Sherman Estate v. Donovan

Sherman Estate v. Donovan
Collection
Supreme Court Judgments
Date
2021-06-11
Neutral citation
2021 SCC 25
Report
[2021] 2 SCR 75
Case number
38695
Judges
Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Ontario
Subjects
Courts
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75
Appeal Heard: October 6, 2020 Judgment Rendered: June 11, 2021 Docket: 38695
Between: Estate of Bernard Sherman and Trustees of the Estate and Estate of Honey Sherman and Trustees of the Estate Appellants
and
Kevin Donovan and Toronto Star Newspapers Ltd. Respondents
- and -
Attorney General of Ontario, Attorney General of British Columbia, Canadian Civil Liberties Association, Income Security Advocacy Centre, Ad IDEM/Canadian Media Lawyers Association, Postmedia Network Inc., CTV, a Division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, The Globe and Mail Inc., Citytv, a division of Rogers Media Inc., British Columbia Civil Liberties Association, HIV & AIDS Legal Clinic Ontario, HIV Legal Network and Mental Health Legal Committee Interveners
Coram: Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 108)
Kasirer J. (Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe and Martin JJ. concurring)
Estate of Bernard Sherman and Trustees of the Estate and
Estate of Honey Sherman and Trustees of the Estate Appellants
v.
Kevin Donovan and
Toronto Star Newspapers Ltd. Respondents
and
Attorney General of Ontario,
Attorney General of British Columbia,
Canadian Civil Liberties Association,
Income Security Advocacy Centre,
Ad IDEM/Canadian Media Lawyers Association,
Postmedia Network Inc., CTV, a Division of Bell Media Inc.,
Global News, a division of Corus Television Limited Partnership,
The Globe and Mail Inc., Citytv, a division of Rogers Media Inc.,
British Columbia Civil Liberties Association,
HIV & AIDS Legal Clinic Ontario, HIV Legal Network and Mental Health Legal Committee Interveners
Indexed as: Sherman Estate v. Donovan
2021 SCC 25
File No.: 38695.
2020: October 6; 2021: June 11.
Present: Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for ontario
Courts — Open court principle — Sealing orders — Discretionary limits on court openness — Important public interest — Privacy — Dignity — Physical safety — Unexplained deaths of prominent couple generating intense public scrutiny and prompting trustees of estates to apply for sealing of probate files — Whether privacy and physical safety concerns advanced by estate trustees amount to important public interests at such serious risk to justify issuance of sealing orders.
A prominent couple was found dead in their home. Their deaths had no apparent explanation and generated intense public interest. To this day, the identity and motive of those responsible remain unknown, and the deaths are being investigated as homicides. The estate trustees sought to stem the intense press scrutiny prompted by the events by seeking sealing orders of the probate files. Initially granted, the sealing orders were challenged by a journalist who had reported on the couple’s deaths, and by the newspaper for which he wrote. The application judge sealed the probate files, concluding that the harmful effects of the sealing orders were substantially outweighed by the salutary effects on privacy and physical safety interests. The Court of Appeal unanimously allowed the appeal and lifted the sealing orders. It concluded that the privacy interest advanced lacked a public interest quality, and that there was no evidence of a real risk to anyone’s physical safety.
Held: The appeal should be dismissed.
The estate trustees have failed to establish a serious risk to an important public interest under the test for discretionary limits on court openness. As such, the sealing orders should not have been issued. Open courts can be a source of inconvenience and embarrassment, but this discomfort is not, as a general matter, enough to overturn the strong presumption of openness. That said, personal information disseminated in open court can be more than a source of discomfort and may result in an affront to a person’s dignity. Insofar as privacy serves to protect individuals from this affront, it is an important public interest and a court can make an exception to the open court principle if it is at serious risk. In this case, the risks to privacy and physical safety cannot be said to be sufficiently serious.
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.
The recognized scope of what interests might justify a discretionary exception to open courts has broadened over time and now extends generally to important public interests. The breadth of this category transcends the interests of the parties to the dispute and provides significant flexibility to address harm to fundamental values in our society that unqualified openness could cause. While there is no closed list of important public interests, courts must be cautious and alive to the fundamental importance of the open court rule when they are identifying them. Determining what is an important public interest can be done in the abstract at the level of general principles that extend beyond the parties to the particular dispute. By contrast, whether that interest is at serious risk is a fact‑based finding that is necessarily made in context. The identification of an important interest and the seriousness of the risk to that interest are thus theoretically separate and qualitatively distinct operations.
