Court Upholds Protection Order on Sherman Estate Files


Recently, the Ontario Superior Court of Justice (ONSCJ) released a decision considering how to balance the public interest in open courts with respecting the privacy and safety of the families of high profile murder victims in Toronto. In December 2017, Barry Sherman, the founder of the pharmaceutical company Apotex, and his wife Honey Sherman, were found dead in their Toronto home. In the time since, neither a motive nor a murderer has been uncovered.[1] This summer, a reporter from the Toronto Star has sought access to the Estate files of Mr. and Mrs. Sherman, both of which had been sealed by the Court. In response, the reporter and the Toronto Star have filed applications to vary or terminate the Protective Order on these files, and to unseal them, making their contents publicly accessible.[2] In the decision released last week, the ONSCJ discusses this issue, both as it relates to open courts and the freedom of expression, and as it relates to the protection of the families of the victims.

In arguing for the unsealing of the estate files, Mr. Donovan, the Toronto Star reporter, contends that “the principle of open courts is inextricably tied to the rights guaranteed by s. 2(b) of the Charter,” and that preventing access to the files inhibits freedom of expression.[3] He argues that constraining such a Charter-protected right through a confidentiality order should only be granted when there is no other way to avoid the potential risk, and when the benefits of granting it outweigh the implications on freedom of expression and open court proceedings.[4] The ONSCJ acknowledges the strength of Mr. Donovan’s argument, noting that “the open court principle is a fundamental element necessary to maintain and nourish confidence in our courts and their integrity.”[5] The question for the Court, then, is whether the confidentiality order is truly necessary, outweighing the public interest in open courts—a burden of proof that the trustees of the Sherman Estate must meet.[6]

The trustees of Barry and Honey Sherman, conversely, state that the family has already been cast into the public view through the initial accusations that the Shermans’ deaths were a murder suicide, rather than a double homicide, and argue that “there is no public interest served by invading the privacy and dignity of the victims and their family still further simply to add more fuel to the fire.”[7] Additionally, they note that estate applications contain significant personal details, including the names and addresses of family members—given that the perpetrator has not been apprehended, and no motive has been discovered, they argue that publicizing this information would pose a risk to their surviving family members. In considering this argument, the ONSCJ notes that while “the administration of criminal justice is fundamentally a public, not a private matter,” given the public interest in ensuring justice is done, the public does not have as strong an interest in “satisfying its curiosity to know intimate personal details of the lives and affairs of victims of crime.”[8] The judge explains that “the interest of protecting the privacy and dignity of victims of crime and their loved ones is an important one,” and agrees that their apprehensions of the risk involved with publicizing personal information is speculative but reasonable.[9]

After acknowledging the validity of both arguments, Justice Dunphy concludes by assessing whether the trustee’s arguments are sufficient to warrant interfering with the open court principle. He explains:

The open court principle is a fundamental one, but not every detail pertaining to the administration of justice is subject to the same degree of public interest. The names of judges hearing cases and the reasons given for deciding them are, for example, quite fundamental elements of the administration of justice. The open court principle would apply most heavily to prevent denying the public the ability to review such information.  The home address of judges, the plate number of their vehicles or where they had lunch on Wednesday, on the other hand, would obviously constitute private details that would normally have no bearing on the open courts principle.[10]

He notes that there is little contained in the estate files that is not already in the public domain, but that what is not already public from these files does not relate to a legitimate public interest, including the names and addresses of “[t]he full circle of persons connected to this tragedy.”[11] He concludes that “[t]he specific security and privacy concerns expressed by the respondents are reasonable and carry a greater weight in the circumstances of this case than the more general if presumptively weighty concerns favouring disclosure advanced by the applicants.”[12]

Although he agrees with the necessity of upholding the confidentiality order in the present, Justice Dunphy notes that given its interference with essential Charter principles, “[t]he restriction should be the minimum necessary to achieve the court’s objective as delineated and no more.”[13] He concludes that a permanent order “should be a last resort not a first result,” so ordered that to best address the situation, the files should be sealed for two years, after which the trustees can apply to renew the order if the same concerns regarding privacy and safety still apply.[14]

This case provides an interesting example of conflicting Charter rights and legal principles, in which the ONSCJ was required to balance both the public’s right to open courts and freedom of expression, as advanced by the Toronto Star and Mr. Donovan with the risk to the Sherman family’s right to security. Although the principle of open courts is an essential component of our legal system, the ONSCJ identified that in this specific circumstance, upholding this principle to its fullest would mean potentially endangering the Shermans’ safety and security, thus violating their Charter rights.

This blog post was written by a CCLA Volunteer. Opinions expressed do not necessarily reflect the views of the CCLA.

[1] Toronto Star Newspapers Ltd v Sherman Estate, 2018 ONSC 4706 at paras 4-5.

[2] Ibid at para 10.

[3] Ibid at para 13(a).

[4] Ibid at para 13(d).

[5] Ibid at para 15.

[6] Ibid at para 13(g).

[7] Ibid at para 18.

[8] Ibid at para 17.

[9] Ibid at para 23.

[10] Ibid at para 26.

[11] Ibid at para 33.

[12] Ibid.

[13] Ibid at para 35.

[14] Ibid at para 38.

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