Court Information

Ontario Court of Justice

Date: December 17, 2020

Court: Toronto Region, Metro North Court

Parties

Between:

TORONTO STAR NEWSPAPERS LIMITED (Applicant)

--- AND ---

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (Respondent)

Before the Court

Justice Leslie Pringle

Heard on: November 17, 2020; December 7, 2020 and December 10, 2020

Reasons for Judgement released on: December 17, 2020

Counsel

Kevin Donovan, Chief Investigative Reporter for the Toronto Star…on his own behalf for the Applicant

Peter Scrutton…Counsel for the Respondent

Reasons for Judgment

PRINGLE J:

1. Introduction and Overview

[1] Three years have passed since the double murder of Honey and Barry Sherman, whose bodies were found in their home on December 15, 2017. The police continue to actively investigate the case, with one full time officer devoted to the task. However, to date, no charges have been laid.

[2] This is the fifth application to unseal the numerous applications for search warrants and production orders in the case. With the exception of some early, (minimal), releases of information, all the search warrants, production orders and Informations to Obtain (ITOs) in the investigation have remained sealed. In each of the four prior applications, I held that the sealing orders continued to be necessary to protect the integrity of the ongoing police investigation. I found that partial disclosure of the materials with redactions was not feasible since it was impossible to predict what could safely be released without compromising the case.

[3] In this application, the police have agreed to unseal the first four ITOs, with some redactions. Det. Cst. Yim provided an affidavit explaining that given the current investigative avenues being pursued by the police, he is of the view that it is no longer necessary to maintain complete sealing. He believes that since the first four ITOs were at an early stage in the investigation and of a more general nature, they can be unsealed with redactions in a way that will not compromise the integrity of the police investigation.

[4] The Toronto Star maintains that the redactions are too cautious, and disputes that they are necessary. Mr. Donovan points out that the burden is on the respondent to justify any sealing and/or redaction. The presumption is in favour of openness and freedom of expression of the press, unless release would subvert the ends of justice.

[5] The Toronto Star further disagrees with the respondent's position that releasing the remaining eight ITOs would subvert the ends of justice. Mr. Donovan submits that the remaining eight ITOs should be released, or at the very least, unsealed with redactions.

2. The Process of Challenging the Redactions and Sealing Orders

[6] The real benefits of Mr. Donovan's continued challenge to the sealing orders should not be underestimated. Each time an application to unseal is brought, the case comes back to court to hold the police to account. Det. Cst. Yim prepares a publicly available affidavit summarizing the investigation since the last application to unseal, and he is cross-examined on the affidavit in open court. Although not a lawyer, Mr. Donovan is professional and persistent in his cross-examination, and he knows the subject matter of this case extremely well, having written a book on it. Invariably, Mr. Donovan publishes an account of the court case in the Toronto Star.

[7] This process, in and of itself, assists in shining some light on the investigation.

[8] Moreover, it was as a result of this application and the Toronto Star's persistence that Det. Cst. Yim acknowledged that he and members of his team determined they could unseal the first four ITOs with redactions without damage to the police investigation. If initially the police redactions have been overly cautious, I am firmly of the view that they have nonetheless been in good faith.

[9] The unsealing of the first four ITOs meant that a large amount of material was unsealed, but not all. Some redactions remain, meaning that information that the police did not want to reveal was blacked out. Although not knowing what was in the blacked out portions, Mr. Donovan was able to engage in an effective cross-examination of Det. Cst. Yim in court – redaction by redaction. As a result of this process, (and with the consent of Mr. Donovan), Det. Cst. Yim had some frank discussions with counsel for the respondent, Mr. Scrutton, and further unsealing was agreed upon. I made oral orders to unseal in accordance with those agreements on November 17, December 7 and December 10, 2020.

[10] In the reasons that follow, I will briefly explain my decision to unseal some further items in the first four ITOs.

[11] The remaining redactions in the four ITOs and the eight additional ITOs will remain sealed, for reasons I will explain below.

3. The Four Unsealed ITOs

3.1 Police Reasons for Redaction

[12] There were several reasons provided by the police in order to justify the redactions in the first four ITOs. I will briefly explain Det. Cst. Yim's evidence with respect to each category of reasons. I will also provide my ruling on each.

