed further shock at a comment by the National Alliance: “We have a debt of gratitude to Adolf Hitler who was the greatest man of our era.” [One wonders whether we’d be in Court with a two volume record o fwell over 600 pages of submissions and exhibits if the National Alliance had hailed Joseph Stalin or Mao Tse Tung or even Pol Pot as the greatest man of our era.]

No evidence had been adduced of homicidal inclinations on the part of the NA, but, Mr. Chiasson concluded: “The sole purpose of the NA is promoting hate and killing non-Whites, its sole objective is to create White living space, and, thus, it offends public policy. The gift is illegal and against public policy and should be voided. Mr. McCorkill should be declared intestate and, therefore, my client and her brother would be the beneficiaries of the estate.”

Next up was Richard Williams of Fredericton, representing the Attorney General of New Brunswick. “|Our only interest in this matter is our belief that the bequest is illegal and contrary to public policy,” he said. A strong voice for repression, he declared: “The theme of the Charter and human rights codes is that racism will not be allowed in this country.” He professed himself upset at the notion of “White living space”, although he made no mention of native land claims or special lands for Indians or Eskimos.

He added “there is no redeeming merit” in the National Alliance. Attempting to answer an argument in CAFE’s brief that nullifying the McCorkill will could launch a flood of similar litigation, he concluded: “I never expect to have a case like this again in my career.”

The final presentation of the morning came on behalf of another intervener, the League for Human Rights of B’nai Brith. Representing B’nai Brith, Catherine Fawcett insisted: “The National Alliance has a presence in Canada and is well known to the League.” Whether the NA has actually committed acts of violence “doesn’t matter. They put out ideas that incite hate. Their membership is restricted to White people who support the objectives of the NA. [One wonders whether certain Jewish or Catholic groups might not similarly be restricted to adherents of their faith who support the group’s objectives.]

“What you read in their Handbook,” she charged, “is we will recruit and build infrastructure for final victory. But you must read between the lines. A further danger of the National Alliance is a video game they produced called Ethnic Cleansing,” she added. She didn’t explain what it was about.

“In the NA Handbook, they say: “The holocaust story in engineered by Jews or is full of exaggerations.’ This is contrary to Canadian values,” she insisted.

Elsewhere, the NA says that “AIDS has taken off undesireables among Whites — homosexuals, intravenous drug users, and those who have sex with non-Whites. That, M’lord, is hate.”

In a country that does not have a Second Amendment to protect the right to keep and bear arms, Miss Fawcett was very critical of the NA Handbook urging members to have weapons for the defence of their family or to join the state militia, if necessary. The Handbook recommended a riot gun, a military semi-automatic rifle, a handgun and at least 500 rounds of ammunition.

She took great exception to the NA saying: “The Aryan Race has the right to ensure its own survival and it must have a White living space including Europe, North America and the southern tip of Africa.”

NA Chairman Erich Gleibe in an affidavit “says the National Alliance has no programmes in Canada, but the effect of the National Alliance message is to corrupt people and turn a small receptive minority against multiculturalism. We can stop printed material at the border and we have ‘anti-hate’ legislation but the Internet can reach so many.”

Concluding, she said: “This Court has the power to strike down the testamentary gift to the National Alliance and stop it spreading its message of hate.”

The hearing continues tomorrow. — Paul Fromm