Testamentary Hate Speech?: McCorkill v. Streed, Executor of the Estate of Harry Robert McCorkill (aka McCorkell), Deceased

June 11, 2014 Hull & Hull LLP Litigation, Trustees, Uncategorized, Wills 0 Comments

In a recent decision handed down from the New Brunswick Queen’s Bench, Justice William T. Grant issued a rare judgment declaring a bequest contrary to public policy and/or illegal and therefore void.

Harry Robert McCorkill died on February 20, 2004.  His Last Will and Testament appointed a member of the National Alliance, a White Supremacist hate group based out of the United States, as Estate Trustee.  Harry left his entire Estate to the National Alliance.

The Attorney General of New Brunswick, the Center for Israel and Jewish Affairs, the League for Human Rights of B’Nai Brith Canada, and the Canadian Association for Free Expression (CAFE) all intervened.

At issue in the case was whether the “writings and other communications” of the National Alliance were “illegal and/or in violation of public policy” and if so, whether the court should declare the bequest invalid, “given that it is made to a beneficiary whose activities are contrary to public policy but not made for specific purposes.”

Justice Grant had little difficulty in determining the National Alliance had engaged in illegal activity. Hate speech is illegal in Canada under s. 319(2) of the Criminal Code, which forbids persons from wilfully promoting hatred against an identifiable group in public. It was clear from the evidence that the National Alliance’s activities were sufficient to meet this definition: “All of these publications can only be described as racist, white supremacist and hate-inspired. They are disgusting, repugnant and revolting.”

The more salient question was “whether or not the NA disseminates information that is in violation of public policy in Canada.” I have previously blogged about what conditions courts will find violate public policy here and Ian Hull has blogged about it here.  Justice Grant ruled that an activity which is prohibited under the Criminal code “falls squarely within the rubric of a public policy violation.”  The National Alliance’s activities also violated the

values set out in the Charter of Rights, provincial human rights legislation as well as the International Conventions which Canada has signed all of which promote the equality and the dignity of the person while prohibiting discrimination based on various grounds, including race and ethnic origin.

Usually, when a bequest is declared contrary to public policy or illegal, the bequest is made for a specific purpose. In general, a beneficiary cannot “stand for” something.  To use Justice Grant’s example, a bequest to a drug dealer is not contrary to public policy or illegal, because a drug dealer does not “stand for” dealing drugs.

Here, however, the National Alliance’s founding documents sufficiently evinced its purposes, which were to “promote white supremacy through the dissemination of propaganda which incites hatred of various identifiable groups which they deem to be non-white and therefore unworthy.”  This made the bequest both illegal and contrary to public policy and therefore void.

McCorkill v Streed is an interesting case.  Had this case been decided in the United States, it may have gone the other way.  Hate speech is not a crime in the United States, and the United States’ constitutional protection of freedom of expression is not limited by a provision like Canada’s Section 1 of the Charter of Rights and Freedoms. Though not binding in Ontario, McCorkill v Streed may stand for the uniquely Canadian proposition that a testator is not free to leave bequests to an organization where the evidence establishes that their purpose is hateful.

Suzana Popovic-Montag

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