[13] The category of reasons in support of disputed redactions are:

• i. Holdback and hallmark information;
• ii. Contains information that could identify a potential person of interest (POI) and motive;
• iii. Statement could be prejudicial to innocent person;
• iv. Apotex business information;
• v. Medical information;
• vi. Estate information.

3.2 Holdback and Hallmark Information

[14] Det. Cst. Yim stated in his affidavit that if "holdback and hallmark" information was revealed, investigators would be unable to assess the reliability and credibility of tips, witness interviews and inculpatory or exculpatory statements by comparing them to independent evidence which has been held back from the public. This includes photos and descriptions of the scene and areas searched, and also detailed pathological observations relating to the victims. He stated that if all the details about the locations searched and the items seized are made available to the public, the perpetrator(s) of the crime would know exactly what items or evidence have not been obtained, and could take steps to frustrate attempt to collect further relevant evidence.

[15] He explained in court that, for example, if everyone knows what the crime scene looks like, police can't assess the reliability and credibility of witnesses who may make claims about this scene. Photographs and detailed descriptions of the crime scene or victims are often "held back" to assist with this kind of assessment, especially if the information is not likely to be widely known. Hall mark information including details that are specific or important to the case also fall into this category, such as a detailed description of an item in a particular location at the crime scene.

[16] Where information is widely known to be in the public domain, Det. Cst. Yim agreed to unseal it. For example, when Det. Sgt. Gomes gave a press conference and provided some details of the crime scene, Det. Cst. Yim unsealed that information if it was mirrored in the ITO.

[17] I have reviewed the remaining information that has been redacted in this category, and find that the redactions are legally justified to protect the integrity of the police investigation.

3.3 Potential Person of Interest (POI), Motive and Prejudice to Innocent Parties

[18] These categories can be dealt with together as they overlap and are intertwined, both factually and legally.

[19] Det. Cst. Yim testified that a POI is someone that police believe is important to the investigation, but there is insufficient evidence to label that person a suspect. That POI may be of real interest to police, depending on the course of the investigation. Someone who is a POI at one point of the investigation may be of less interest later, but further information could come to light that elevates them to a more focused status later, as the investigation is not static. If the police determined that someone was absolutely not a POI, Det. Cst. Yim advised that the police would unseal that information.

[20] The concern about identifying a POI is that this information could compromise the investigation. If the perpetrator(s) of the crime knew who was or was not seen as a POI, it could precipitate flight, destruction of evidence or other actions to frustrate the investigation. Further, the perpetrator(s) of the crime would learn which potential material witnesses had not been approached or interviewed by police, allowing the perpetrator(s) to possibly influence their participation in the investigation.

[21] There could be a number of potential POIs in this case, but Det. Cst. Yim was not prepared to answer who, or how many. He testified that sometimes a POI is identified by a person being interviewed, who suggests someone may be of interest to the police; other times, the person being interviewed may not implicate anyone directly, but their statement leads the police to determine that someone is a POI.

[22] The issue of motive can be closely tied to a POI. For example, if a crime were to be financially motivated, then revealing particular financial issues could also reveal particular POIs.

[23] The officer explained that there could be prejudice to an innocent person who points the finger at a POI. For example, if a person were to accuse someone of a crime that they didn't commit, that person would be angry at the accuser for what they believed to be a false accusation.

[24] In submissions, Mr. Donovan referred to this as finger-pointing that everyone understands is untested and unconfirmed. He relies on CBC and others v. HMQ., 2013 ONSC 6983 (sometimes known as the Alexander Lisi case), where Justice Nordheimer stated at para. 27:

Nevertheless, I appreciate that some information provided to the police might prove to be of some embarrassment to other people given that frank opinions were offered on relationships, motivations, and other matters but that type of embarrassment is not of a level of significance that it would normally be sufficient to trump the principle of openness. The same point applies to various speculative theories that were offered by some of these people regarding the activities of other persons. In considering the issue of harm to persons mentioned in the ITO, it seems to me that we have to operate on two basic assumptions. One is that the media will be responsible in what they choose to report and the other is that members of the public reading about this information will appreciate that it is untested and unconfirmed. In some instances, the information may amount to nothing more than backyard gossip and should be treated as such. (emphasis added)

[25] In addition, the Toronto Star points to the case of The Globe and Mail Inc v. R., 2017 ONSC 2407 (sometimes known as the Mark Norman case), at para. 29 where Justice Phillips found:

