Court File and Parties
COURT FILE NO.: CV-18-00012564-00ES and CV-18-00012565-00ES DATE: 20180802 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Toronto Star Newspapers Ltd. and Kevin Donovan, Applicants AND: The Estate of Bernard Sherman and the Trustees of the Estate, Respondents
AND RE: Toronto Star Newspapers Limited and Kevin Donovan, Applicants AND: The Estate of Honey Sherman and the Trustees of the Estate, Respondents
BEFORE: S.F. Dunphy J.
COUNSEL: Kevin Donovan, for the Applicants Timothy Youdan and Chantelle Spagnola, for the Respondents
HEARD at Toronto: July 31, 2018
Reasons for Decision
[1] This case requires me 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.
[2] The guiding principle in these cases is that of necessity: if any departure from the open courts principle is to be sanctioned, it must shield from the public gaze only so much of the court’s file as appears reasonably necessary to secure the ends of justice and no more.
[3] For the reasons that follow, I have ordered that the court files relating to both estates shall be sealed for a period of two years from the date hereof. Should the circumstances prevailing at that time warrant a renewal of the sealing orders, the respondent estates may apply for a renewal of the sealing orders on such terms as are just.
Background facts
[4] On December 15, 2017, Mr. Barry Sherman and Mrs. Honey Sherman were found brutally murdered in their Toronto home. The celebrity and wealth of the victims and the circumstances of their death generated intense publicity. Unfounded rumours swirled and were given a wide audience. On January 26, 2018, Toronto Police Service put an end to many of the rumours when they announced that they were investigating the deaths of both spouses as a targeted double homicide.
[5] As of the present time, little more is known. The motive behind the murders remains a mystery. The identity of the murderer or murderers remains unknown. In the absence of more information about motive and the identity of the murderer(s) the risk to the survivors cannot accurately be estimated. While the risk cannot accurately be estimated, I have little difficulty in concluding that – at this preliminary stage at least – the degree of mystery that persists regarding both the perpetrator and the motive raises a realistic prospect of continuing risk to those who may inherit possession or control of some or all of the assets of the victims.
[6] On June 26, 2009, applications the issuance of a Certificate of Appointment of Estate Trustee were made to this court. While such applications are customarily made “over the counter” and dealt with in writing by a duty judge presiding over our Estates List, the applicants sought an oral hearing in order to request an order sealing the court file before filing their application.
[7] After hearing the application, I made the following endorsement 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 was well pending further order.
[8] Upon re-reading that short, handwritten endorsement it appears to me that my reference to “police investigation” was considerably narrower a comment than I had intended because it refers rather too obliquely to the security concern that I was intending to advert to (as described further below).
[9] Following the issuance of my Protective Order, formal applications for the issuance of Certificates to the named trustees were filed in both estates. After payment of the requisite fees, the requested Certificates were issued and the files were retained in my Chambers pending further order on June 29, 2018.
[10] In July 2018, Mr. Donovan sought access to both estate files. He was advised that the files were not available to be viewed and he was told only that this was by judge’s order. In response, Mr. Donovan and the Toronto Star have now brought these two substantially identical applications seeking a variation or termination of my Protective Order and the full unsealing of the court files.
[11] As a result of an error on my part, my short endorsement grating the Protective Order was not made part of the public file. As a result, Mr. Donovan and the Toronto Star not only found themselves denied access to the court files, but they were also denied access to enough of the file to understand the reasons for that state of affairs. That was not my intention. The request for access came while I was on vacation and in no position to locate or deliver that endorsement. I regret that mix-up as it was always intended that my endorsement explaining the reason for confidentiality of the file should be available. Mr. Donovan has prepared a thorough and well-researched Notice of Application despite the handicap my administrative error produced.
Issue to be decided
[12] The issue to be decided is whether some or all of either of the two Estate files ought to be sealed. The burden to justify maintaining confidentiality orders rests with the respondents. In considering whether the respondents have met their burden, the following questions must be addressed:
(a) What are the applicable principles to be applied in determining whether to issue a confidentiality order? (b) What interest of the respondents would be served by granting a confidentiality order? (c) Are the interests to be protected sufficiently important to warrant interference with the open court principle? (d) 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?
Analysis and discussion
(i) What are the principles to be applied in determining whether to issue a confidentiality order?
[13] The principles applicable to this case have been ably summarized by Mr. Donovan in his factum and book of authorities. The applicable points I draw from these authorities are:
(a) The principle of open courts is inextricably tied to the rights guaranteed by s. 2(b) of the Charter: Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 SCR 522, 2002 SCC 41 at para. 36;
(b) The fundamental question for a court to consider in an application for a publication ban or a confidentiality order is whether, in the circumstances, the right to freedom of expression should be compromised and the analytical approach to the problem must be tailored to the specific rights and interests engaged in the case: Sierra Club at paras. 37-38;
(c) The basic purpose of the court’s approach is to ensure that the judicial discretion to deny public access is exercised in accordance with Charter principles: Sierra Club at para. 40;
(d) A confidentiality order should only be granted 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: Sierra Club at para. 53;
(e) Stated differently, “public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration”: Toronto Star Newspapers Ltd. v. Ontario, [2005] 2 SCR 188, 2005 SCC 41 at para. 4;
(f) These principles apply to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings, there being no fundamental distinction to be drawn between sealing orders, publication bans or other confidentiality orders made in the context of court proceedings, both civil and criminal: Toronto Star Newspapers Ltd. at para. 7; and
(g) The test is not whether a confidentiality order should be issued in order to “err on the side of caution” or “out of an abundance of caution” – the test is whether it is necessary to do so: R. v. Kossyrine & Vorobiov, 2011 ONSC 6081 at para. 16.