Privacy has been championed as a fundamental consideration in a free society, and its public importance has been recognized in various settings. Though an individual’s privacy will be pre‑eminently important to that individual, the protection of privacy is also in the interest of society as a whole. Privacy therefore cannot be rejected as a mere personal concern: some personal concerns relating to privacy overlap with public interests.
However, cast too broadly, the recognition of a public interest in privacy could threaten the strong presumption of openness. The privacy of individuals will be at risk in many court proceedings. Furthermore, privacy is a complex and contextual concept, making it difficult for courts to measure. Recognizing an important interest in privacy generally would accordingly be unworkable.
Instead, the public character of the privacy interest involves protecting individuals from the threat to their dignity. Dignity in this sense involves the right to present core aspects of oneself to others in a considered and controlled manner; it is an expression of an individual’s unique personality or personhood. This interest is consistent with the Court’s emphasis on the importance of privacy, but is tailored to preserve the strong presumption of openness.
Privacy as predicated on dignity will be at serious risk in limited circumstances. 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.
In cases where the information is sufficiently sensitive to strike at an individual’s biographical core, a court must then ask whether a serious risk to the interest is made out in the full factual context of the case. The seriousness of the risk may be affected by the extent to which information is disseminated and already in the public domain, and the probability of the dissemination actually occurring. The burden is on the applicant to show that privacy, understood in reference to dignity, is at serious risk; this erects a fact‑specific threshold consistent with the presumption of openness.
There is also an important public interest in protecting individuals from physical harm, but a discretionary order limiting court openness can only be made where there is a serious risk to this important public interest. Direct evidence is not necessarily required to establish a serious risk to an important public interest, as objectively discernable harm may be identified on the basis of logical inferences. But this process of inferential reasoning is not a licence to engage in impermissible speculation. It is not just the probability of the feared harm, but also the gravity of the harm itself that is relevant to the assessment of serious risk. Where the feared harm is particularly serious, the probability that this harm materialize need not be shown to be likely, but must still be more than negligible, fanciful or speculative. Mere assertions of grave physical harm are therefore insufficient.
In addition to a serious risk to an important interest, it must be shown that the particular order sought is necessary to address the risk and that the benefits of the order outweigh its negative effects as a matter of proportionality. This contextual balancing, informed by the importance of the open court principle, presents a final barrier to those seeking a discretionary limit on court openness for the purposes of privacy protection.
In the present case, the risk to the important public interest in privacy, defined in reference to dignity, is not serious. The information contained in the probate files does not reveal anything particularly private or highly sensitive. It has not been shown that it would strike at the biographical core of the affected individuals in a way that would undermine their control over the expression of their identities. Furthermore, the record does not show a serious risk of physical harm. The estate trustees asked the application judge to infer not only the fact that harm would befall the affected individuals, but also that a person or persons exist who wish to harm them. To infer all this on the basis of the deaths and the association of the affected individuals with the deceased is not a reasonable inference but is speculation.
Even if the estate trustees had succeeded in showing a serious risk to privacy, a publication ban — less constraining on openness than the sealing orders — would have likely been sufficient as a reasonable alternative to prevent this risk. As a final barrier, the estate trustees would have had to show that the benefits of any order necessary to protect from a serious risk to the important public interest outweighed the harmful effects of the order.
