Sealing off the court from the public eye – what is the risk v. benefit?

Sherman Estate v. Donovan 2021 SCC 25
Post by: Matthew Stubbs and Ted Chadderton

The Supreme Court of Canada released its decision in Sherman Estate v. Donovan 2021 SCC 25 in June of 2021. This case concerns the unresolved homicide of Bernard and Honey Sherman, who were found dead in their Toronto home in December of 2017. The couple’s estate and estate trustees attempted to stem the intense press scrutiny prompted by the events. At issue was the probate of a million, if not billion-dollar estate.

The Trustees sought a sealing order so that the estate trustees and beneficiaries might be spared any further intrusions into their privacy, 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, but could offer no evidence of this possible harm.

The sealing orders were challenged by Kevin Donovan and the Toronto Star Newspaper Ltd. They stated that the orders violated their constitutional rights of freedom of expression and freedom of the press, as well as attending that the workings of the courts should be open to the public as a means of guaranteeing the fair and transparent administration of justice. The Court of Appeal set aside the sealing order.

In this case, they expand upon the test originally set in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, expanding it from a two-step inquiry into a three-step process, which states that 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 precent 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.

Only where all three of these tests have been met can a discretionary limit on openness properly be ordered, such as a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order.

In the court’s reasoning they made a comparison, noting that the requirements satisfying this test would be similar to what would satisfy the Oakes test.

For example, a harm to a particular business interest would not have been sufficient, but the “general commercial interest of preserving confidential information” would count due to the public nature or character of that interest.

In this case, since the trustees had failed to establish a serious risk to an important public interest, that ended the court’s analysis. As it was just these trustees’ particular interest in this single, though financially large estate, there was no “public” aspect to protect.

Post by: Matthew Stubbs and Ted Chadderton