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Canadian Judicial Council Submission

This is a collation of three tranches of submissions sent to the CJC in 2014. The fact that the CJC has never responded to it in a meaningful way, is in contravention of an explicit Statutory Act of the Canadian Parliament.   In my opinion this is a serious breach of the CJC's legal duty and a violation of my sovereign rights as a Canadian citizen and taxpayer.  As Martin Luther King said, "an injustice done to one, is an injustice down to all". 

The Submisssions:

I would like to lodge a formal complaint regarding the processes used in the following court cases:

Re:  Docket: PR09-01-81729

Indexed as: Hoffman v. Heinrichs

Cited as: 2012 MBQB 133

(Winnipeg Centre)

Presiding The Honourable Madam Justice Shawn D. Greenberg

The applicant’s case failed, Judgement against the applicant being delivered on May 2,2012  as did an appeal to the Court of Appeal of Manitoba in which judgement was delivered on July 2, 2013.

I offer these issues in a spirit of constructive criticism.  I have no personal prejudicial axe to grind against the Legal/Judicial world as in my 70 some years have had only positive experiences with the Court System.   My attempts to seek redress through the Chief Justice of Manitoba, The Honourable Glenn D. Joyal, the  Minister of Justice Manitoba,  Andrew Swan,  and the Premier of Manitoba  Gary Selinger, have proved unsatisfactory.  Perhaps the most ineffective was the bromides of Gord Mackintoh, self described as the “Forrest Gump of Manitoba politics."  He was renown for keeping his desk clear - glorious inaction .  In his farewell he could gormlessly tell us how much he enjoyed the good times, opening fetes and carnivals.  Someone needs to inform our elected representatives that they have a social and political responsibility to respond to our concerns in a meaningful way - they are there to act on community needs; not reflexively protect bureaucrats.

It was Manitoba’s Mental Health Act that moved us to contest the above case.  For years (2003 – 2009) our large extended Heinrichs family of about 56 nieces and nephews received annual statements of our Aunt Ann’s Financial accounts giving rise to expectations of becoming beneficiaries of her estate.  Upon her death, we were perplexed to find that instead of being dispersed to her 46 of her 56 surviving direct heirs, the sole benefactor was her twin brother (deceased) and then his youngest son, our youngest cousin Warren Heinrichs.  This appeared an extraordinarily suspicious circumstance.  In fact the Altona law firm who had dealt with her and Byron Heinrichs, advised us that in their opinion it should be contested on the assumption it was an open and shut case, - unlosable – a lay down misere.
 
I take it the legislation was enacted to lessen family disputes, however in this case it had the opposite effect.  The Court obviously has other ideas.  It is my impression that this case demonstrates how inappropriate the Court system is for resolving family disputes; the cruel irony is that, against its intended aim and purpose, it needlessly foments division and discord.

1)    The courts found, despite overwhelming substantive Medical, documentary and anecdotal evidence of severe Schizophrenia lasting continuously from the early fifties, that our Aunt Ann was merely “eccentric” and therefore had “testamentary capacity”. 


Scientific evidence disputes this. 

“Since it was first described by European psychiatrists in the late 19th century, schizophrenia has often been seen as the most fearsome of all mental illnesses.”

Despite the Court’s faith in the medication:  (Vol 6.  Pg. 11,  ll. 19 – 21.)

“Antipsychotic drugs may do more harm than good. The tide is turning towards gentler methods, from talking therapies to brain training”.

 Both quotes from The New Scientist, 06 February 2014 by Clare Wilson.

What was most galling was an apparent uncritical acceptance of All oral evidence from one side unreflectively and the dismissal of any substantive documentary evidence from the applicant’s.  It appears the court may have been romanced by the defendants.  A partisan is someone who supports one side of an argument, period.

We had higher expectations.   Like Caesar’s wife, we expect our Judges to be above reproach; scrupulously even-handed, non-partisan and scientific.

In Medieval times if you heard “voices”, your odds of becoming a prophet or having a new religion named after you were enhanced; nowadays you are simply diagnosed with schizophrenia and have to take your lithium.

The court attempts to portray Aunt Anne’s predicament in a benign light. It uncritically accepts the line that she was perfectly normal, loved nothing better than sitting around talking about her crops but may have been a bit “eccentric”.  No time constraints here.

[17] One cannot draw any conclusions regarding capacity simply from the fact that a person suffers schizophrenia, especially when the person is being treated. Whether Ann had testamentary capacity must be determined on the basis of the evidence as to her abilities at the time the will was executed.

What is ignored is Exhibit A, a Psychiatric Report by Dr. Gunther (December 17, 1979) addressed to Elsa Neufeld, daughter of Anne’s older sister Susan which clearly, clinically, unambiguously  and unequivocally diagnoses her condition as long standing Schizophrenia which little hope of betterment and most likely to get worse:

She had a previous admission here in 1970. She was a patient in Selkirk Mental Hospital in 1957. 

She had been followed at the Health Sciences Hospital until her husband died. She was discharged from our Centre to a nursing home in Altona.

This lady shows typical symptoms from a long standing schizophrenic illness. There is little that one can do for her.

…. About progress - I do not think that this can be expected. 

I think she shows the effects of long-time illness and I do not think that will change. It might perhaps get worse in time. With the tools we have at the present time I think this is about the best that can be expected.

It is noteworthy that the court ignores the addressee and the last two paragraphs; the entire argument of the court relies on a premise that somehow Aunt Anne made a miraculous “recovery” on October 20th 1980, woke up one morning, called her twin brother to drive her to Winnipeg to make out her Will so she could give him all her money.

Narrowing the frame of reference resulted in a lack of perspective with much of the supporting suppositions taken out of context.  There is a serious lack of curiosity in context, little conscientious or rigorous research to gain perspective.  Contrary and conflicting evidence was not tested, sometimes simply ignored, resulting in persistent error of facts. It appears long on baseless assumptions, airy assertions; short on probative evidence.   