As such, the opinions in an ITO would be understood to be drawn from a body of information that falls short of reasonable and probable ground to even make an arrest, let alone proof beyond reasonable doubt of criminal culpability. Surely police opinion is taken with a healthy grain of salt by any reasonably informed member of the public. In every trial, the police obviously have an opinion about what happened. (emphasis added)

[26] I would not equate the finger-pointing or identification of potential POIs in this case to harmless "backyard gossip". Even if it is sometimes speculative, this is a grisly double murder investigation with high stakes for potential POIs, and for any person pointing a finger at a POI. Nor can I find in the context of this case that there is no harm to the police investigation in disclosing the "police opinion" about what did or did not happen. This is a high profile case where the public has a very significant interest in the police solving the crime. After three years with no charges laid, police theories and opinions will surely be subject to close scrutiny by both the public and the perpetrator(s) of the crime, and not be taken simply with a "grain of salt". Unsealing these redactions about POIs, motive and police theory of the case at this stage of the investigation will harm the investigation and could prejudice innocent persons.

[27] Having reviewed the contents of all the ITOs in this case, I find that for the most part, the suggested redactions in this category are necessary.

[28] I do not see redaction of the information in the ITO #3, Yim January 2018 at p.25, Section 9(d)(vi) to be necessary. It relates to how the person being interviewed met the Shermans. This kind of general background information is unredacted in other statements of similar people in the category of "persons employed by the Shermans", and may simply have been overlooked for unsealing in this statement. Accordingly, subparagraph (vi) will be unsealed as follows:

• ITO #3, Yim January 2018 at p.25, para. 9(d)(vi)

3.4 Apotex Business Information

[29] Two redactions are categorized as Apotex business information. I agree these are appropriate redactions.

[30] In these redactions in ITO#2, Devine January 2018 at p.76, para. 77(i) to (n) and ITO#4, Yim February 2018 at p.60, para. (aa)(xviii to xxiii), the same interview of a person is summarized by the affiant in substantially the same terms. Company information and a lawsuit are discussed, including persons involved. In ITO#4, further company information is discussed in (xxv). These topics may be confidential information. Moreover, it is not surprising that the inner workings of the Apotex business are important background for the police investigation, since Barry Sherman was the chairman and CEO of Apotex at the time of his murder. While this business information may not reveal potential POIs, I find that unsealing at this stage could reveal private Apotex information to the detriment of the company or its business. It could also prejudice the interests of innocent persons.

[31] At this stage of the investigation, I find that it would subvert the ends of justice to unseal these redactions.

3.5 Medical Information

[32] Certain redactions have been made by the police on the basis that they are private details of medical information relating to the victims during their lifetime. These details have no relevance to the investigation, but are redacted out of concerns for privacy only.

[33] In some cases, there may be appropriate and necessary exceptions to the public's "right to know". In the Lisi case cited above, Justice Nordheimer found that some details in the ITO there touched on events involving the wife of the mayor at the time, Rob Ford, and did not need to be disclosed. At para. 30 Justice Nordheimer said:

The other exception I would permit is regarding certain references made in the ITO to events involving the Mayor's wife who apparently had some personal issues during the course of the time covered by the ITO. I do not see any reason at this stage why her personal circumstances need to be made public. They appear only to have been included to place the Mayor at a particular place and/or with respect to contacts at a particular time but the underlying reasons for the inclusion of those details regarding the Mayor's wife seem to be of no moment whatsoever to the investigation. In that narrow instance, it seems to me that the specific incidence of potential personal embarrassment is sufficiently great, and its assistance to the public's necessary knowledge relating to the search warrants sufficiently low, to justify maintaining the ban on access to those few items.

[34] I appreciate that there may be privacy concerns in medical information that is potentially intrusive or intimately personal, where redaction should at least be considered. However, the details here are not at all intimate or intrusive. Rather, they catalogue a variety of ailments typical of someone of the age of the Shermans, and a medication taken by one of them. These details are not relevant to the investigation. While they are "medical information", I do not find that they warrant redaction. These redactions will be unsealed as follows:

• ITO #2, Devine January 2018 at p.80, para. 82(a)
• ITO #3, Yim January 2018 at p.25, Section 9(d)(iv) and (v)
• ITO #3, Yim January 2018 at p.35, Section 9(j)(xvii)
• ITO #4, Yim February 2018 at p.32, Section 9(i)(xix)
• ITO #4, Yim February 2018 at p.50, Section 9(u)(xvii)
• ITO#4, Yim February 2018 at p.54, Section 9(x)(xiii)
• ITO#4, Yim February 2018 at p.55, Section 9(x)(xviii)
• ITO#4, Yim February 2018 at p.61, Section 9(aa)(xlvii)

[35] Where medical information could affect the integrity of the investigation, for example, post-mortem medical information, it will remain sealed.