Cases Cited
Applied: Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522; referred to: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332; Khuja v. Times Newspapers Ltd., [2017] UKSC 49, [2019] A.C. 161; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; R. v. Henry, 2009 BCCA 86, 270 B.C.A.C. 5; Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567; Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188; Re Southam Inc. and The Queen (No.1) (1983), 41 O.R. (2d) 11; R. v. Oakes, [1986] 1 S.C.R. 103; Otis v. Otis (2004), 7 E.T.R. (3d) 221; H. (M.E.) v. Williams, 2012 ONCA 35, 108 O.R. (3d) 321; F.N. (Re), 2000 SCC 35, [2000] 1 S.C.R. 880; R. v. Dyment, [1988] 2 S.C.R. 417; Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733; Toronto Star Newspaper Ltd. v. R., 2012 ONCJ 27, 289 C.C.C. (3d) 549; Douez v. Facebook, Inc., 2017 SCC 33, [2017] 1 S.C.R. 751; R. v. Paterson (1998), 102 B.C.A.C. 200; S. v. Lamontagne, 2020 QCCA 663; Himel v. Greenberg, 2010 ONSC 2325, 93 R.F.L. (6th) 357; A.B. v. Canada (Citizenship and Immigration), 2017 FC 629; R. v. Pickton, 2010 BCSC 1198; Lac d’Amiante du Québec Ltée v. 2858‑0702 Québec Inc., 2001 SCC 51, [2001] 2 S.C.R. 743; 3834310 Canada inc. v. Chamberland, 2004 CanLII 4122; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; Coltsfoot Publishing Ltd. v. Foster‑Jacques, 2012 NSCA 83, 320 N.S.R. (2d) 166; Goulet v. Transamerica Life Insurance Co. of Canada, 2002 SCC 21, [2002] 1 S.C.R. 719; Godbout v. Longueuil (Ville de), [1995] R.J.Q. 2561, aff’d [1997] 3 S.C.R. 844; A. v. B., 1990 CanLII 3132; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; Work Safe Twerk Safe v. Her Majesty the Queen in Right of Ontario, 2021 ONSC 1100; Fedeli v. Brown, 2020 ONSC 994; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584; R. v. Chanmany, 2016 ONCA 576, 352 O.A.C. 121; X. v. Y., 2011 BCSC 943, 21 B.C.L.R. (5th) 410; R. v. Esseghaier, 2017 ONCA 970, 356 C.C.C. (3d) 455.
Statutes and Regulations Cited
Bill C‑11, An Act to enact the Consumer Privacy Protection Act and the Personal Information and Data Protection Tribunal Act and to make consequential and related amendments to other Acts, 2nd Sess., 43rd Parl., 2020.
Canadian Charter of Rights and Freedoms , ss. 2(b) , 8 .
Charter of Human Rights and Freedoms, CQLR, c. C‑12, s. 5.
Civil Code of Québec, arts. 35 to 41.
Code of Civil Procedure, CQLR, c. C‑25.01, art. 12.
Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31.
Personal Information Protection and Electronic Documents Act , S.C. 2000, c. 5 .
Privacy Act , R.S.C. 1985, c. P‑21 .
Authors Cited
Ardia, David S. “Privacy and Court Records: Online Access and the Loss of Practical Obscurity” (2017), 4 U. Ill. L. Rev. 1385.
Austin, Lisa M. “Re‑reading Westin” (2019), 20 Theor. Inq. L. 53.
Bailey, Jane, and Jacquelyn Burkell. “Revisiting the Open Court Principle in an Era of Online Publication: Questioning Presumptive Public Access to Parties’ and Witnesses’ Personal Information” (2016), 48 Ottawa L. Rev. 143.
Cockfield, Arthur J. “Protecting the Social Value of Privacy in the Context of State Investigations Using New Technologies” (2007), 40 U.B.C. L. Rev. 41.
Eltis, Karen. Courts, Litigants, and the Digital Age, 2nd ed. Toronto: Irwin Law, 2016.
Eltis, Karen. “The Judicial System in the Digital Age: Revisiting the Relationship between Privacy and Accessibility in the Cyber Context” (2011), 56 McGill L.J. 289.
Ferland, Denis, et Benoît Emery. Précis de procédure civile du Québec, vol. 1, 6e éd. Montréal: Yvon Blais, 2020.
Gewirtz, Paul. “Privacy and Speech”, [2001] Sup. Ct. Rev. 139.
Guillemard, Sylvette, et Séverine Menétrey. Comprendre la procédure civile québécoise, 2e éd. Montréal: Yvon Blais, 2017.
Hughes, Kirsty. “A Behavioural Understanding of Privacy and its Implications for Privacy Law” (2012), 75 Mod. L. Rev. 806.
Matheson, David. “Dignity and Selective Self‑Presentation”, in Ian Kerr, Valerie Steeves and Carole Lucock, eds., Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Networked Society. New York: Oxford University Press, 2009, 319.
McIsaac, Barbara, Kris Klein, and Shaun Brown. The Law of Privacy in Canada, vol. 1. Toronto: Thomson Reuters, 2000 (loose‑leaf updated 2020, release 11).