1)    Vital information was suppressed due to the intimidation of a guileless eighty-five year old witness. 

The problem, as the Court acknowledges, in cases like this is that most of the central characters have died and the remaining have issues with the unreliability of memory.  Our star witness was an uneducated guileless 85 year old witness with the closest links to the main characters – our most dependable informed source.  But she was no match for clever legal tactics.

Normally cross-examination of a non-expert witness is a contest between a professional expert who is familiar with every detail of the case and a relatively unwary member of the public who is not.”   Judge Dyson Hayden critiquing former Prime Minister Julie Gillard for her polished performance during cross-examination.

Marie Dyck claims her testimony was rudely interrupted by the lawyer for the respondents a number of times to “rattle” or intimidate her.  I find this pugilistic practice absolutely abhorrent in a civil family court!  If she had been a hardened criminal or a recalcitrant amnesia-struck professional spiv,  it could be justified as attempting to get to the truth, but to do it to an elderly woman displays a cowardice of the lowest order; a desperate tactic to gain an unfair advantage by denying the truth – a bit of granny bashing – Elder abuse. In this case it merely resulted in stifling and suppressing the truth as Marie Dyck, as one of the few surviving relatives, most familiar with Aunt Anne and Uncle Jake’s era, and the most knowledgeable source of information left.  It cannot be condemned in too strong language. For any lawyer to stoop so low is disgraceful, despicable and unconscionable.  (Marie’s statement:  below (Appendix ll:  703 - 795)

It says a lot about the ethos of the Judicial process that the Court condoned this reprehensible ploy – more Judge Judy than Atticus Finch, - closer to the visceral than the cerebral.  If we are serious about stamping out bullying in our schools, military forces and work places, how can we tolerate such thuggish behaviour in our court system, which I believe should be committed to searching for the truth. 

The Hearing Rule

This rule requires that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker. 

1)  To ensure that these rights are respected, the deciding authority must give both the opportunity to prepare and present evidence and to respond to arguments presenting by the opposite side.   

2)    I appreciate the invidious position of a judge in contest of family narratives - of vested interests in which power rather than quaint notions of truth and logic determine the victor. A recent Australian Family Court Judge observed that witnesses often tell lies; duh! Who’d have thought! 

Competing narratives require the wisdom of Solomon to distinguish between myth and fact. However, to avoid treading on sacred memories, requires the delicate precision touch of a surgeon’s scalpel; not the blunt side of an axe.

Reading through the transcript I was struck by how much of the evidence suffered from confusion due to the unreliability of memory. Much of it is contradictory and conflicting, yet little attempt was made to establish the facts.  Inconsistencies occurred when only the Applicant’s side was held to account for its confusion over dates and times. 

From my perspective, there was a concerted effort to mythologise and deify the Defendant’s; and discredit and demonise the Applicant’s – and I am not even paranoid – though I do have a forensic psychiatrist’s diagnosis of a PTSD with an associated OCD in regards to the denial of justice.

3)    The central premise (repeated at least four times)  that Aunt Anne was close to her twin brother and did not have a close relationship with her older siblings is a fiction. It begins as a fanciful and speculative notion and becomes inexplicably transformed by mere dogmatic assertion and spell binding repetition.   There is a towering mountain of evidence that refutes the former and similar amount to indicate the involvement of care she received from all of her siblings and extended family throughout her life. 

This speculative premise is conceived in a rumination by the Court in the transcript: Vol. 6 pg. 38, ll. 29 – Pg. 39, ll 1 – 5.

“….In view of the evidence as to how close she was with her twin, that he’s a logical beneficiary, …. Some of her siblings she really wasn’t like a sibling to. Her oldest one probably wouldn’t even been living at home when she was born, I think there was, like, 15 years difference in something like that, probably never knew her as a sibling  kind of relationship….”

The language gives the game away – “really”, “probably”, “wouldn’t, “I think”.  This could be regarded as “adroit plucking evidence out of thin air”.

I really expected more judicial awareness of complex family dynamics, especially in large quasi-cross generational ones.  What are the pre-requisites for a Family Court judge?  Do they need to demonstrate any elementary understanding of how various families interact?

Not only does this tread on sacred family memories – it tramples and stomps on them!   Representatives from six families spent six years researching, collating and documenting our family stories; the Court spends six days reconstructing or distorting them.

The final court judgement appears to me to be a verbatim “copy and paste” job from the Defendant’s lawyer’s summing up.  Not content with reducing its stature to that of a debating adjudicator or theatre critic, it aspires to be a slavish stenographer for the respondent’s cause.  All inconvenient conflicting evidence is simply routinely discredited, disregarded or suppressed.

I appreciate the difficulty an outsider has comprehending the book, Exhibit 15, The Heinrichs of Halbstadt – 1896 – 1993,  however, had the Court had shown a more inquiring mind and enthusiasm for gathering all the facts of the case, these false assumptions would never have seen the light of day.  As Orwell said, “truth is often hard to find, but it becomes easier if you are actually looking for it.”

Much of the following information was available in Exhibit 15, The Heinrichs of Halbstadt – 1896 – 1993.   

During Aunt Anne’s youth, 1920’s and 30’s,  Halbstadt was a closely knit, insular and parochial Mennonite community (almost a village) where families shared houses , schools, churches and most social activities.  Conclusive primary, secondary and tertiary evidence 1 demonstrates not only that she was very close to a number of her peer group nieces and nephews, but also extremely close to her sisters Helen Hoffman, Susanna Klassen and Marie Siemens.  As with many of her older nieces and nephews there is compelling and conclusive evidence of enduring “close bonds” with a lot of them including, Irene and Viola Siemens,  Anita Hoffman, Anna, Henrietta and Marie Klassen.

1Personal letters of Aunt  Anne, submissions by peer group relatives, recorded anecdotal reminisces of those close to her, a recorded interview of Uncle Jake…….

