On June 11, 2021, the Supreme Court of Canada released its highly anticipated decision in Sherman Estate v. Donovan.
The facts of the case have been widely publicized. Barry and Honey Sherman, a prominent couple, were found dead in their home in December 2017. Their deaths, treated as homicides, remain unsolved. The estate trustees of their estates sought sealing orders in respect of the probate applications. The sealing orders were granted at first instance. However, the Toronto Star and one of its reporters, Kevin Donovan, brought an application to overturn the sealing orders, arguing they violated the constitutional right of freedom of expression and freedom of the press, as well as the open court principle. The lower court upheld the sealing orders, but that decision was overturned by the Court of Appeal for Ontario. The estate trustees were granted leave to appeal to the Supreme Court of Canada, but their appeal was dismissed in a unanimous judgment delivered by Kasirer J.
As a general rule, court proceedings, including probate applications, are presumptively open to the public. This open court principle is protected by the constitutional right of freedom of expression and is essential to the proper functioning of our democracy. The presumption of open courts “allows for public scrutiny which can be the source of inconvenience and embarrassment to those who feel that their engagement in the justice system brings intrusion into their private lives. But this discomfort is not, as a general matter, enough to overturn the strong presumption that the public can attend hearings and that court files can be consulted and reported upon by the free press.”
In considering the circumstances in which a court may exercise its discretion to limit its openness, the Court restructured the sealing order test articulated in Sierra Club of Canada v. Canada (Minister of Finances) as three criteria that a person seeking such an order must meet:
- court openness poses a serious risk to an important public interest;
- the order sought is necessary to prevent the serious risk to the identified interest because reasonable alternative measures will not prevent the risk; and
- as a matter of proportionality, the benefits of the order outweigh its negative effects.
The type of interests that might justify an exception to the open court presumption is not a closed list. Individual privacy and the protection of privacy is an important public interest. However, individual privacy is at risk in many court proceedings, such that the risk to privacy must threaten the person’s dignity in order to be engaged. Dignity will be at serious risk only where the information that would be disseminated as a result of court openness is sufficiently sensitive or private that it would strike at the individual’s biographical core in a manner that threatens their integrity (such as intimate and personal revelations about the individual, their lifestyle or their experiences). The burden is on the applicant to show that their privacy, in relation to their dignity, is at serious risk by the dissemination in question, which is a fact-specific analysis.
Protecting individuals from physical harm is also an important public interest, but the risk must be serious in order to meet the standard to limit court openness. In order to establish a serious risk of harm, direct evidence is not required, as harm can be objectively identified by discernable inferences. However, the risk of harm must not be speculative or merely based on bald assertions.
Applying the above analysis to the present case, the Court was of the view that the risk to the important public interest of privacy, in reference to dignity, was not sufficiently at risk. The information contained in the Sherman probate files would not reveal anything particularly private or sensitive about the estate trustees or the estate beneficiaries. The applicants therefore failed to establish that dissemination of the information in the probate file would strike at the biographical core of the individuals concerned.
Furthermore, the evidence did not support the existence of a serious risk of physical harm to the individuals concerned. The Court declined to infer that the safety of the persons named in the probate applications were at risk simply by virtue of their association with the Shermans, as doing so would be speculation.
The Court concluded that the sealing orders were properly set aside by the Court of Appeal, and dismissed the appeal.
Although privacy and protection from physical harm are important public interests, the Supreme Court of Canada confirmed that the presumption of openness applies to all judicial proceedings, including probate applications. While dissemination of this information may bring discomfort to the individual concerns, that alone is not sufficient to establish harm sufficient to warrant a departure from the open court principle.