McLachlin, Beverley. “Courts, Transparency and Public Confidence – To the Better Administration of Justice” (2003), 8 Deakin L. Rev. 1.
Paton‑Simpson, Elizabeth. “Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places” (2000), 50 U.T.L.J. 305.
Perell, Paul M., and John W. Morden. The Law of Civil Procedure in Ontario, 4th ed. Toronto: LexisNexis, 2020.
Québec. Ministère de la Justice. Commentaires de la ministre de la Justice: Code de procédure civile, chapitre C‑25.01. Montréal: SOQUIJ, 2015.
Rochette, Sébastien, et Jean-François Côté. “Article 12”, dans Luc Chamberland, dir. Le grand collectif: Code de procédure civile — Commentaires et annotations, vol. 1, 5e éd. Montréal: Yvon Blais, 2020.
Rossiter, James. Law of Publication Bans, Private Hearings and Sealing Orders. Toronto: Thomson Reuters, 2006 (loose‑leaf updated 2020, release 2).
Solove, Daniel J. “Conceptualizing Privacy” (2002), 90 Cal. L. Rev. 1087.
APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Rouleau and Hourigan JJ.A.), 2019 ONCA 376, 47 E.T.R. (4th) 1, [2019] O.J. No. 2373 (QL), 2019 CarswellOnt 6867 (WL Can.), setting aside a decision of Dunphy J., 2018 ONSC 4706, 417 C.R.R. (2d) 321, 41 E.T.R. (4th) 126, 28 C.P.C. (8th) 102, [2018] O.J. No. 4121 (QL), 2018 CarswellOnt 13017 (WL Can.). Appeal dismissed.
Chantelle Cseh and Timothy Youdan, for the appellants.
Iris Fischer and Skye A. Sepp, for the respondents.
Peter Scrutton, for the intervener the Attorney General of Ontario.
Jaqueline Hughes, for the intervener the Attorney General of British Columbia.
Ryder Gilliland, for the intervener the Canadian Civil Liberties Association.
Ewa Krajewska, for the intervener the Income Security Advocacy Centre.
Robert S. Anderson, Q.C., for the interveners Ad IDEM/Canadian Media Lawyers Association, Postmedia Network Inc., CTV, a Division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, The Globe and Mail Inc. and Citytv, a division of Rogers Media Inc.
Adam Goldenberg, for the intervener the British Columbia Civil Liberties Association.
Khalid Janmohamed, for the interveners the HIV & AIDS Legal Clinic Ontario, the HIV Legal Network and the Mental Health Legal Committee.
The judgment of the Court was delivered by
Kasirer J. —
I. Overview
[1] This Court has been resolute in recognizing that the open court principle is protected by the constitutionally‑entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy. As a general rule, the public can attend hearings and consult court files and the press — the eyes and ears of the public — is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable.
[2] Accordingly, there is a strong presumption in favour of open courts. It is understood that this allows for public scrutiny which can be the source of inconvenience and even 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.
[3] Notwithstanding this presumption, exceptional circumstances do arise where competing interests justify a restriction on the open court principle. Where a discretionary court order limiting constitutionally‑protected openness is sought — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — the applicant must demonstrate, as a threshold requirement, that openness presents a serious risk to a competing interest of public importance. That this requirement is considered a high bar serves to maintain the strong presumption of open courts. Moreover, the protection of open courts does not stop there. The applicant must still show that the order is necessary to prevent the risk and that, as a matter of proportionality, the benefits of that order restricting openness outweigh its negative effects.
[4] This appeal turns on whether concerns advanced by persons seeking an exception to the ordinarily open court file in probate proceedings — the concerns for privacy of the affected individuals and their physical safety — amount to important public interests that are at such serious risk that the files should be sealed. The parties to this appeal agree that physical safety is an important public interest that could justify a sealing order but disagree as to whether that interest would be at serious risk, in the circumstances of this case, should the files be unsealed. They further disagree whether privacy is in itself an important interest that could justify a sealing order. The appellants say that privacy is a public interest of sufficient import that can justify limits on openness, especially in light of the threats individuals face as technology facilitates widespread dissemination of personally sensitive information. They argue that the Court of Appeal was mistaken to say that personal concerns for privacy, without more, lack the public interest component that is properly the subject‑matter of a sealing order.