When the twins were born  in 1919, their mother 40, and my mother, Susanna, and her older sister Marie were 17 and 19 respectively.  Both eagerly assumed the role of carers or surrogate mothers for Uncle Jake and Aunt Anne.  In large quasi cross generational families, pre-conscious bonds develop between young children with their older carer siblings similar to maternal ones.  My Mother, Susanna, told us how she minded the twins and when she married my father they spent the first nine months living in the Maternal home, the baby twins  sleeping in their room, to give their Mother a rest.  There are no closer enduring bonds forged than that.

In contrast, bonds to your peer siblings in large families are much more complicated and conflicted by rivalry for attention and other fractious issues.  This explains why her sisters Helen, Susan and Marie were so heavily engaged in the lives of both Uncle Jake and Aunt Anne throughout their lives. (Evidenced in the transcript of the taped interview requested by Uncle Jake:  There is also clear evidence of the twins tempestuous and distant relationship.

Pg 13 ll. 9 – 10,   Uncle Jake professes his admiration for  J.J. and  Marie Siemens – their older sister by 19 years.

Pg. 24 ll. 16 – 24,   Uncle Jake’s high regard for the families of their sisters Marie, Susan and Helen

Pg. 27, ll. 10 – 20,   His respect for Susanna’s husband, D.D. Klassen

Pg. 28 11. 17 –  ditto

Pg. 29 ll  4 - 19.     Uncle Jake’s misgivings about inheriting the family farm.  Upon our grandmother’s death in 1949, in order for the land to stay in the family, it was willed to the four youngest; Aunt Helen, Uncle Ben and the twins, Uncle Jake and Aunt Anne.  While there was some disquiet about this, most of it stemmed from the guilt by the younger members.

 N.B.   Pg. 35 ll. 17 – 25.   His close “bond” to his older siblings.

It also explains the tensions in Jake and Anne’s relationships.

Pg. 10  ll 5 – 25 – Pg 11 ll 16 – 25, Pg 12 ll  1 – 5   He only goes to visit his sister if she needs to sign a cheque.  They have no close connections.

The accident:  Pg. 40 ll 17 – 25,  Pg 41  ll 1 – 18  He and Anne never talk about the accidental death of their father even though both feel some guilt over the cause of it.

Uncle Jake breaks down whenever he talks about his twin sister.  He feels his brutal and demeaning disciplining of her so shortly after their father’s death may be the cause for her life-long trauma and schizophrenia, yet he is unable to broach the subject with her.

When the time came for Susan and Marie to devote their time to their own families, Helen, at 16, readily took her place as a surrogate mother figure.  There is ample substantive evidence that there were enduring “close bonds” between Aunt Ann and her three older sisters.  She was also very close to her older brother by six years, our uncle Ben.

There is documentary evidence that throughout the fifties and sixties, Marie Siemens, living in Winnipeg, was the first port of call whenever Aunt Anne required family support.
In 1957, Aunt Anne’s neighbours called the police because she was wandering the streets in the nude for which was committed to Selkirk Mental Hospital.  It was Aunt Marie Siemens who was called upon then and several times throughout the sixties to support Aunt Anne.  When Aunt Maire died in 1969, the baton was passed on to Susanna Klassen.  A letter to Kathy Martens on sabbatical in Germany, written on 11 December 1974 corroborates this fact.

Susanna, our mother, writes:
 
"I feel we will have a bar (maybe meaning "bare") Christmas. It feels 
empty to go to Winnipeg.. Bill is very busy. My sister Anne has been 
sick so we went their sever(al) times." (Or seven?)

(Our mother’s mother tongue was German)

When Fred Ogilvie died, Uncle Ben, living in Winnipeg took charge and after the funeral, it was my Mother, Susanna Klassen, Aunt Anne’s older sister (by 17 years), who  determined Aunt Anne could not take care of herself and took into her home in  Carman for a week.   My Mother, 77 years old, suffering from severe osteoarthritis, found it too much of a burden so Aunt Anne moved back to Uncle Ben’s in Winnipeg, for two weeks and then Uncle Jake and Mary’s in Halbstadt, briefly before being admitted to Ebenezer Home in Altona in January 1980.   On her first night she was discovered attempting to smother another resident with her pillow so she was committed to Eden Mental Health Care Center in Winkler for six weeks.

From personal memory I recall my mother and father visiting both Uncle Jake and Aunt Anne frequently and my mother’s deep abiding concern for both. 

Further, my deceased older sisters, Anna and Henrietta, who were very close in age and interests to Aunt Anne, had longstanding close relationships; visiting her frequently.  I phoned Henrietta regularly and she kept me well informed about family matters including Aunt Anne Ogilvie.

In late 1969, our brother William (Bill), after twenty years studying and teaching in America, returned to Winnipeg to take up a position at the University of Manitoba,.  Bill would have been eight years old when our family moved from Halbstadt to Homewood and admitted being  enamoured by his vibrant beautiful Aunt Anne only 11 years his senior. Let us consider his later impressions in the early 1970’s:

In retrospect, who can say what we owe to whom? What indeed is our heritage? Mother’s care for her brothers and sisters was always very deep. She welcomed them as visitors and always spoke highly of them.

I especially remember Uncle Fred Ogilvie and how much Mother and Father spoke in appreciation of him even though we all knew he was not a Mennonite. I recall his visit to the University of Manitoba when I was teaching there and his encouragement he gave me then of the work I was doing. He appreciated the value of teaching religion outside of a church setting. I would like to ask Aunt Anne many questions. She carries many secrets.

Exhibit 15:  Heinrichs of Halbstadt:  MEMORIES OF CHILDHOOD (Page 36) Submitted by William Klassen   (H. of H. ll. 64 – 90).

The Appeal

Citation: Hoffman v. Heinrichs, 2013 MBC A 63 Date: 20130702

Docket: A I 12-30-07832

IN TH E COURT OF APPEAL OF MANITOBA

Coram: Mr. Justice Alan D. Maclnnes

Mr. Justice Marc M . Monnin

Mr. Justice William J. Burnett

4)    It is my contention that the Appeals Court failed to adequately examine points that were in dispute in the original case resulting in persistent errors of fact.  The  Appeal, lacking due diligence, rubber stamped the verdict, compounding unexamined, conflicting errors of fact and airily asserting that all was in order and the reasoning sound.

