The Ontario Superior Court of Justice was recently tasked with balancing two rather weighty legal principles in Toronto Star Newspapers Ltd. v. Sherman Estate, 2018 ONSC 4706. The particular facts of this case also afforded the Court with the opportunity to reflect on the particular nature of estate files more generally.
Barry Sherman and Honey Sherman were found murdered in their home on December 15, 2017. The macabre scene would go on to attract much attention and speculation, as readers will no doubt recall.
What would attract less attention for most, however, was the normally more mundane and routine process of beginning to administer the Shermans’ respective estates. On June 26, 2018, applications for the issuance of a Certificate of Appointment of Estate Trustee were made to the Ontario Superior Court of Justice. While such applications are normally made “over the counter” and dealt with in writing, given the circumstances of this case and the ongoing Toronto Police Service investigation, the applicants sought an oral hearing in order to request an order sealing the court file before filing their application.
The applications were ultimately heard by Justice Dunphy. After hearing the applications, his Honour made the following endorsement that was applicable to both estates:
This file involves confidential material of potential relevance to the police investigation. It shall remain in my custody and the application for a Certificate in both Estates shall remain in my custody as well pending further order.
Following the issuance of this protective order, the applications for the issuance of Certificates to the named trustees for both estates followed in their normal course. Both files, however, remained out of the public’s reach pending further order.
By July 2018, the Chief Investigative Reporter at the Toronto Star, Kevin Donovan, sought access to both estate files. Upon hearing that the files were sealed, he and his employer brought near identical applications which sought to vary or terminate the protective order shielding the files from the public eye.
Justice Dunphy was required to decide whether to lift the confidentiality order that he himself had put in place. Essentially, his Honour was required to balance the “very strong public policy in favour of open courts against the interest of protecting the dignity and privacy of the victims of crime and ensuring the safety of their survivors”. The burden of justifiably maintaining the protective order in this case rested with the aforementioned and duly appointed trustees of the Sherman estates. In considering whether the estate trustees had met their burden, Justice Dunphy identified several questions that would need to be addressed which will now be examined here in turn.
i. What are the principles to be applied in determining whether to issue a confidentiality order?
Pursuant to the Supreme Court of Canada decision in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (CanLII), the principle of an open court is one that is inextricably tied to the rights guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. Section 2(b) of the Charter provides that everyone has the fundamental freedom of thought, belief, opinion and expression, including freedom of the press and other media communication. In such situations where a publication ban or confidentiality order is being sought, then, courts are essentially being asked whether a constitutionally protected right may be compromised. Sierra Club further provides that confidentiality orders should only be granted by a court when (1) such an order is necessary in order 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.
As Justice Dunphy observed, the burden to be met by any party seeking a confidentiality order is indeed a high one given the above. His Honour went on to observe that:
The truth of the matter is that the open court principle is a fundamental element necessary to maintain and nourish public confidence in our courts and their integrity. Loss of that confidence would undermine the public’s willingness to accept the legitimacy of the mandate of judges to dispense justice on their behalf. From there lies a slippery slope to the sort of society that no Canadian wishes to bring about.
ii. What interest of the respondents would be served by granting a confidentiality order?
Upon hearing the submissions of the parties, Justice Dunphy concluded that the respondent estate trustees had indeed identified two legitimate interests which would justify the issuance or continuation of a confidentiality order in this case. For one, the respondents identified the interest of protecting the privacy and dignity of victims of crime and their loved ones. Secondly, there was the reasonable apprehension of risk on behalf of those that might benefit from or administer the Sherman estates as there was still nothing tangible about the motives and identities of the perpetrator(s) in this case.
iii. Are the interests to be protected sufficiently important to warrant interference with the open court principle?
Justice Dunphy proceeded to weigh the privacy and security concerns raised by the respondents against the very significant aforementioned weight of the fundamental values underlying the open court principle. This required his Honour to examine the particular nature of estate files.
After observing that progress in estate files is generally administrative in most cases, and that most modern estate planning involves techniques (e.g. the use of “primary wills” and “secondary wills”, etc.) that can keep all but a fraction of the affairs of a particular estate out of the public eye, Justice Dunphy held that maintaining a confidentiality order over these estate files would remove little from public scrutiny that was not already “out there” given the intense media coverage to date. Moreover, those details that were not already “out there” were held by Justice Dunphy to be those that would attract little if any legitimate public interest.
All told, Justice Dunphy concluded that the deleterious effects of applying confidentiality protection to the Sherman estate files were substantially outweighed by the salutary effects on the rights and interests of the victims, their beneficiaries, and the trustees of the Sherman estates in this case.
iv. If so, what minimum degree of confidentiality order will protect the respondents’ interests while infringing upon the open court principle to the minimum extent possible?
Having carefully reviewed both estate files, Justice Dunphy concluded that it was not possible to redact certain documents in order to make some part of the files public. Accordingly, his Honour issued a sealing order in relation to both files for an initial period of two years – having found that the entire files ought to be shielded from public scrutiny, a permanent order did not sit well with his Honour.
Though the open court principal is a fundamental one, it is not immune to compromise given the right circumstances. It is, like much in the administration of justice, all a matter of balance.