SUPREME COURT OF CANADA
Appeal Heard: October 6, 2020 Judgment Rendered: June 11, 2021 Docket: 38695
Between : Estate of Bernard Sherman and Trustees of the Estate and Estate of Honey Sherman and Trustees of the Estate Appellants and Kevin Donovan and Toronto Star Newspapers Ltd. Respondents - and - Attorney General of Ontario, Attorney General of British Columbia, Canadian Civil Liberties Association, Income Security Advocacy Centre, Ad IDEM/Canadian Media Lawyers Association, Postmedia Network Inc., CTV, a Division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, The Globe and Mail Inc., Citytv, a division of Rogers Media Inc., British Columbia Civil Liberties Association, HIV & AIDS Legal Clinic Ontario, HIV Legal Network and Mental Health Legal Committee Interveners
Coram: Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 108)
Kasirer J. (Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe and Martin JJ. concurring)
Estate of Bernard Sherman and Trustees of the Estate and
Estate of Honey Sherman and Trustees of the Estate Appellants
v.
Kevin Donovan and
Toronto Star Newspapers Ltd. Respondents
and
Attorney General of Ontario,
Attorney General of British Columbia,
Canadian Civil Liberties Association,
Income Security Advocacy Centre,
Ad IDEM/Canadian Media Lawyers Association,
Postmedia Network Inc., CTV, a Division of Bell Media Inc.,
Global News, a division of Corus Television Limited Partnership,
The Globe and Mail Inc., Citytv, a division of Rogers Media Inc.,
British Columbia Civil Liberties Association,
HIV & AIDS Legal Clinic Ontario, HIV Legal Network and Mental Health Legal Committee Interveners
Indexed as: Sherman Estate v. Donovan
2021 SCC 25
File No.: 38695.
2020: October 6; 2021: June 11.
Present: Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for ontario
Courts — Open court principle — Sealing orders — Discretionary limits on court openness — Important public interest — Privacy — Dignity — Physical safety — Unexplained deaths of prominent couple generating intense public scrutiny and prompting trustees of estates to apply for sealing of probate files — Whether privacy and physical safety concerns advanced by estate trustees amount to important public interests at such serious risk to justify issuance of sealing orders.
A prominent couple was found dead in their home. Their deaths had no apparent explanation and generated intense public interest. To this day, the identity and motive of those responsible remain unknown , and the deaths are being investigated as homicides . The estate trustees sought to stem the intense press scrutiny prompted by the events by seeking sealing orders of the probate files. Initially granted, the sealing orders were challenged by a journalist who had reported on the couple's deaths , and by the newspaper for which he wrote. The application judge sealed the probate files, concluding that the harmful effects of the sealing orders were substantially outweighed by the salutary effects on privacy and physical safety interests. The Court of Appeal unanimously allowed the appeal and lifted the sealing orders. It concluded that the privacy interest advanced lacked a public interest quality, and that there was no evidence of a real risk to anyone's physical safety.
Held : The appeal should be dismissed.
The estate trustees have failed to establish a serious risk to an important public interest under the test for discretionary limits on court openness. As such, the sealing orders should not have been issued. Open courts can be a source of inconvenience and embarrassment, but this discomfort is not, as a general matter, enough to overturn the strong presumption of openness. That said, personal information disseminated in open court can be more than a source of discomfort and may result in an affront to a person's dignity. Insofar as privacy serves to protect individuals from this affront, it is an important public interest and a court can make an exception to the open court principle if it is at serious risk. In this case, the risks to privacy and physical safety cannot be said to be sufficiently serious.
Court proceedings are presumptively open to the public. Court openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of Canadian democracy. Reporting on court proceedings by a free press is often said to be inseparable from the principle of open justice. The open court principle is engaged by all judicial proceedings, whatever their nature. Matters in a probate file are not quintessentially private or fundamentally administrative. Obtaining a certificate of appointment of estate trustee in Ontario is a court proceeding engaging the fundamental rationale for openness — discouraging mischief and ensuring confidence in the administration of justice through transparency — such that the strong presumption of openness applies.