[5] This Court has, in different settings, consistently championed privacy as a fundamental consideration in a free society. Pointing to cases decided in other contexts, the appellants contend that privacy should be recognized here as a public interest that, on the facts of this case, substantiates their plea for orders sealing the probate files. The respondents resist, recalling that privacy has generally been seen as a poor justification for an exception to openness. After all, they say, virtually every court proceeding entails some disquiet for the lives of those concerned and these intrusions on privacy must be tolerated because open courts are essential to a healthy democracy.
[6] This appeal offers, then, an occasion to decide whether privacy can amount to a public interest in the open court jurisprudence and, if so, whether openness puts privacy at serious risk here so as to justify the kind of orders sought by the appellants.
[7] For the reasons that follow, I propose to recognize an aspect of privacy as an important public interest for the purposes of the relevant test from Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522. Proceedings in open court can lead to the dissemination of highly sensitive personal information that would result not just in discomfort or embarrassment, but in an affront to the affected person’s dignity. Where this narrower dimension of privacy, rooted in what I see as the public interest in protecting human dignity, is shown to be at serious risk, an exception to the open court principle may be justified.
[8] In this case, and with this interest in mind, it cannot be said that the risk to privacy is sufficiently serious to overcome the strong presumption of openness. The same is true of the risk to physical safety here. The Court of Appeal was right in the circumstances to set aside the sealing orders and I would therefore dismiss the appeal.
II. Background
[9] Prominent in business and philanthropic circles, Bernard Sherman and Honey Sherman were found dead in their Toronto home in December of 2017. Their deaths had no apparent explanation and generated intense public interest and press scrutiny. In January of the following year, the Toronto Police Service announced that the deaths were being investigated as homicides. As the present matter came before the courts, the identity and motive of those responsible remained unknown.
[10] The couple’s estates and estate trustees (collectively the “Trustees”)[1] sought to stem the intense press scrutiny prompted by the events. The Trustees hoped to see to the orderly transfer of the couple’s property, at arm’s length from what they saw as the public’s morbid interest in the unexplained deaths and the curiosity around apparently great sums of money involved.
[11] When the time came to obtain certificates of appointment of estate trustee from the Superior Court of Justice, the Trustees sought a sealing order so that the estate trustees and beneficiaries (“affected individuals”) might be spared any further intrusions into their privacy and be protected from what was alleged to be a risk to their safety. The Trustees argued that if the information in the court files was revealed to the public, the safety of the affected individuals would be at risk and their privacy compromised as long as the deaths were unexplained and those responsible for the tragedy remained at large. In support of their request, they argued that there was a real and substantial risk that the affected individuals would suffer serious harm from the public exposure of the materials in the circumstances.
[12] Initially granted, the sealing orders were challenged by Kevin Donovan, a journalist who had written a series of articles on the couple’s deaths, and Toronto Star Newspapers Ltd., for which he wrote (collectively the “Toronto Star”).[2] The Toronto Star said the orders violated its constitutional rights of freedom of expression and freedom of the press, as well as the attending principle that the workings of the courts should be open to the public as a means of guaranteeing the fair and transparent administration of justice.
III. Proceedings Below
A. Ontario Superior Court of Justice, 2018 ONSC 4706, 41 E.T.R. (4th) 126 (Dunphy J.)
[13] In addressing whether the circumstances warranted interference with the open court principle, the application judge relied on this Court’s judgment in Sierra Club. He noted that a confidentiality order should only be granted when: “(1) such an order is necessary . . . to prevent a serious risk to an important interest because reasonable alternative measures will not prevent the risk; and (2) the salutary effects of the confidentiality order outweigh its deleterious effects, including the effects on the right to free expression and the public interest in open and accessible court proceedings” (para. 13(d)).
[14] The application judge considered whether the Trustees’ interests would be served by granting the sealing orders. In his view, the Trustees had correctly identified two legitimate interests in support of making an exception to the open court principle: “protecting the privacy and dignity of victims of crime and their loved ones” and “a reasonable apprehension of risk on behalf of those known to have an interest in receiving or administering the assets of the deceased” (paras. 22‑25). With respect to the first interest, the application judge found that “[t]he degree of intrusion on that privacy and dignity has already been extreme and . . . excruciating” (para. 23). For the second interest, although he noted that “it would have been preferable to include objective evidence of the gravity of that risk from, for example, the police responsible for the investigation”, he concluded that “the lack of such evidence is not fatal” (para. 24). Rather, the necessary inferences could be drawn from the circumstances notably the “willingness of the perpetrator(s) of the crimes to resort to extreme violence to pursue whatever motive existed” (ibid.). He concluded that the “current uncertainty” was the source of a reasonable apprehension of the risk of harm and, further, that the foreseeable harm was “grave” (ibid.).
