06-06-2014, 04:14 AM
Join Date: Jul 2013
Rep Power: 30
Paul Fromm's response.
Quote: Originally Posted by Paul Fromm
New Brunswick Judge Deals Body Blow to Freedom of Belief and Right to Will Property
The past 24 hours have been violent ones in New Brunswick. A lone gunman, still on the run as of this writing, last evening shot and killed three members of the RCMP in Moncton and wounded two others. This morning Judge William T. Grant of the Court of Queen's Bench fired a double-barrelled blast into the guts of freedom of belief, freedom of speech and the right of a man to will his property to a group supportive of his beliefs.
With the swipe of a pen, he overturned a bequest to the White nationalist National Alliance in the will of the late professor of chemistry Robert McCorkill, who died in St. John in 2004. After the will had been probated in May, 2013, the anti-free speech Southern Poverty Law Centre objected and insisted the will should be voided as contrary to the public interest. The SPLC had no standing in Canada, but a long-estranged sister Isabelle McCorkell, although claiming poverty, found a pricey Moncton law firm that made an application on her behalf to nullify the bequest, variously estimated as between $250,000 and $1-million. She was joined by the Attorney General of New Brunswick, the Centre for Israel and Jewish Studies (CIJA), and the League for Human Rights of B'nai Brith as interveners.
The Canadian Association for Free Expression entered the fray in defence of free speech and the right of a man to will his property to the group or cause of his choice.
The application was heard in St. John in late January.
His judgement puts in peril any bequest to a group or maybe even a person whose views are deemed to be "contrary to public policy."
Judge Grant found: "The purposes of the National Alliance and the activities and communication which it undertakes to promote its purposes are both illegal in Canada and New Brunswick. Consequently, I declare the residual bequest to it in the will of Harry McCorkill to be void.
Judge Grant noted: "The respondent also submits that the writings of the NA were not in violation of any laws of the United States when they were published. However, they clearly violate the Criminal Code of Canada and this Court takes judicial notice of the fact that in this age of the Internet national boundaries are meaningless for the purposes of spreading hate propaganda such as that disseminated by the NA."
The ruling is breathtaking in its finding of guilt (of illegality and "hate propaganda") where no charges have ever been laid. The National Alliance operated in Canada for about a year in the early 2000s. It distributed literature and held small meetings. Yet, it was never charged much less convicted under Canada's notorious "hate law" or any other law.
Has a New Brunswick court taken us into Alice and Wonderland and the Court of the Red Queen: The verdict is "guilty"; no need for a trial; now on to the sentence!
The judge rejected arguments by CAFE's lawyer Andy Lodge that overturning the McCorkill bequest would lead to a flood of other such challenges to bequests to any group whose views might seem to be opposed to present government policy: "I, therefore, find that the voiding of a bequest based on the character of the beneficiary is, and will continue to be, an unusual remedy, where, as here, the beneficiary's raison d'etre is contrary to public policy, it is the appropriate remedy."
Despite the breezy assurance that voiding the will is only meant to get bad people -- the judge found the National Alliance's publications to be "racist, White supremacist and hate inspired, ... disgusting, repugnant and revolting" -- one wonders. Canada has abortion on the demand. That's public policy. Right to Life groups exist to enact laws to control or limit abortion. That's contrary to public policy. Would a bequest to them be voided? On a larger level, today's Green, NDP and Liberal Parties, to say nothing of the separatist Bloc Quebecois, advocate positions clearly contrary to many of the ruling government's public policies. Could bequests to them be ruled similarly illegal.
Indeed, isn't any political dissent over laws or legislation an expression "contrary to public policy?"
The ruling will significantly diminish the assets of the bequest. Most of the lawyers, however, will do handsomely: "Ms McCorkell is entitled to her costs on a solicitor and client basis from the Estate [and she will get whatever is left of the bequest.] Mr. Streed [the executor] is also entitled to his costs on a solicitor and client basis from the Estate. The Province has not requested costs and CAFE was not successful in its intervention. While the submissions of CIJA and B'nai Brith have both been helpful, their own purposes were also served by intervening. So, I will award them each a lump sum of $3,000 including disbursements to be paid out of the Estate."
An appeal of this judgement is being considered by the lawyer for the executor of the McCorkill Estate.