Privacy, Court Openness and Estate Matters
The Supreme Court of Canada recently confirmed that the trustees handling the Barry and Honey Sherman estate had failed to overcome the test for discretionary limits on court openness in their applications for sealing orders: Sherman Estate v Donovan, 2021 SCC 25.
The estate trustees had obtained sealing orders to address the intense press scrutiny surrounding the deaths of Barry and Honey Sherman – which continue to be investigated as unsolved homicides, to this day. The sealing orders were challenged and successfully lifted at the Ontario Court of Appeal.
In considering this matter, Supreme Court of Canada was provided with the opportunity to confirm the importance of the presumption in favour of court openness and the relevant test for the discretionary limits on court openness, in the context of a estate matter:
“Court proceedings are presumptively open to the public. Court openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of Canadian democracy. Reporting on court proceedings by a free press is often said to be inseparable from the principle of open justice. The open court principle is engaged by all judicial proceedings, whatever their nature. Matters in a probate file are not quintessentially private or fundamentally administrative. Obtaining a certificate of appointment of estate trustee in Ontario is a court proceeding engaging the fundamental rationale for openness — discouraging mischief and ensuring confidence in the administration of justice through transparency — such that the strong presumption of openness applies.
The test for discretionary limits on court openness is directed at maintaining the presumption while offering sufficient flexibility for courts to protect other public interests where they arise. In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.” [Emphasis added]
The Supreme Court of Canada identified privacy as being predicated on dignity, and involving the right to present core aspects of oneself to others in a considered and controlled manner, as an expression of an individual’s unique personality or personhood. The Supreme Court of Canada confirmed however, that privacy predicated on dignity will be a serious risk in only limited circumstances, and identified the question to be asked, as follows:
“Neither the sensibilities of individuals nor the fact that openness is disadvantageous, embarrassing or distressing to certain individuals will generally on their own warrant interference with court openness. 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 such that openness can be shown to meaningfully strike at the individual’s biographical core in a manner that threatens their integrity. The question is whether the information reveals something intimate and personal about the individual, their lifestyle or their experiences.” [Emphasis added]
The Supreme Court of Canada identified further that there is an important public interest in protecting individuals from physical harm, but confirmed that a discretionary order limiting court openness can only be made where there is a serious risk to this important public interest. Speculation is not satisfactory to show serious risk of physical harm, however direct evidence is also not necessarily required and logical inferences may suffice. Importantly it is not just the probability of feared harm, but also the gravity of the harm itself that is relevant to the assessment of serious risk.
In the Barry and Honey Sherman matter, the Supreme Court of Canada found that the risk to the important public interest in privacy, defined in reference to dignity, was not serious. The information contained in the probate files was not seen to reveal anything particularly private or highly sensitive. It had not been shown that it would strike at the biographical core of the affected individuals (the estate trustees and the beneficiaries) in a way that would undermine their control over the expression of their identities.
Furthermore, there was no evidence showing a serious risk of physical harm. The estate trustees had relied on inferences that harm would befall the affected individuals, but also that persons existed who wish to harm them. The Supreme Count of Canada concluded that to infer all of this on the basis of the deaths and the association of the affected individuals with the deceased was not a reasonable inference but, rather, was speculation.
The Supreme Court of Canada concluded that the risks to privacy and physical safety could not be said to be sufficiently serious, such that the sealing orders should not have been issued.