The claim made by Coram: Mr. Justice Alan D. Maclnnes of the appeals Court that:

Ann's husband died December 16, 1978. She went immediately to

live with Jake and his family until January 15, 1979, when she became

hospitalized.

Is factually inaccurate.  

The fact that one side claims it to be the case but it is refuted in the testimony of Susanna Klassen means it needs to be tested and validated. (Vol. 5, Pg. 3 ll. 25 – 30 & Pg. 6 ll. 9 + 10)   (See ll. 183 – 188,  above)

It is noteworthy that Susanna Klassen’s evidence does not feature in the “Reasons for the Decision”.  It is not clear whether it is because she is a psychiatric nurse or because she had the temerity to move to Toronto in 1961. Perhaps it contained an inconvenient assertion.

This claim needs to be verified to become established.  It is highly irresponsible for any court official to make any assertion on a contentious issue, injurious to either party, that cannot be supported or sustained by substantive evidence.

Further, It is my contention this is a failure of due process and in my opinion, gross negligence therefore, with respect, subject to possible censure for malfeasance.
Due to a craven acceptance, a low level tolerance of corruption and a culture of impunity towards such actions, very unfortunately, it's been a tradition in Western Democracies that responsible, government officials or Judges, have not been effectively prosecuted or bought to a fair trial even though it is patently obvious they have breached their professed codes of practice. 

[4] Ann was one of nine siblings. One of them, born 20 years before

Ann , died at the age of three in 1900. She and Jake were several years

younger than the other six siblings. They grew up on a farm in Halbstadt,

Manitoba and had a very close relationship throughout their entire lives.

Ann did not have a close relationship with her other siblings.

The exclusive “close bond” motif is a trite fanciful fiction – used at least four times to bolster lame arguments - it has never been established.  It can be easily disproven.

The statement that Anne did not have a close relationship with her other siblings is recklessly unsourced, unfounded and unsustainable.

[18]  Following receipt of the evidence and submissions of counsel, the

trial judge reserved her decision and thereafter wrote a thorough and well-

reasoned judgment.

With due respect I would submit that this is a blithe sweeping uncritical and airy conclusion.  The family has a more disobliging view based on broader perspectives and contextual experience of the family narrative.  As indicated above, I believe the arguments to be forced, contrived and disingenuous.

I find it particularly deeply disturbing that a court can so cavalierly suppress, ignore, disregard ALL evidence from one side of the case and then trot out the old “balance of probabilities” mantra. To my mind this is professionally, intellectually and morally dishonest.  Despite the fact that all the oral evidence had serious flaws in it, all of the defendant’s evidence appears to be accepted at face value, uncritically, while in each of the Applicant’s case it is dismissed on specious or spurious grounds. 

5)    It is also my perception that there was a high degree of hostility towards the applicant’s themselves.  This is clearly evident in a number of instances:

a)    [43] On the other hand, while I believe that Rudy Hoffman and the relatives who testified in opposition to the will were attempting to be honest, with the exception of Anita Braun, they had little to do with their aunt, especially around the time the will was executed, and can provide little insight into her mental   state at that time. I note that Warren Heinrichs testified that he had never met Rudy Hoffman before this litigation was commenced.

We were merely “attempting to be honest”!  We had little to do with their Aunt?   Are we in a fact free zone?  Utterly and knowingly false!  A recurring thread that has no basis of fact and yet forms the basis for most of the findings. 

The constant theme that we had little to do with our aunt is so far from the truth to be a vexatious imputation.  The court allows any inconvenient evidence to merely slip under the radar.  The Psychiatrist report was addressed to Elsa Neufeld, a niece 13 years younger than Aunt Anne.  The Court acknowledges that Marie Dyck visited her regularly.  The book, Exhibit 15, Heinrichs of Halbstadt contain more than 4000 words written by or about Aunt Anne, mostly by families of her older sisters, full of evidence of our visits and of enduring care from all her siblings.  Again the fact that this assumption forms the basis of many of the conclusions places them all in great doubt. 

The fact that Warren had never met Rudy Hoffman could be seen as much a reflection on Warren as of Rudy Hoffman due to an age difference. A more relevant question would be had Warren ever met Viola Siemens? Irene Siemens?  Anna Klassen?  Henrietta Klassen? ….. all of whom had a prior claim due to long term enduring relationships with Aunt Anne and are represented by Rudy Hoffman.  The fact that Bryon Heinrichs didn’t know Marie Dyck indicates they may be the insular ones.

Rudy Hoffman, having had the most experience dealing with professional financial matters, offered selflessly to represent 48 concerned relatives and is due a bit more respect and consideration.  Rudy might identify with LADY MACDUFF:


I have done no harm. But I remember now

I am in this earthly world; where to do harm
Is often laudable, to do good sometime
Accounted dangerous folly:   MACBETH

This is perhaps the most disingenuous argument of the Court. It is engaging in a form of casuistry - "misleading and deceptive conduct" .  It must be aware that Rudy Hoffman is merely a nominal voluntary spokesperson – a proxy for up to 56 direct nephews and nieces, yet the Court attempts to disparage his selfless efforts as if it is a direct conflict between two people..  Rudy in his wisdom extended the claimants to all descendants including the deceased estates because it is this peer group, living at the time of the signing, who have a preeminent claim to the will and the most deserving.

This uncalled for disparagement of the applicants indicates to me a perverse alignment of the court  – it more than anything is a dead give-away of a tendentious line of reasoning.  If the court is presenting “tedious arguments of insidious intent” to purposefully mislead and deceive, then serious questions need to be asked about the motives.  It is an adversarial tactic, not worthy of the Court.  An apt analogy would be a soccer referee, not content with making home town decisions, but actually taking the ball and having a free shot on goal.