[15] The application judge ultimately accepted the Trustees’ submission that these interests “very strongly outweigh” what he called the proportionately narrow public interest in the “essentially administrative files” at issue (paras. 31 and 33). He therefore concluded that the harmful effects of the sealing orders were substantially outweighed by the salutary effects on the rights and interests of the affected individuals.
[16] Finally, the application judge considered what order would protect the affected individuals while infringing upon the open court principle to the minimum extent possible. He decided no meaningful part of either file could be disclosed if one were to make the redactions necessary to protect the interests he had identified. Open‑ended sealing orders did not, however, sit well with him. The application judge therefore sealed the files for an initial period of two years, with the possibility of renewal.
B. Court of Appeal for Ontario, 2019 ONCA 376, 47 E.T.R. (4th) 1 (Doherty, Rouleau and Hourigan JJ.A.)
[17] The Toronto Star’s appeal was allowed, unanimously, and the sealing orders were lifted.
[18] The Court of Appeal considered the two interests advanced before the application judge in support of the orders to seal the probate files. As to the need to protect the privacy and dignity of the victims of violent crime and their loved ones, it recalled that the kind of interest that is properly protected by a sealing order must have a public interest component. Citing Sierra Club, the Court of Appeal wrote that “[p]ersonal concerns cannot, without more, justify an order sealing material that would normally be available to the public under the open court principle” (para. 10). It concluded that the privacy interest for which the Trustees sought protection lacked this quality of public interest.
[19] While it recognized the personal safety of individuals as an important public interest generally, the Court of Appeal wrote that there was no evidence in this case that could warrant a finding that disclosure of the contents of the estate files posed a real risk to anyone’s physical safety. The application judge had erred on this point: “the suggestion that the beneficiaries and trustees are somehow at risk because the Shermans were murdered is not an inference, but is speculation. It provides no basis for a sealing order” (para. 16).
[20] The Court of Appeal concluded that the Trustees had failed the first stage of the test for obtaining orders sealing the probate files. It therefore allowed the appeal and set aside the orders.
C. Subsequent Proceedings
[21] The Court of Appeal’s order setting aside the sealing orders has been stayed pending the disposition of this appeal. The Toronto Star brought a motion to adduce new evidence on this appeal, comprised of land titles documents, transcripts of the cross‑examination of a detective on the murder investigation, and various news articles. This evidence, it says, supports the conclusion that the sealing orders should be lifted. The motion was referred to this panel.
IV. Submissions
[22] The Trustees have appealed to this Court seeking to restore the sealing orders made by the application judge. In addition to contesting the motion for new evidence, they maintain that the orders are necessary to prevent a serious risk to the privacy and physical safety of the affected individuals and that the salutary effects of sealing the court probate files outweigh the harmful effects of limiting court openness. The Trustees argue that two legal errors led the Court of Appeal to conclude otherwise.
[23] First, they submit the Court of Appeal erred in holding that privacy is a personal concern that cannot, without more, constitute an important interest under Sierra Club. The Trustees say the application judge was right to characterize privacy and dignity as an important public interest which, as it was subject to a serious risk, justified the orders. They ask this Court to recognize that privacy in itself is an important public interest for the purposes of the analysis.
[24] Second, the Trustees submit that the Court of Appeal erred in overturning the application judge’s conclusion that there was a serious risk of physical harm. They argue that the Court of Appeal failed to recognize that courts have the ability to draw reasonable inferences by applying reason and logic even in the absence of specific evidence of the alleged risk.
[25] The Trustees say that these errors led the Court of Appeal to mistakenly set aside the sealing orders. In answer to questions at the hearing, the Trustees acknowledged that an order redacting certain documents in the file or a publication ban could assist in addressing some of their concerns, but maintained neither is a reasonable alternative to the sealing orders in the circumstances.
