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 artifacts 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.
Please send your most generous contribution today.
My thanks, fellow free speech supporter,
CANADIAN ASSOCIATION FOR FREE EXPRESSION
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,
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CAFE Seeks Leave to Appeal McCorkill Decision to the Supreme Court of Canada: Free Speech, Freedom of Belief & Property Rights at Stake
KELOWNA, BC., August 25, 2015. Paul Fromm, Director of the Canadian Association for Free Expression announced today that CAFE had, instructed its lawyer Andy Lodge of St. John to seek leave from the Supreme Court of Canada to appeal against decision of the New Brunswick Court of Appeal nullifying the bequest of the late Robert McCorkill to the U.S. National Alliance.
“The July 30 decision by the Court of Appeals was dismissive and failed to deal with the substantive arguments and submissions both by CAFE’s lawyer and John Hughes, counsel for the executor of the estate. In the end, there was no legal precedent for scrutinizing the character of the recipient,” Mr. Fromm said. “This case is crucial for freedom of belief, freedom of speech and property rights,” Mr. Fromm added.
The Court of Appeals decision was short and uninformative.
The brief two paragraph decision concluded: “Having regard to the application judge’s comprehensive reasons and his determination that the bequest was void as it was against public policy, we can find no justification to interfere. We are in substantial agreement with the essential reasons of the application judge.”
The final paragraph then slapped CAFE with $3,000 in costs ($9,000 total) to each of the parties supporting the nullification of the will on the grounds it was against public policy.
The bequest was deemed “contrary to public policy” because of the politically incorrect ideas of the National Alliance, racial views which are entirely legal in the U.S. where the NA is headquartered.
“After extensive consultations with our supporters in Canada and the U.S., CAFE decided to take this very costly step and seek leave of the Supreme Court to appeal this horrific decision which stomps on free speech and property rights,” said Mr. Fromm.
The Supreme Court grants leave in about only 10 per cent of cases. “However, ” said Mr. Fromm, “this case is of national importance. Its opens the door to endless litigation whenever a bequest is made to a controversial person or organization. It nixes the right of a person to dispose of his property as he sees fit.”
“We were assured by the lawyer for the Attorney General of New Brunswick during the original application that this was a once in a lifetime decision.”
Yet, Mr. Fromm noted, just eight months later, in the Spence case, an Ontario judge tossed out a will where a Negro preacher disinherited a daughter who had a mixed-race child in favour of her sister who had adhered to her father’s racial views.
The executor for the estate is now appealing this decision.
“This is one of the most serious cases in which CAFE has ever been involved,” said Mr. Fromm. “However, freedom of belief, freedom of expression and property rights are on the line. In the words of Martin Luther, ‘Here I stand, I can do no other, so help me God. Amen.” (Hier stehe ich. Ich kann nicht anders.)
This appeal is a huge and costly undertaking. CAFE needs your support urgently.
CAFE, Box 332, Rexdale, Ontario, M9W 5L3
__ I believe property rights and the right of freedom of belief and freedom of expression are worth fighting for. Here’s my special donation of _____ to help CAFE appeal the nullification of the the McCorkill will’s bequest to the National Alliance to the Supreme Court of Canada.
__ Please renew my subscription for 2015 to the Free Speech Monitor ($15).
Please charge______ my VISA/Mastercard#___________________________________________________________________________
Expiry date: ______ Signature:_______________________________