Rather than seeing us as inclusive legitimate pursuers of equity and justice, we are depicted as mercenary or venial - low level rent-seekers or high flying gold diggers. 

This early unwarranted and clearly sustained attempt to discredit the claimants throughout the judgement could be seen as what Evan Whitton calls the Magic tricks.  Known variously as Ad Hominem,  poisoning the well or attacking the person rather than the argument – playing the man not the ball…., it is a classic ploy in debating contests.  As Mark Twain phrased it, “If they can’t find a flaw in your arguments, they will look for a flaw in your character.”

It is one of the oldest tricks in the book for winning arguments – already clearly identified and widely discredited from Greek and Roman times.

Finding dark motives is the stock-in-trade of advocates attempting to smear their adversaries. It's easy work. Slamming your opponent's motives means you don't have to grapple with facts; you don't have to answer arguments; you don't have to do any home work; and you can't be disproved.  In this environment, those taking a contrary (or even a more nuanced) view quickly become "damaged goods", reputations are undermined and the information that informs judicial understanding diminished.  Here it becomes one of the clearest indicators that rather than being a disinterested arbiter, the court is an engaged participant in the arguments. 

The unwarranted, unjustifiable, indefensible and irredeemably prejudicial attack on the applicant’s motives is also a prime example of “white is black” casuistry.  36 out of the surviving 46 descendants of Wilhelm Heinrichs signed up to challenge the will and include all of the deceased estates, yet this is somehow depicted as being venial - of doubtful honesty:

This represents an egregious distortion of the truth, an assault on all the applicant’s integrity, and a deceit perpetrated upon the well established and documented narrative of the family.

This is unworthy of any Judge who should be held to a higher standard.

In contrast, Bryon Heinrichs contributed a chapter on the Heinrichs Family for the 125th Anniversary of the founding of Halbstadt in which Aunt Anne did not even rate a mention.  Where is the evidence of a “close bond”?  Further Bryon, who has benefitted as committee and on her death, with unseemly haste, made an offer for the land at an inordinately favourable price.  It was only the action of another cousin who put in a bid at a more realistic market value price that thwarted this.  Yet, now he has it all – yet the court depicts him as altruistic.

To maintain family harmony, Warren could have easily acceded to his lawyer’s advice by simply agreeing to pay all court costs, but excessive greed prevailed.

The Manitoba Mental Health Act was ostensibly instituted to prevent family disputes, but the Court appears intent on instigating and exacerbating a family feud.

b)    [65]  According to the evidence, Jake did try to get her to spend money on  herself by encouraging her to buy new clothes or to get her hair done, but she was not interested in doing so. As I said, the evidence is that Ann was always a strong-willed individual. If Jake could not convince her to buy a dress for herself, it would be hard to believe he could get her to leave her estate to him!
 

What is even MORE telling is how easy it is to misconstrue evidence if you deliberately fail to grasp the whole picture.  Those of us who know the whole story derive just the opposite conclusions from the fact that Jake “tried to convince” her to buy a dress. 

On the matter of her appearance, it is interesting to note that in her youth, Aunt Anne was renowned for her “smart dress sense, dark suits, white blouses, dress shoes and well cut, simple hair styles. By the early fifties her medical condition was detectable, by the sixties obvious, by the seventies unavoidable and by 1980 she was virtually comatose.  She was one of the first Heinrichs women to study Year 12 at the MCI and an extremely attractive and popular student. Exhibit 15 (Heinrichs of Halbstadt – H.of H)

There is concrete evidence that Uncle Jake, immediately following their father’s tragic death in 1938, as the only man of the house, felt the need to assume the role of guardian and admits that one of his first acts of authority was to physically discipline her for “recklessly” spending too much money for clothes at Eaton’s.  He felt he had to “rein her in”.   The Mennonite tradition was for women to dress modestly without ostentation. (Kathy Martens interview)

Following an unhappy marriage, she became less concerned about her appearance, in fact often went stark naked, perhaps to demonstrate that when we are totally naked, we are most honest and most vulnerable, unable to hide the truth about ourselves. (As a precautionary measure, whenever we visited, Mother insisted we stay in the car until she checked to see if Aunt  Anne was appropriately dressed).  At other times she would wear two clashing dresses.  Her earlier stylish dress sense had lured the wrong type of men and so she became disillusioned with dressing to attract attention.

In the light of Uncle Jake’s earlier attempts to “rein her in”; his later attempts to motivate her to buy a dress were merely a compensatory sign of expiation or contrition for his former “harsh treatment”. Uncle Jake’s belated attempts to motivate her to buy dresses could easily be construed as a guilt trip, attempting to make up for the damage his earlier actions may have caused her.

In a visit in 1962, she complained to me a number of times that she “had no money”.  Aunt Anne was renown for resisting buying anything for herself, including shoes, clothing or personal needs. On a trip to visit a Chiropractor, Kathy Martens asked Aunt Anne if she wanted an ice cream which was emphatically declined due to her conditioned frugality.  People of sound mind, spend their inheritance; she seemed blissfully unaware of the extent of her assets.

6)    Another perceived Judicial overreach is the conclusion that on October 20th 1980, our Aunt Ann on her own volition decided to go to Winnipeg to make out her Will.

This is an astonishing proposition. There is evidence she did not like to travel. She had never had a Will before.  It was totally out of character.  A perplexing question must be why Uncle Jake drove all the way to Winnipeg to furtively formulate a Will for his sister.    (Ray Siemens )   Why not do it in Altona?   Was it to avoid local speculation?   Why was it stored in Saskatchewan?  Why were no other siblings consulted? 

But we are assured these are not suspicious circumstances.

At this time he has four siblings actively engaged in caring for his twin sister, yet he fails to consult them before embarking on this course.  He also fails to inform any of his siblings until at least 5  years later when his misgivings are finally expressed to his sister Susan and a niece (Marie Dyck).  Could this arouse suspicions?

