Canadian Association for Free Expression
Rexdale, Ontario, M9W 5L3
Ph: 905-566-4455; FAX: 905-566-4820
Paul Fromm, B.Ed, M.A. Director
March 23, 2016
Dear Free Speech Supporter:
It’s nearly five months since last I wrote to you about CAFÉ’s ongoing battle to support free speech in Canada. You must check out our website CAFE | Dedicated to Free Speech, Immigration Reform, and Restoring Political Sanity. It is active and diligently maintained, despite frequent attacks to try to penetrate it and corrupt it.
Arthur Topham “Hate Case”: Win One, Lose One & The Important Question is Postponed
When I wrote you last, I was heading to the Arthur Topham and radicalpress.com “hate trial” in Quesnel, B.C. CAFÉ offered support, advice and public relations assistance. Most importantly, I did regular written and video reports on the most important “hate law” trial of this decade. Big thanks to Terry Tremaine for his assistance with the videos. The jury returned on November 12, with a confusing verdict. Arthur was convicted on one count of willfully promoting hate” against a privileged group (in this case, Jews) and acquitted on the other charge. The first referred to a series of books he had linked to or reproduced. Among them was a satire on the horrific genocidal Germany Must Perish by Theodore Kaufman, an American Jew. To highlight this evil work, Arthur copied the original cover and entitled it Israel Must Perish and through the first few chapters replaced Germany and Germans with Israel and Jews. Canadian juries don’t explain themselves, So, it is unclear which of the books they felt promoted hate. Arthur was acquitted on the second count which covered many of his postings and opinions in 2013.
All along, beginning with the late Doug Christie and continuing with Arthur’s present lawyer Barclay Johnson, the defence has sought to challenge the constitutionality of Sec. 319 (the notorious “hate law”) of the Criminal Code. The argument is that the context has changed since the Supreme Court upheld the law in Keegstra in 1990. Then, the law was ruled to be a justified restriction on freedom of speech. The context, however, was an Alberta high school teacher with a captive audience of students. The Internet is not a captive audience. Indeed, to see Arthur Topham’s writings or postings, one has to seek him out and make a number of deliberate selections. Will there be witnesses called for this hearing? That remains to be decided. Originally, a date was to be set in late January. That date-to-set-a-date has now been postponed to April 29. In several legal venues in the Terry Tremaine “hate law” case (dismissed for undue delay) and contempt of court cases, Doug Christie tried to argue that the Internet was not communication as defined by the law. Posting to a website is merely the storage of material. He who downloads the material, hence the complainant, initiates the communication. This argumentation was neatly avoided by judges in several venues and has still to be resolved. The case continues.
Hopeful News in the McCorkill Case: Chances Improve of Getting to the Supreme Court
Good news and bad news. CAFÉ’s chances of winning “leave” or acceptance of the Supreme Court to appeal the appalling decision of Mr. Justice Grant of the Court of Queen’s Bench in New Brunswick and upheld last July by the Court of Appeals of New Brunswick have vastly improved. That’s the good news. CAFÉ’s chances of being granted leave to appeal have improved. That’s the bad news because an appeal in ferociously expensive. Our appeal costs could soar to $60,000 and we are behind in our bills.
The McCorkill case is vital to freedom of speech, freedom of belief and property rights. Should a court be able to nullify a will or bequest because the recipient’s views are “contrary to public policy”? The late Robert McCorkill of St. John, New Brunswick was a professor of chemistry and left his sizable estate of old coins and rare artefacts to the U.S. White Nationalist group known as the National Alliance.
Professor McCorkill died in 2004. The estate was finally probated in 2013. Then, the Southern Poverty Law Center, a malicious group of U.S. censors who make a profitable business of spying on, exposing and legally harassing those they claim are “haters”, found out and raised a storm. The usual hysterical stuff: the bequest would revive the “Nazi” movement in the U.S. And, yes, there’d be a gas chamber on every other corner. The only problem was that the SPLC had no legal standing in Canada. However, the next thing we knew, Ottawa lawyer Richard Warman got into the act and declared that the bequest was “contrary to public policy.” At first, this seemed absurd. However, miraculously Isabel McCorkell [yes, different spelling], the long estranged sister of Robert McCorkill – she had not attended his funeral or challenged his will during the probate proceedings – surfaced. Interestingly, she lived in Ottawa. She sought and obtained an order to freeze the proceeds until she could make an application to have the will nullified on the grounds that it was … “contrary to public policy.” She was quickly joined in her endeavours by the Attorney General of New Brunswick, the League for Human Rights of B’nai Brith and the Centre for Israel and Jewish Affairs. At this point, CAFÉ sought and was granted intervener status. This is clearly a vital case on several levels. It is a case defending freedom of speech and freedom of belief. It is also upholding property rights. Should a judge be able to overturn the clear wishes of a testator? Should a person not be able to dispose of his property as he sees fit and not have the views or morals of his beneficiaries scrutinized by a judge?
Last September, CAFÉ sought leave to appeal to the Supreme Court of Canada. Only about one in 10 applications for leave are granted. The SCC seeks cases that have a national interest. Surely, some degree of certainty in estate law would constitute such a national interest. That was our argument. However, this argument was greatly strengthened recently by a decision of the Ontario Court of Appeals in the Spence case. Rev. Eric Spence was a Jamaican preacher who left all of his $400,000 estate to one daughter, whom he hadn’t seen in 30 years, and left nothing to Verolin, the daughter he’d raised and financed through university, because she’d had a child with a White man. In January, 2015, as we had predicted in our arguments before the Court of Queen’s Bench, the McCorkill decision would be the beginning of a flood of allegations. Verolin successfully had her father’s will nullified. Judge Cory. A Gilmore inveighed against
Spence’s “clearly stated racist principle” and declared that the will “not only offended human sensibilities but also public policy”. She then nullified the will as being “contrary to public policy.” BMO Trust, on behalf of the Spence Estate, appealed to the Ontario Court of Appeals. In a March 8 decision , the Ontario Court of Appeals overturned, Judge Gilmore’s decision, and reinstated the will’s provisions. This decision is immensely helpful should our case reach the Supreme Court.
And, there’s more. Now, there seems to be a contradiction between the Courts of Appeal in New Brunswick and Ontario; the former was quick to overturn the testator’s wishes as the recipient’s views were “contrary to public policy”; the Ontario court refused to overturn the will even though it did involve a degree of racial discrimination. Acting on behalf of Verolin Spence, Earl A. Cherniak advised Andy Lodge, CAFÉ’s lawyer: “Given the similarities of the issues to be decided on the application for leave to appeal in McCorkill and the issues we intend to raise in the Spence matter, we ask that the Panel considering the application for leave in McCorkill be advised that we will be seeking leave to appeal and will … be bringing a motion to expedite leave.” CAFÉ has agreed that the Spence appeal can be joined to ours, if the Court so wishes. This strengthens our chances of being granted leave.
This Spring will extremely expensive for CAFÉ. The issues of property rights and freedom of speech and belief are crucial. We need your help urgently! A tiny band of generous, loyal people like you have made this crucial battle possible thus far.
My thanks in advance,
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 which is now awaiting “leave” from the Supreme Court,
__ Here’s my donation of ____to help CAFÉ’s support the victims of state censorship, especially Arthur Topham.
__ Please renew my subscription for 2016 to the Free Speech Monitor ($15).
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