The test for discretionary limits on court openness is directed at maintaining the presumption while offering sufficient flexibility for courts to protect other public interests where they arise. In order to succeed, 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 prevent 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.
The recognized scope of what interests might justify a discretionary exception to open courts has broadened over time and now extends generally to important public interests. The breadth of this category transcends the interests of the parties to the dispute and provides significant flexibility to address harm to fundamental values in our society that unqualified openness could cause . While there is no closed list of important public interests, courts must be cautious and alive to the fundamental importance of the open court rule when they are identifying them. Determining what is an important public interest can be done in the abstract at the level of general principles that extend beyond the parties to the particular dispute. By contrast, whether that interest is at serious risk is a fact‑based finding that is necessarily made in context. The identification of an important interest and the seriousness of the risk to that interest are thus theoretically separate and qualitatively distinct operations.
Privacy has been championed as a fundamental consideration in a free society , and its public importance has been recognized in various settings. Though an individual's privacy will be pre‑eminently important to that individual, the protection of privacy is also in the interest of society as a whole. Privacy therefore cannot be rejected as a mere personal concern: some personal concerns relating to privacy overlap with public interests.
However, cast too broadly, the recognition of a public interest in privacy could threaten the strong presumption of openness. The privacy of individuals will be at risk in many court proceedings. Furthermore, privacy is a complex and contextual concept, making it difficult for courts to measure. Recognizing an important interest in privacy generally would accordingly be unworkable.
Instead, the public character of the privacy interest involves protecting individuals from the threat to their dignity. Dignity in this sense involves the right to present core aspects of oneself to others in a considered and controlled manner; it is an expression of an individual's unique personality or personhood. This interest is consistent with the Court's emphasis on the importance of privacy, but is tailored to preserve the strong presumption of openness.
Privacy as predicated on dignity will be at serious risk in limited circumstances. Neither the sensibilities of individuals nor the fact that openness is disadvantageous, embarrassing or distressing to certain individuals will generally on their own warrant interference with court openness. Dignity will be at serious risk only where the information that would be disseminated as a result of court openness is sufficiently sensitive or private such that openness can be shown to meaningfully strike at the individual's biographical core in a manner that threatens their integrity. The question is whether the information reveals something intimate and personal about the individual, their lifestyle or their experiences.
In cases where the information is sufficiently sensitive to strike at an individual's biographical core, a court must then ask whether a serious risk to the interest is made out in the full factual context of the case. The seriousness of the risk may be affected by the extent to which information is disseminated and already in the public domain, and the probability of the dissemination actually occurring. The burden is on the applicant to show that privacy, understood in reference to dignity, is at serious risk; this erects a fact‑specific threshold consistent with the presumption of openness.
There is also an important public interest in protecting individuals from physical harm, but a discretionary order limiting court openness can only be made where there is a serious risk to this important public interest. Direct evidence is not necessarily required to establish a serious risk to an important public interest, as objectively discernable harm may be identified on the basis of logical inferences. But this process of inferential reasoning is not a licence to engage in impermissible speculation. It is not just the probability of the feared harm, but also the gravity of the harm itself that is relevant to the assessment of serious risk. Where the feared harm is particularly serious, the probability that this harm materialize need not be shown to be likely, but must still be more than negligible, fanciful or speculative. Mere assertions of grave physical harm are therefore insufficient.
In addition to a serious risk to an important interest, it must be shown that the particular order sought is necessary to address the risk and that the benefits of the order outweigh its negative effects as a matter of proportionality. This contextual balancing, informed by the importance of the open court principle, presents a final barrier to those seeking a discretionary limit on court openness for the purposes of privacy protection.
In the present case, the risk to the important public interest in privacy, defined in reference to dignity, is not serious. The information contained in the probate files does not reveal anything particularly private or highly sensitive. It has not been shown that it would strike at the biographical core of the affected individuals in a way that would undermine their control over the expression of their identities. Furthermore, the record does not show a serious risk of physical harm. The estate trustees asked the application judge to infer not only the fact that harm would befall the affected individuals, but also that a person or persons exist who wish to harm them. To infer all this on the basis of the deaths and the association of the affected individuals with the deceased is not a reasonable inference but is speculation.