As Uncle Jake was widely active in the Co-op movement, on the board of his Credit Union and closely engaged in other official positions at high levels in Winnipeg, it is conceivable that he had connections and may have known Laurie Shapiro.  Had it been signed in Altona it may have raised serious questions of propriety.

The revelation that neither Laurie Shapiro nor Gary Ingalamells, officials with The Cooperative Trust, were aware that Anne Ogilvie was suffering with schizophrenia is astonishing!  I find this intriguing. It is inconceivable that neither could remember her - or describe what she looked like. This too is astounding!   Schizophrenics have few defence mechanisms. As a pre teenager I detected it as it was patently obvious from the early fifties and by 1980, her appearance would have left an indelible impression.  Had they actually met her, alarm bells would have gone off and ambulances called for.  I last visited her in January 1981, four months after the Will was putatively signed and found her virtually comatose compared to an interested Aunt in the sixties.  She dimly acknowledged my parents but took no notice of me, my wife or our three young boys.  It raises the real possibility that they never met her; there was another person posing as her.

There is substantive evidence that Aunt Ann was a generous inclusive individual in (Irene Siemens) illuminating portrayal from The Heinrichs of Halbstadt:  Pg. 4  ll. 142 – 147.

She was an extremely generous person. If you admired her teapot she would want to give it to you, so I had to be careful what I said. I found her to be very fond of children and took a great interest in all her nieces and nephews. When we moved to Calgary, Anne and Fred and I took the chairlift to the top of Mount Norquay. She enjoyed our three toddlers very much.

It would be out of character for Aunt Anne to exclude her caring siblings and nieces and nephews with whom she shared long standing real and meaningful relationships with - if she had been of a sound mind.

Despite the Court’s assurances of the lack of suspicious circumstances I fail to be convinced.
The entire judgement is Sisyphean; an uphill laborious, forced and contrived argument; against the spirit and intent of the Manitoba Health Act, against reason, against common sense, against reality, against our cultural traditions, against our family traditions, against her inherent character and thus, self evidently: against natural justice. 

The default position is surely a more inclusive equitable dispensing. 

If it is not facts, what does informs this verdict?  I have a distinct impression that there is an ulterior small time political agenda driving the Judgement. 

There are three possible explanations for this counter intuitive judgement.  The undisclosed connection between The Honourable Justice and Laurie Shapiro – which may be unavoidable,  an attempt to make an example of our lawyer for leaving his original law firm, or  was it a lack of basic Judicial knowledge of the elementary demands of a representative or a simplistic view of family dynamics?  Perhaps a combination of all three? 

I find the case utterly unfathomable. Whatever it was, this judgement does not engage with established facts.  The portrait of our Aunt, as depicted here, bears little resemblance to reality and is unrecognisable by anyone who actually knew her.  Our well documented family narrative has gone through some contextless churning; become distorted and fully reconstructed without due diligence.  We appreciate outsider’s perspectives; only demand rigorous methods of grounded research to make them credible.

To restore our faith, confidence and trust in our court system, this case must be re-examined and both courts need to answer serious questions regarding the fulfilment of their codes of conduct.  If found wanting, they; need to be held to account.

Some gratuitous random thoughts:

Richard Ackland claims, “one of the enduring qualities for which the law is justly famous – clinging tenaciously to a belief in the face of overwhelming evidence to the contrary”.

New York Times columnist Paul Krugman; research indicates that facts not only don’t win arguments, they make people on the wrong side dig in even deeper: "When your deepest convictions are challenged by contradictory evidence, your beliefs get stronger."

Experiments, conducted by Yale law school professor Dan Kahan, about the impact of precepts on people’s ability to think clearly concludes that partisanship "can even undermine our very basic reasoning skills ....  We want to believe we’re rational, but reason turns out to be the ex post facto way we rationalize what our emotions already want to believe."

Bullying appears to be a main factor in the atmosphere of our adversarial Court System.  Many writers attribute this to our adversarial combative system of Justice.  While we like to believe it came from lofty Greek, Hebraic and Roman ideals, British Justice has more primal and barbaric origins.  From 1215, disputes were settled under the yoke of an adversarial system that relies on combat – originally physical (duels were legal until the 19th century). Trial by Ordeal was fashionable as late as the 16th Century, and now psychological and linguistic gladiatorial contests.  “Might  triumphs over right”.    If they have been doing it for 800 years, why change now?

As in most contests, truth becomes the first casualty. 

“The system has been created by the Legal/Judicial Cartel and surprise! Surprise!, it works in their interest; to provide maximum billable hours and maintain their status in the upper echelons of society.  Controlling evidence is the system's most protected entitlement but has the most potential for distorting cases.”  (Evan Whitton) "

“The truth, the whole truth and nothing but the truth" is a high sounding pious platitude "more honoured in the breach than the observance".

I do firmly believe that ideally our Justice system can work in favour of an harmonious society when it is scrupulously objective as Blaise Pascal phrased it:

“Justice and power must be brought together, so that whatever is just, may be powerful, and whatever is powerful, may be just.” 

I thank you for your patience and await your considered response.

 Charles Klassen,  1 Harold Avenue, Pennant Hills, (Sydney) NSW, Australia. 

Phone:  612 9945 1245   or Cell phone +612 412 055 828

Appendix 1:   Some glaring excerpts from the transcripts of the Case.

The courts have made a critical issue of what happened to Aunt Anne on the death of her husband, Fred Ogilvie on 16th December, 1978 until she was hospitalised in Eden Mental Hospital Winkler on 15th of January 1979 to the 6th March 1979, when she was admitted to Ebenezer Home for the Aged in Altona.   Time period – 30 days – just over 4 weeks.

They claim Aunt Anne went immediately to live with her twin brother, Uncle Jake.  We have material evidence that she first went to her sister Susanna in Carman, then two weeks to her brother Uncle Ben in Winnipeg, and then about a week to Uncle Jake’s before being admitted to Eden Mental Health for assessment.

