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A real crime 

Peter Kelly’s legal problems raise the question: How common are busted probate cases?

click to enlarge GRAHAM PILSWORTH

Six weeks ago today, The Coast published the results of my exclusive investigation of mayor Peter Kelly's failure to properly execute the will of Mary Thibeault. ("A trust betrayed," February 16). That article showed how, after her death, Kelly had transferred over $160,000 from Thibeault's bank account, placing the money in the control of himself and his son.

Amidst a media firestorm after our revelations, Kelly announced he would not run for re-election, but otherwise, nothing else seems to have happened---the police refuse to investigate the matter and, as of Tuesday, there has been no change in the the Thibeault estate as related in the probate court file.

Police spokesperson Brian Palmeter told me Monday that the police won't investigate unless they receive a complaint from "a material party."

But, I pointed out, the police initiate investigations of lots of suspected crimes, even when the victim refuses to swear to a complaint---think domestic violence, elder financial abuse and even shootings, where for a variety of reasons the victims may not want the police involved.

"That's a good point," said Palmeter. "In those situations we'll investigate if a witness comes forward." So, I pressed, in the case of the Thibeault estate, a witness doesn't have to be a material party? Palmeter hedged on that point, but said that, regardless, no one has come forward to file a formal complaint, whether as material party or as witness suspecting wrong-doing.

Still, I doubt we'd be parsing who has to complain if we were talking about some street kid suspected of ripping off 20 bucks. There appears to be one justice system for connected politicians, and another for everyone else.

I'm not a lawyer, much less a judge, but it seems to me there are at least enough questions about the Thibeault estate to warrant a police investigation, particularly to answer the question: Did Kelly swear to a false affidavit and then submit it to the court? I wonder why the probate court itself hasn't called for an investigation of that point.

click to enlarge GRAHAM PILSWORTH

The Thibeault estate aside, since the article was published I've been contacted by dozens of people who have had their own problems with probate; one is even a relative of another local politician, who alleges that the politician has mishandled an estate. The problems, as alleged, all relate back to reasons why people might not want to, or can't, involve the cops---probate is hard to understand, it often involves family conflict (see domestic violence above), people on the outside think it's "personal business" and the cops have what they think are more important things to do.

These complaints prompted me to wonder if there was a way to look at probate systematically, so I contacted court administrator Peter James and told him I wanted to start drilling down into probate cases and look at thousands of them in order to better understand the problems and, perhaps, make suggestions for how to improve the probate system.

There's a prohibitive barrier for this research, however: the court charges $2.81 for each file I request; if I pulled, say, 2,000 files, it'd cost nearly $5,000. I asked James if I could get a break on the costs, and in return I'd show up three times a week and pull 25 files at a time so as to not overburden the clerks.

James initially seemed open to the idea, but after studying the matter told me that in Nova Scotia there's no legal way to reduce or eliminate fees for retrieving court files. By way of contrast, in the United States there are never fees charged for simply looking at a court file.

To say I am frustrated is an understatement, but never mind my journalistic concerns; the fee system also effectively bars, say, a criminology class from studying violent attacks that have entered the court system, or an academic researcher from looking at how divorce cases play out in terms of alimony payments.

The fee system in Nova Scotia courts stops any potential researcher from making a thorough examination of how the courts work and how successfully they perform. It is simply impossible to make informed critiques of the courts.

And this is a real crime.

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