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

 

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!

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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.