On June 11, 2021, the Supreme Court of Canada released its highly-anticipated decision in Sherman Estate v. Donovan, in which the Court ordered that the Sherman probate files be unsealed. In its ruling, the Supreme Court of Canada affirmed the open-court principle and freedom of the press as fundamental pillars of Canadian democracy.
The facts of the Sherman 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 the couple’s estates sought sealing orders in respect of the probate applications on the basis that the individuals named in the applications would have their privacy invaded due to the intense public interest in the case, and their safety endangered as those responsible for the killings remain at large.
The sealing orders were granted by the lower court. However, the Toronto Star and one of its reporters, Kevin Donovan, brought an application to overturn the sealing orders, arguing that 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. The appeal was dismissed in a unanimous judgment of the Court delivered by Kasirer J.
As a general rule, court proceedings, including probate files, 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 articulated 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 this 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 scope of what type of interests 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 Sherman case, the Court was of the view that the risk to the important public interest of privacy, in reference to dignity, was not sufficiently grave. 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 files 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 those named in the probate files. The Court declined to infer that their safety was 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 has confirmed that the presumption of openness applies to all judicial proceedings, including probate applications. While dissemination of this information may bring discomfort to the individuals concerned, that alone is not sufficient in establishing harm sufficient to warrant a departure from the open court principle.
A month after the judgment, the contents of the Sherman probate files have now been published for public consumption, including the value of the fortunes left behind, the fact that Barry Sherman had two Wills which divided his estate equally between his four children, and that Honey Sherman died without a Will. While court openness has been rightfully upheld, the public’s interest in the lives and assets of the wealthy and prominent has also been stoked.