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The Bernard and Honey Sherman Estate case: personal privacy interests versus the open court principle

7 minute read

It is common in certain types of litigation for there to be disclosure of personal, sometimes intimate, information about the parties.  This is often the case in estate, matrimonial, and personal injury proceedings in particular.

The “open court principle”, pursuant to which court proceedings and filings are accessible to the public, is said to further the important policy objective of enhancing public confidence in the administration of justice by making court proceedings open and transparent. It is also consistent with s. 2(b) Charter rights.  Therefore, it is very rare that a court will order the sealing of a court file.  There must be some public interest at stake to justify such an order.  The current case law suggests that a risk of physical or debilitating mental harm may be sufficient.

However, the question which is now squarely before the Supreme Court of Canada in the Sherman Estate case is whether the constitutionally protected right to privacy will affect the analysis with respect to when a sealing order may be granted:

  • whether privacy rights can constitute an important public interest; and
  • how the open court principle is to be balanced against an individual’s fundamental right to privacy.

The Supreme Court of Canada granted leave to appeal the decision of the Ontario Court of Appeal in Donovan v. Sherman Estate, 2019 ONCA 376.  The appeal was argued on October 6, 2020; judgment is on reserve.

The Sherman Estate case

It has been widely reported in the media that Bernard and Honey Sherman were brutally murdered in their home on or about December 15, 2017, and that no person has been charged with their murders.

In June, 2019, the trustees of the estates of the Shermans brought ex parte applications for the issuance of Certificates of Appointment of Estate Trustee and for orders sealing the court file.  They argued that there was no public interest to be served by allowing the privacy of the victims and their family to be invaded and “adding more fuel to the publicity fire”. They also argued that the lack of tangible information about the motives and perpetrator(s) creates a reasonable apprehension of risk of physical harm to those who are the administrators or beneficiaries of the estates of the two victims.   Sealing orders were granted on June 29, 2018.

In July, 2018, Kevin Donovan sought and was denied access to the estate court files.  Donovan is a Toronto Star journalist, who wrote the book, “The Billionaire Murders: The Mysterious Deaths of Barry and Honey Sherman”.  Thereafter, the Toronto Star and Donovan brought an application to terminate or vary the sealing orders.  By order dated August 2, 2018, the application judge varied the sealing orders to provide for a two-year expiry.

Upon appeal by Donovan, the Ontario Court of Appeal set aside the sealing orders.  It noted that sealing orders are exceptional because of the well-established open court principle. The party seeking a sealing order bears the burden of demonstrating both:

  1. that the order is necessary to prevent a serious risk to an important public interest which cannot be protected by any other reasonable alternative methods, and under this branch of the test, the nature and significance of the public interest in access to the material is irrelevant (the necessity requirement); and
  2. that the salutary effects of the sealing order outweigh its deleterious effects, including the negative effects on the right to freedom of expression and other public interests served by open and accessible court proceedings (the balancing requirement).

The Court recognized the understandable desire of the Sherman family to grieve out of the public spotlight and to keep family and estate-related matters private, but said that personal concerns, without more, cannot justify a sealing order.  There must be a public interest component. It found that the personal safety of individuals is an important public interest that can warrant a sealing order, but not in this case. The application judge relied upon speculation, not evidence, about the risk of physical harm.

The inference to be drawn is that evidence of a reasonable apprehension of physical harm to an individual could be an important public interest that could warrant a sealing order.

The Colonel Russell Williams case

This decision is a reminder of the sealing order sought in M.E.H. v Williams, 2012 ONCA 35, another case involving intense media coverage.

Colonel Russell Williams was a senior officer of the Canadian Armed Forces, who turned out to be a sexual predator and murderer. His wife brought a motion for an order sealing the entire record in proposed divorce proceedings or, in the alternative, an order banning publication of medical and financial evidence, as well as any information that would identify her as the plaintiff.  It was accepted that she was another victim of her husband’s depravity. The motion judge made a broad non-publication and sealing order.

The evidence relied upon by the wife was the affidavit of her treating psychiatrist, which the motion judge found established she was shocked and devastated by the revelations about her husband’s conduct.  Further, there was a real and substantial risk to her mental well-being if the media was allowed to identify her by name and publish personal and financial information about her.

This was an issue of public importance because a litigant who is required to go to court to sever her relationship with her husband should not be put in a position where the publicity attendant upon gaining that court access would pose a substantial risk to the litigant’s mental health, which went beyond “sensibilities, discomfort, mere embarrassment, and personal preference”. The wife’s fragile recovery would be compromised by the renewed publicity that would result from these proceedings.

The Court of Appeal overturned the motion judge’s order on the basis that the evidence did not support the conclusion that it was necessary to prevent a serious risk to the proper administration of justice.  Such evidence must be “convincing” and “subject to close scrutiny and meet exacting standards”.

The Court accepted that the wife’s right to seek access to the courts could meet the public interest test as essential to the proper administration of justice:  “Access to the courts should not come at the cost of a substantial risk of serious debilitating emotional or physical harm to the party seeking access” because “access to the courts at that cost would be more illusory than real”.  However, the evidence did not support this conclusion.

The Ottawa Citizen, which intervened in the appeal, pointed out that much of this evidence had already been voluntarily disclosed by the plaintiff in court proceedings brought against her by one of her husband’s victims and in a media interview given by her lawyer.  There was no evidence that she had suffered as a result of the public disclosure of this information.

In these two cases, the evidence was not sufficient to meet the “necessity” part of the test for a sealing order, but they both raise broader privacy issues.

What constitutes a public interest sufficient to meet the “necessity” part of the test?

The Court of Appeal in M.E.H v Williams articulated the tensions at play in these kinds of cases as follows (at para. 32):

A court faced with a case like this one where decency suggests some kind of protection for the respondent must avoid the temptation to begin by asking: where is the harm in allowing the respondent to proceed with some degree of anonymity and without her personal information being available to the media? Rather, the court must ask: has the respondent shown that without the protective orders she seeks there is a serious risk to the proper administration of justice?

The tragic and unique facts of the Sherman Estate case provide an opportunity for the Supreme Court of Canada to consider the broader policy issues at play and re-consider its own test established almost two decades ago in the leading case Sierra Club of Canada v Canada (Minister of Finance), [2002] 2 S.C.R. 522, with respect to when a sealing order will be granted.

In particular, will there be room for recognition that a party’s personal privacy rights may constitute a public interest worthy of protection by a sealing order and, if so, in what circumstances, and what evidence will be necessary to establish it?

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Lisa C. Munro, FCIArb, Q.Arb

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