3.6 Estate Information

[36] A redaction in ITO#4, Yim February 2018 at p.60, Section 9(aa)(xxviii) is indicated as estate information. On October 6, 2020, the Supreme Court of Canada heard an appeal relating to a sealing order initially made in relation to the Sherman estate files in the Superior Court, which was then reversed by the Ontario Court of Appeal. On appeal by the Sherman estate, the Supreme Court has reserved its decision. In the interim, the estate files remain sealed.

[37] Det. Cst. Yim advised Mr. Donovan and the court that should the Supreme Court unseal the estate files, the police would agree to unseal subparagraph (xxviii).

3.7 Conclusion on the Redactions in the Four ITOs

[38] At the end of the day, Mr. Donovan submitted that many of the justifications for the redactions were vague, overly cautious and lacked specificity. However, I agree with Mr. Scrutton that at the investigative stage, the risks to the investigation may be more difficult to articulate with precision. Moreover, I think it is fair to say that it is not necessarily the age of the investigation that governs the analysis, but rather the stage of the investigation. Here, the investigation is large, active and ongoing. No charges have been laid, and material produced as a result of authorizations obtained as recently as September 4, 2020 is still being analyzed. As much as everyone would like to see the crime solved and charges laid, this case is still in the investigative stage.

[39] In Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, Justice Fish said at para. 8:

The Dagenais/Mentuck test, though applicable at every stage of the judicial process, was from the outset meant to be applied in a flexible and contextual manner. A serious risk to the administration of justice at the investigative stage, for example, will often involve considerations that have become irrelevant by the time of trial. On the other hand, the perceived risk may be more difficult to demonstrate in a concrete manner at that early stage. Where a sealing order is at that stage solicited for a brief period only, this factor alone may well invite caution in opting for full and immediate disclosure. (my emphasis)

[40] Everyone is acutely aware that the three year investigation here has not resulted in sealing for a "brief period". However, this case is not alone in tolerating a long sealing period. In Re Winnipeg Free Press, 2006 MBQB 43, the sealing order was maintained even though the murder of the victim had occurred 5 years earlier.

[41] The analysis for unsealing is case and context specific. In the circumstances of this case and this investigation, I am satisfied that the redactions in the first four ITOs are justified to protect the integrity of the police investigation, and to a lesser extent as set out above, to avoid prejudicing the interests of innocent persons, including Apotex business information.

4. The Remaining Eight ITOs

[42] Det. Cst. Yim and counsel Mr. Scrutton are resisting the Toronto Star's application to unseal the remaining eight ITOs. The officer's affidavit explained that while the first four ITOs were of a more general nature up until February 2018, the subsequent eight are of a more focused nature. By the time of the next ITO in April 2018, Det. Cst. Yim testified that the start of a pattern began to emerge, and now, the police have a better idea where the investigation is headed and what police are currently pursuing.

[43] Paragraph 18 of the officer's affidavit explains the active nature of the investigation at this time:

The material produced in respect of the most recent authorizations is still being reviewed and investigated. The entire case file consists of more than 165 GB of data, which includes but is not limited to scanned documents, word processing documents, spread sheets, pictures, audio files and video. The information in the case files continues to be reviewed, both in isolation and in relation to any new incoming information. The ongoing review of information has led to more avenues of investigation and the creation of more investigative actions. Additionally, it has resulted in the contemplation of more judicial authorizations. The results from judicial authorizations have yielded new evidence and have assisted investigators in corroborating existing evidence, such as witness statements, tips and video surveillance.