[26] The Trustees submit further that the protection of these interests outweighs the deleterious effects of the orders. They argue that the importance of the open court principle is attenuated by the nature of these probate proceedings. Given that it is non‑contentious and not strictly speaking necessary for the transfer of property at death, probate is a court proceeding of an “administrative” character, which diminishes the imperative of applying the open court principle here (paras. 113‑14).
[27] The Toronto Star takes the position that the Court of Appeal made no mistake in setting aside the sealing orders and that the appeal should be dismissed. In the Toronto Star’s view, while privacy can be an important interest where it evinces a public component, the Trustees have only identified a subjective desire for the affected individuals in this case to avoid further publicity, which is not inherently harmful. According to the Toronto Star and some of the interveners, the Trustees’ position would allow that measure of inconvenience and embarrassment that arises in every court proceeding to take precedence over the interest in court openness protected by the Canadian Charter of Rights and Freedoms in which all of society has a stake. The Toronto Star argues further that the information in the court files is not highly sensitive. On the issue of whether the sealing orders were necessary to protect the affected individuals from physical harm, the Toronto Star submits that the Court of Appeal was right to conclude that the Trustees had failed to establish a serious risk to this interest.
[28] In the alternative, even if there were a serious risk to one or another important interest, the Toronto Star says the sealing orders are not necessary because the risk could be addressed by an alternative, less onerous order. Furthermore, it says the orders are not proportionate. In seeking to minimize the importance of openness in probate proceedings, the Trustees invite an inflexible approach to balancing the effects of the order that is incompatible with the principle that openness applies to all court proceedings. In any event, there is a public interest in openness specifically here, given that the certificates sought can affect the rights of third parties and that openness ensures the fairness of the proceedings, whether they are contested or not.
V. Analysis
[29] The outcome of the appeal turns on whether the application judge should have made the sealing orders pursuant to the test for discretionary limits on court openness from this Court’s decision in Sierra Club.
[30] Court openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of our democracy (Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, at para. 23; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 23‑26). Reporting on court proceedings by a free press is often said to be inseparable from the principle of open justice. “In reporting what has been said and done at a public trial, the media serve as the eyes and ears of a wider public which would be absolutely entitled to attend but for purely practical reasons cannot do so” (Khuja v. Times Newspapers Ltd., [2017] UKSC 49, [2019] A.C. 161, at para. 16, citing Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at pp. 1339‑40, per Cory J.). Limits on openness in service of other public interests have been recognized, but sparingly and always with an eye to preserving a strong presumption that justice should proceed in public view (Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at p. 878; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, at paras. 32‑39; Sierra Club, at para. 56). The test for discretionary limits on court openness is directed at maintaining this presumption while offering sufficient flexibility for courts to protect these other public interests where they arise (Mentuck, at para. 33). The parties agree that this is the appropriate framework of analysis for resolving this appeal.
[31] The parties and the courts below disagree, however, about how this test applies to the facts of this case and this calls for clarification of certain points of the Sierra Club analysis. Most centrally, there is disagreement about how an important interest in the protection of privacy could be recognized such that it would justify limits on openness, and in particular when privacy can be a matter of public concern. The parties bring two settled principles of this Court’s jurisprudence to bear in support of their respective positions. First, this Court has often observed that privacy is a fundamental value necessary to the preservation of a free and democratic society (Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773, at para. 25; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at paras. 65‑66, per La Forest J. (dissenting but not on this point); New Brunswick, at para. 40). Courts have invoked privacy, in some instances, as the basis for an exception to openness under the Sierra Club test (see, e.g., R. v. Henry, 2009 BCCA 86, 270 B.C.A.C. 5, at paras. 11 and 17). At the same time, the jurisprudence acknowledges that some degree of privacy loss — resulting in inconvenience, even in upset or embarrassment — is inherent in any court proceeding open to the public (New Brunswick, at para. 40). Accordingly, upholding the presumption of openness has meant recognizing that neither individual sensibilities nor mere personal discomfort associated with participating in judicial proceedings are likely to justify the exclusion of the public from court (Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, at p. 185; New Brunswick, at para. 41). Determining the role of privacy in the Sierra Club analysis requires reconciling these two ideas, which is the nub of the disagreement between the parties. The right of privacy is not absolute; the open court principle is not without exceptions.
[32] For the reasons that follow, I disagree with t