Despite the fact that Aunt Ann had been diagnosed with Schizophrenia from about the early 1950’s, admitted to Selkirk Mental Institution in 1957, Eden Mental Health Centre in 1970 and again in 1979 and 1990, as well as being a continuous outpatient of Winnipeg Health Sciences,    the Jake Heinrichs family claim there was nothing wrong with her.  It appears a highly cultivated line, nebulous, unsupportable and unsustainable.

Here are the various bald assertions:

Byron Heinrichs testimony:  Vol. 1

“My aunt lived at my Mom and Dad’s for three weeks” 

..”I had occasion to be in the house at that time”…. (Vol I  pg 16 – 17)

She went directly to Ebenezer Home in Altona”    Pg. 18. (Reality: She was admitted to Eden Mental Health Clinic.)

My father took care of his sister entirely, totally…”   Pg. 25.

Reality:  Documentary evidence does not support this assertion; it is a myth creation.

Lorraine  Marie Plett’s testimony:

“Immediately I believe she went to my, my Dad and mother’s house, her brother. For three weeks.    Vol. I  pg. 79.

Cross examination:

Q: Can you tell us who was living in the home at the time?

A:  “To my knowledge  it was my mother, my father, and her.

Q: …Did you visit her in Ebenezer Personal Care Home in 1979? …

A:  ..Yes, at least once a month, it was easy, because my parents lived in the same town….

Lorraine appears to make the same mistake made by Marie Dyck, in that Uncle Jake and Aunt Mary do not move to Altona until after 1982.  However, Marie Dyck’s apparent confusion is not the time or place, rather the fact that no one (except Ray Siemens) knew in 1985 that any Will had been framed.  Marie assumed he had done it that day in 1985.

Q:  Had Warren already left home? 

A:  “No, but he was in university at the time and he had an apartment in Winnipeg”  Pg. 87.

The impression created by the court and Warren is that he was at home during this time.

The court states: “Nor is it surprising that she chose Warren as her alternate beneficiary. He was Jake's youngest son and was still living at home and farming with his father when the will was executed.”  (61)

Under cross examination:   (Vol. I,  Pg. 96)

Q: …about the relationship between your aunt and her other siblings…

A:  “She never spoke about them”

This could be considered extremely disingenuous as Lorraine Plett is recorded as the publisher of the book The Heinrichs of Halbstadt  and would have been aware of the intimate relationship of the siblings with Aunt Anne.  The fact that Aunt Anne didn’t speak about them reinforces the premise that she was not consciously aware of her situation or predicament and totally disconnected from the real world.   “A truth that is told with bad intent, beats all the lies you can invent.”  William Blake.

Warren Heinrichs’ Testimony:   born the year Aunt Ann was first admitted to Selkirk.

Vol 3  Pg. 7

Q:  ….how would you describe her condition?

A:   “ Pretty straight faced, but other than that.  I didn’t know any, anything other than normal.”

Q:  Did you know she had been diagnosed with schizophrenia at some point?

A:  “I believe I was told that in my late teens and I was actually surprised”.

This too is disingenuous; The court has heard that Aunt Ann has displayed symptoms of Schizophrenia since the early 1950’s, before he was born, was committed to Selkirk Mental Institution in 1957, the year he was born, been an outpatient of the Health Services continuously, confined at least trice in Eden Mental Health Clinic, exhibits severe and conspicuously bizarre behaviour – yet Warren is “surprised”.  Where has he been?   Has he ever actually met her?

[25]  The Court’s take:  “ He (Warren) did not know that Ann had schizophrenia until he was in his teens”  - is an extremely generous interpretation of the above.  His first statement is in the present tense which appears to consider her as perfectly normal.  The second is in the past perfect tense.   Is this a conscious misrepresentation of his evidence?  Could this be perceived as “tampering with the evidence”?

The court’s assessment that:  (Reasons for the Decision

[42]   In assessing the evidence in this case, I found that Warren Heinrichs and his siblings testified in a forthright and candid way. There was no attempt to exaggerate or embellish or to dismiss suggestions about their aunt's eccentricities.

I find this paragraph absolutely confounding.  What does it say? Are we on the same planet?   Perhaps I just don’t appreciate the fine art of sophistry. 

A guiding principle could come from the famous Lucius Cassius, whom the Romans regarded as a very honest and wise judge, who was in the habit of asking, time and again, “Cui bono”,  'To whose benefit?'

The respondents had such excellent motives for doing themselves good turns by peddling obviously spurious narratives at variance with all rigorously researched family documents.  

How can you avoid exaggerating or embellishing an eccentricity that has been professionally diagnosed as established symptoms of schizophrenia?  A sleight of hand?  Cognitive manipulation?

On the other hand, while I believe that Rudy Hoffman and the relatives who testified in opposition to the will were attempting to be honest, ….they had little to do with their Aunt and can provide little insight into her mental state at that time…

How can you question the motive of a man who volunteers to represent all 56 nieces and nephews plus for good measure the offspring of the deceased ones?  An excellent example of white is black casuistry.

This subjective and arbitrary finding sits rather awkwardly with substantive evidence and the above discrepancies.  The clear inference we derive is that somehow we were not “honest” and their side was!  Not so much partisanship as the inbuilt bias of a held hostage.  This gives the perception of a lot of favour and some ill will. In my opinion, this confirms a perceived predisposed perverse alignment of the court to the respondent's case. 

Susanna Klassen’s Testimony:

Q:  ..What became of your Aunt Ann after her husband Fred died?

A:  “Shortly after she came to live with my parents”

Q: …the Klassens, .your mother Susanna?   Vol. 5.   Page 3.

There is documented evidence that Aunt Ann moved to Uncle Ben for two weeks as well.  This does not allow a lot of time to be staying with her twin brother Jake.  It certainly dispels the myth posited that Aunt Ann was only cared for by her twin brother. 

The fact that the court fails to test and validate this conflicting evidence suggests something less than a conscientious or rigorous approach.   In appeals “we were hoping for three wise men; instead we got the three blind mice”. (Geoffrey Robertson)


Just when does wilful blindness and rampant invincible ignorance become culpable and indictable negligence?