[44] Paragraph 19 sets out the reasons why the officer believes the subsequent eight ITOs should remain sealed:

• judicial authorizations have permitted investigators to search many different places and devices, and required the production of many different records. If all of the details about the locations that have been searched, and the items that have been seized, are made available to the public, the perpetrator(s) of the crime would know exactly what items or evidence have not been obtained, and could take steps to frustrate attempts to collect relevant evidence;

• additional applications for judicial authorizations are being contemplated;

• the perpetrator(s) of the crime would learn, from these materials, which potential material witnesses have not been approached or interviewed, allowing the perpetrator(s) to approach these people with a view to influencing their participation in the investigation;

• the perpetrator(s) would know whether the police have identified any suspects or persons of interest, which could precipitate the perpetrator(s)' flight, or other actions designed to frustrate the investigation or prosecution;

• any investigative actions that are surreptitious or covert in nature could be compromised;

• investigators would be unable to assess the reliability and credibility of tips, witness interviews, and inculpatory or exculpatory statements by comparing them to independent evidence which has not been publicly disclosed to facilitate this very purpose (i.e. "hold back" or "hallmark" information); and

• public dissemination of the contents of the investigation could contaminate subsequent witness statements, either unwittingly or by enabling witnesses to provide an account of events that coheres with other evidence known to them; some of the contents of the sealed material could prejudice the interests of innocent persons, were it to be released; and additionally,

• the unsealing of the judicial authorizations could indicate the direction of the investigation and allow persons to surmise the investigative avenues that the police are pursuing or are not pursuing.

[45] Det. Cst. Yim re-iterated in court that unsealing the remaining ITOs at this stage could reveal the investigative avenues that have been pursued. He also explained this in more detail at paragraph 32 of his affidavit:

In my view, it is not possible to identify and separate aspects of these applications for the purpose of public access without compromising the ongoing investigation. The material that is contained in them is there for the purposes of supporting the grounds for issuance of each respective authorization. The ITOs summarize information about specific aspects of the investigation that cannot be divulged at this juncture, as well as evidence that has been collected that is relevant to the investigative avenues that have been and are being pursued. I remain of the view that disclosure of this material would, at this stage, compromise the integrity of the investigation.

[46] In relation to the remaining eight ITOs, I repeat what I said in a prior application to unseal in reasons dated April 30, 2019:

…the Informations to Obtain in this case are not easily severed into discrete parts or issues for redaction and release at this time. D.C. Yim's evidence reveals that the police are engaged in a continuing analysis of new information in conjunction with previously obtained information. Based on my knowledge of the history and current state of the investigation from the Informations to Obtain, I am satisfied that this analysis is active, ongoing and meaningful. Accordingly, at this stage, I find it is impossible to predict or determine what can safely be untangled for release without compromising the investigation.

[47] In his factum, Mr. Donovan opened his submissions with this quote from Toronto Star Newspapers Ltd, v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188:

In any constitutional climate, the administration of justice thrives on exposure to light - and withers under a cloud of secrecy.

[48] I agree with this proposition. Nonetheless, there are times when premature exposure to light will subvert the ends of justice. This police investigation is one example – the investigation itself will wither and die if it is made public now. No doubt, the public is interested in police accountability, but the public is also interested in a successful investigation where the perpetrator(s) of this double murder are brought to justice.

[49] At this stage, the reasons for sealing the remaining eight ITOs continue to outweigh the deleterious effects on the rights of the press to freedom of expression.

5. Going Forward

[50] I once again invite the Toronto Star and Mr. Donovan to continue to challenge the sealing orders that remain. Even the passage of time every six months is an appropriate basis for re-applying. Moreover, if the investigation stalls, if charges are laid, or if there is some other material change in circumstance, the application can be renewed. As indicated above, this process itself is beneficial in shining some light on the investigation and encouraging police accountability.

[51] During the course of this application, I made an oral order unsealing the first four ITOs as redacted to November 17, 2020, and further oral orders unsealing more redactions on December 7 and December 10, 2020. I will today sign a written order unsealing the additional redactions set out in these reasons. They are also listed in Appendix A, attached to these reasons.

[52] Anyone wishing access to the unsealed ITOs as redacted should contact Peter Scrutton, counsel, Crown Law Office, Criminal.

Justice Leslie Pringle

Released to the parties on December 17, 2020

Appendix A: Chart of Additional Unsealing

ITO #2, Devine January 2018

• p.80, para. 82(a)

ITO #3, Yim January 2018

• p.25, Section 9(d)(iv) and (v)
• p.25, Section 9(d)(vi)
• p.35, Section 9(j)(xvii)

ITO #4, Yim February 2018

• p.32, Section 9(i)(xix)
• p.50, Section 9(u)(xvii)
• p.54, Section 9(x)(xiii)
• p.55, Section 9(x)(xviii)
• p.61, Section 9(aa)(xlvii)