[14] It is fair to say that the burden to be satisfied by the party seeking a confidentiality order is a high one and the court must guard against any tendency to treat such applications as routine or de rigueur.
[15] 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 no Canadian wishes to bring about.
(ii) What interest of the respondents would be served by granting a confidentiality order?
[16] The respondents are the appointed trustees of the estates of Barry and Honey Sherman. These two have already suffered the unimaginable horror and indignity of being victims of a violent crime that took their lives. The respondents submit that the public has little to no tangible interest in delving into the personal affairs of the victims to discover in what state their private affairs were in at the time of their murder.
[17] Violent crime strongly engages the sympathies and the curiosity of the public. The public has an interest – a very acute interest - in knowing that justice is being done and being seen to be done. Every violent crime tears a hole in the social fabric that can only be mended by bringing the perpetrators to justice. The administration of criminal justice is fundamentally a public, not private matter. By contrast, the public has a much lower order interest in satisfying its curiosity to know intimate personal details of the lives and affairs of victims of crime. Some level of disclosure of those personal details is often an inevitable by-product of the system, but such disclosure would normally be justified as being part of the processes bringing the perpetrators of the crime to justice. In other words, the intrusion is in pursuit of the greater good of seeing justice done and the degree of intrusion can be calibrated to that which is necessary to see that end vindicated.
[18] The respondents submit that the private lives of these two victims have already been exposed to public view in lurid detail, details that have put the family through the anguish of fending off unfounded accusations that what they firmly believed was a sinister, targeted double murder was actually a murder suicide. They submit that there is no public interest to be served by invading the privacy and dignity of the victims and their family still further simply to add more fuel to the publicity fire. The same Legislature that has mandated the personal details required to be included in estate applications has also granted to the courts the discretion to make confidentiality orders in appropriate circumstances. The respondents therefore submit that there is a valid and distinct privacy interest raised by the facts of this case that takes it out of the ordinary, run of the mill estate administration matter.
[19] They further submit that the lack of tangible information about the motives and perpetrator or perpetrators of the crime creates a reasonable apprehension of risk to those who are the administrators or beneficiaries of the estate of these two victims. While significant details regarding the family, for example, have been made public, not all details that would find its way into a routine estate application have been the object of publicity. Opening to public review the names of spouses, the names of grandchildren, professional or residential addresses and other personal details poses a material risk of providing useful and heretofore unknown information in the event that the motives underlying the crime have not yet been exhausted.
[20] The applicants’ position is that the privacy issues raised by the respondents are common to every estate file, regardless of the cause of death and the law prescribes the information to be filed and the steps that need to be taken in administering an estate. Where the assistance of the courts is required, the open courts principle is there to ensure that the court’s intervention in such matters is beyond reproach.
[21] The applicants also submit that the fears for the safety of administrators and beneficiaries is ultimately a purely speculative fear that is not founded on any concrete evidence. Although deprived of access to the supporting affidavit of the respondents (made in the original estate file in which they were applicants), the applicants were advised that the respondents’ evidence did not contain a supporting affidavit from Toronto Police Service. Indeed, the supporting affidavit made no reference to receipt of warnings or opinions regarding the degree of risk from Toronto Police Service either.
[22] In my view, the respondents have reasonably and correctly identified two legitimate interests that they have to support the issuance or continuation of a confidentiality order.
[23] I am of the view that the interest of protecting the privacy and dignity of victims of crime and their loved ones is an important one. The degree of intrusion on that privacy and dignity has already been extreme and, I am sure, excruciating. By the same token, the apprehensions regarding risk, while necessarily speculative in these circumstances, are nevertheless reasonable. Without greater clarity regarding the motive underlying the crimes, it is impossible to acquire confidence that the motive is spent and might not be transported to some other who administers or is the beneficiary of the assets of the deceased.
[24] While it would have been preferable to include objective evidence of the gravity of that risk emanating from, for example, the police responsible for the investigation, the lack of such evidence is not fatal. The necessary inferences can be drawn from the known facts (and the unknown ones). The willingness of the perpetrator(s) of the crimes to resort to extreme violence to pursue whatever motive existed has been amply demonstrated. The risk of harm is foreseeable and the foreseeable harm is grave. I have no difficulty in concluding that the current uncertainty gives rise to a reasonable apprehension of risk on behalf of those known to have an interest in receiving or administering the assets of the deceased.
[25] Identifying the interests seeking protection is by no means the end of the inquiry. I must now proceed to weigh those interests against the very significant weight of the fundamental values underlying the open court principle.
(iii) Are the interests to be protected sufficiently important to warrant interference with the open court principle?