Who would have thought fifty years ago that we would regularly imprison doctors, clergy or airline pilots for breaching their codes of conduct, yet Judges can act with utter impunity.  Building contractors can be indicted for poor construction, yet lawyers and judges can use eristic reasoning to construct tenuous arguments and mount fragile spurious cases with total immunity from prosecution.

The Catholic Church has lost its moral credibility and authority, not because a small percentage abused children; but because those responsible choose to do nothing.  If the courts want to regain some semblance of respect and credibility, the responsible Judges must pull the small time power mongers into line. What we need is not just better individuals; we need a better system to make up for individual flaws.

Appendix 2:   Further information re:  Sent 28/11/14

Re: Docket: PR09-01-81729
Indexed as: Hoffman v. Heinrichs
Cited as: 2012 MBQB 133
(Winnipeg Centre)

With respect, I would like to report what I believe to be verbal and psychological abuse in the above case by the following:
1) The Honorable Madam Justice Shawn D. Greenberg presiding
2) David G. Hill, Partner, Hill Sokalski Walsh Trippier LLP, Suite 2670, 360
Main Street, Winnipeg, MB R3C 3Z3

The treatment of witnesses: 

The two main problems in dealing with long past wills are failing memories and the passing of peer relatives. When Anne Olgilvie’s Will was putatively signed on October 20, 1980, most of her siblings and all of her 56 nieces and nephews were still alive. By the time Aunt Ann passed away, all of her sibling had predeceased her as well as about 10 of her nieces and nephews. 
Marie Dyck, a guileless lady in her mid - eighties, is one of the last surviving nieces of Uncle Jake and Aunt Ann’s era, so one of our best informed and most reliable touchstones of the 1930’s period.

As Richard Ackland wrote in 2011, 
“Every so often someone, somewhere outside the rarefied confines of legal reasoning, says something that starkly skewers mountains of verbiage and complexity in one breathless utterance.
Mandy Rice-Davies is a memorable example. Her retort at the Stephen Ward trial, ''Well, he would [say that], wouldn't he?'' succinctly exposed mountains of establishment cant.

So it is with Marie’s Dyck’s evidence. Marie is uneducated but well grounded. Without the benefit of a formal education she fails to appreciate the skills and aptitude for dissembling, using rhetoric or perception management. She seldom uses euphemisms (still calls a soil relocation implement – a spade), is incapable of using casuistry, sophistry or eristic
arguments as persuasive techniques. WYSIWYG.

We should always listen to people who lack power. It is not just our duty, but a key source of grounded information of unsung heroes and sound advice on how officials should conduct themselves.  As W.H. Auden put it:  All truths are derived from the ordinary, daily common lives of contemporary people”.  In all institutions, the most reliable and guileless information comes from the lowest employees, yet courts usually give greater credence to dissembling executives or their spinmeisters /spruikers.

Marie was a believer; idealistic - still believed that the courts are interested in “the truth, the whole truth and nothing but the truth”; that perjury is an indictable crime, that the courts should be unbiased, rule without fear or favor and that justice must not only be done, but seen to be done.

 
To the rest of us, these may appear quaint, naïve or romantic notions in these post-modern, post logical, post cynical times; like Hamlet’s “more honored in the breach than in the observance” or Macbeth, finally realising that he has been conned by the witch’s evasive and duplicitous assurances: 


And be these juggling fiends no more believed,
That palter with us in a double sense,
That keep the word of promise to our ear,
And break it to our hope.

Shortly after the court case had completed Marie called me in Australia, where I have been living for the past 42 years. She was in a state of shock! Her first impressions of the case included: 
“I have never heard so many lies told in one place” and “The judge was in love with the lawyer for the other side; it was so obvious - every time he spoke she was all smiles but when our lawyer spoke she looked away and pretended to be busy with paper work.” 

Psychologists and linguists agree that more than 90% of communication is non-verbal.

Since then we have exchanged many emails and phone calls. It is my considered opinion that she is a victim of abuse. She suffers from recurring grievances of mistreatment by the courts. The court system has caused her to lose her faith, confidence and trust. It troubles me that so many of my extended family too have little faith in our legal judicial system. 

Here is a statement she recently sent me:

It was with a great deal of trepidation that I came home from Arizona to come to the proceedings. I knew that the truth was very important and I was afraid of making a mistake. We were not allowed to hear what the Heinrichs were testifying to but they were in the audience when we testified.
Mother wanted to see Uncle Jake in Altona It was after Dad died so it was either in fall of 1985 or 1986. Uncle Jake was not at home but Aunt Mary was.

We were sitting at the table visiting when Uncle Jake walked in. I am not aware that he even said Hello to Mom whom he had not seen since Dad passed away. But the first thing he said to Mom “I helped Aunt Anne make her will".
We both took for granted that he had done it that day. (Which I later learned had been done a few years earlier. Which in my opinion makes it even worse since he made it all out to himself It must have weighed on his conscience to blurt it out like that) Anyway I said "Oh then you had her make it all out to yourself" and he argued with me finally he said "Why don't you go to the Credit Union and read it?" (The Will was stored in Saskatchewan) Like I can go around reading other people's Wills. I only learned after the trial that it was made a few years earlier. 
But when I was testifying I had Mr. Hill yelling at me and calling me a liar, which was very unnerving. And the Judge (who was very taken with the other party asked me to sit down) 
Later I heard that she considered me old and could not remember, and I have news for her she is well on her way to getting to my age and besides not easy to think when the other party's lawyer is having a fit and yelling at you.
Later at the appeal I felt that our judge was very inappropriately friendly to Mr. Hill, the other party’s lawyer.

Marie Dyck Received 24/11/14 by Charles Klassen


I have read a transcript of the trial and find no references to the interjections of Mr. Hill even though other members of my family have confirmed Marie’s allegations. Is the transcript a true, full and accurate record of what transpired?

Respectfully yours

Charles Klassen


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