[26] 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.
[27] It is thus material to consider the nature of the public interest in reviewing the matters sought to be reviewed by the applicants in order fairly to weigh that public interest against the privacy and security concerns raised by the respondents. This requires me to examine the particular nature of estate files.
[28] There is no requirement to seek probate of a will in Ontario and, when sought, probate is not normally a litigious matter. This single fact sets court files in estate matters quite apart from the great bulk of court proceedings. The progress of estates files is fundamentally administrative in nature in most cases.
[29] It must also be observed that modern estate planning commonly involves employing a variety of techniques that may result in only fraction of the affairs of a particular estate findings its way into public court files. These techniques include:
(a) The use of “primary wills” confined to discrete categories of assets for which the court’s assistance in certifying probate is needed to demonstrate authority to deal with some categories of assets (primarily bank deposits, public securities held by brokers and real estate); (b) The use of “secondary wills” governing all other asset categories not intended to be subject to probate because of their nature; and (c) Joint tenancy and inter vivos trust arrangements that enable the transmission of significant assets outside of the estate process altogether.
[30] Details regarding the value of assets in an estate subject to public administration are provided in the application process primarily for the purpose of ensuring the assessment and collection of taxes. Details regarding the names and addresses of beneficiaries and administrators are provided for the purpose of ensuring that proper notice of proceedings has been (or can be) given to the extent required. I may reasonably conclude here that neither of those concerns underlie the public interest in the estate files of these two murder victims.
[31] The respondent estates urge me to assess the public interest in disclosure of information contained in this non-litigious estate file in the context of the limited aims of the requirement to provide such information in the first place. They submit that the public interest is a proportionately narrow one when considered in this light. Having regard to the veritable fire hose of private and personal details that has already flooded the public domain, there can be no public interest in delving still deeper into the private lives of the victims and subjecting their memory and their loved ones to still more stress, anxiety and loss of privacy. Further, the risk of harm is not fanciful. While it remains by its nature difficult to pin down, the risk being run is an exceptionally grave one. The private interests of the respondents very strongly outweigh public interest in further scrutiny of these essentially administrative files.
[32] The respondents strongly rely upon the decision of Wachowich C.J.Q.B. in Doe Estate, [2003] A.J. No. 1174 (A.C.Q.B.). In Doe, a significant beneficiary of an estate suffered from a mental handicap. There had been intense media attention on the life and death of the testator. The mental handicap of Mr. Doe combined with the large size of the estate led to the significant risk that publication of significant parts of the estate file “may cause various people to try to take advantage of Mr. Doe” (at para. 2). Given the lack of any legitimate public interest in the nature of the bequest to Mr. Doe, the significant degree of information already public regarding the circumstances of the death of the testator, Wachowich J. concluded that “the deleterious effects of the proposed order are substantially outweighed by the salutary effects on the rights and interests of the parties involved”.
[33] I am persuaded by the respondents’ reasoning when it comes to weighing of the interests that are at stake. Ordering confidentiality over the estate files removes little from the public domain that is not already “out there”. However, the additional details that are not already out there relate to matters where there is no reason to believe that there is a legitimate public interest. The full circle of persons connected to this tragedy – their names and addresses and their precise relationship to the deceased – are not generally known to the public. The 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.
[34] I conclude that the deleterious effects of applying confidentiality protection to these two estates files is substantially outweighed by the salutary effects on the rights and interests of the victims, their beneficiaries and the trustees of their estates.
(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?
[35] Where the court is persuaded on the evidence to depart from the open court principle, the departure should nevertheless be as circumscribed as reasonably possible having regard to the interest being protected. The restriction should be the minimum necessary to achieve the court’s objectives as delineated and no more.
[36] I have carefully reviewed the two estate files with an eye to determining whether there are parts of them that could be disclosed without revealing, directly or indirectly, the names, addresses or bequests left to beneficiaries of either estate or the names and addresses of the trustees. I have come to the conclusion that there is simply no meaningful part of either file that could be disclosed after making the number of redactions necessary to satisfy those conditions.
[37] This is not a very satisfactory conclusion because it suggests that even the routine administration of these two files must be placed beyond public scrutiny. The public does have an interest in ensuring that even routine files are administered in accordance with the law. Never is a very long time. An open-ended sealing order does not sit well with me in this case.
[38] If it is not possible to redact documents in the file to as to make some part of these files public, I must consider the element of time. A permanent order should be a last resort not a first resort particularly where the entire file is being shielded from scrutiny. Accordingly, I am issuing a sealing order in relation to both files for an initial period of two years only. The estates may apply to renew such orders if the circumstances then existing continue to warrant it. It may be that one or the other of the concerns raised will abate over time to the point that a meaningful portion of the files can be made public.
Disposition
[39] I therefore direct that the two files shall remain sealed for a period of two years subject to further order of the court.
[40] There shall be no order as to costs in this matter. I must take this opportunity to thank Mr. Donovan for the thoroughness of his materials and the skill of his presentation. Should he ever be minded to change professions, I am sure the Bar would be honoured to have him as a colleague!
S.F. Dunphy J. Date: August 2, 2018