Even if the estate trustees had succeeded in showing a serious risk to privacy, a publication ban — less constraining on openness than the sealing orders — would have likely been sufficient as a reasonable alternative to prevent this risk. As a final barrier, the estate trustees would have had to show that the benefits of any order necessary to protect from a serious risk to the important public interest outweighed the harmful effects of the order.
Cases Cited
Applied: Sierra Club of Canada v. Canada (Minister of Finance) , 2002 SCC 41 , [2002] 2 S.C.R. 522; referred to: Canadian Broadcasting Corp. v. New Brunswick (Attorney General) , [1996] 3 S.C.R. 480; Vancouver Sun (Re) , 2004 SCC 43 , [2004] 2 S.C.R. 332; Khuja v. Times Newspapers Ltd ., [2017] UKSC 49, [2019] A.C. 161 ; Edmonton Journal v. Alberta (Attorney General ) , [1989] 2 S.C.R. 1326; Dagenais v. Canadian Broadcasting Corp. , [1994] 3 S.C.R. 835; R. v. Mentuck , 2001 SCC 76 , [2001] 3 S.C.R. 442; Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53 , [2002] 2 S.C.R. 773; Dagg v. Canada (Minister of Finance) , [1997] 2 S.C.R. 403; R. v. Henry , 2009 BCCA 86 , 270 B.C.A.C. 5; Attorney General of Nova Scotia v. MacIntyre , [1982] 1 S.C.R. 175; A.B. v. Bragg Communications Inc. , 2012 SCC 46 , [2012] 2 S.C.R. 567; Toronto Star Newspapers Ltd. v. Ontario , 2005 SCC 41 , [2005] 2 S.C.R. 188; Re Southam Inc. and The Queen (No.1) (1983), 41 O.R. (2d) 11 ; R. v. Oakes , [1986] 1 S.C.R. 103; Otis v. Otis (2004), 7 E.T.R. (3d) 221 ; H. (M.E.) v. Williams , 2012 ONCA 35 , 108 O.R. (3d) 321 ; F.N. (Re) , 2000 SCC 35 , [2000] 1 S.C.R. 880 ; R. v. Dyment , [1988] 2 S.C.R. 417; Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401 , 2013 SCC 62 , [2013] 3 S.C.R. 733 ; Toronto Star Newspaper Ltd. v. R. , 2012 ONCJ 27 , 289 C.C.C. (3d) 549; Douez v. Facebook, Inc. , 2017 SCC 33 , [2017] 1 S.C.R. 751 ; R. v. Paterson (1998) , 102 B.C.A.C. 200; S. v. Lamontagne , 2020 QCCA 663 ; Himel v. Greenberg , 2010 ONSC 2325 , 93 R.F.L. (6th) 357; A.B. v. Canada (Citizenship and Immigration) , 2017 FC 629 ; R. v. Pickton , 2010 BCSC 1198 ; Lac d'Amiante du Québec Ltée v. 2858‑0702 Québec Inc. , 2001 SCC 51 , [2001] 2 S.C.R. 743; 3834310 Canada inc. v. Chamberland ; R. v. Spencer , 2014 SCC 43 , [2014] 2 S.C.R. 212; Coltsfoot Publishing Ltd. v. Foster‑Jacques , 2012 NSCA 83 , 320 N.S.R. (2d) 166; Goulet v. Transamerica Life Insurance Co. of Canada , 2002 SCC 21 , [2002] 1 S.C.R. 719; Godbout v. Longueuil (Ville de) , [1995] R.J.Q. 2561, aff'd , [1997] 3 S.C.R. 844; A. v. B. ; R. v. Plant , [1993] 3 S.C.R. 281; R. v. Tessling , 2004 SCC 67 , [2004] 3 S.C.R. 432; R. v. Cole , 2012 SCC 53 , [2012] 3 S.C.R. 34; Work Safe Twerk Safe v. Her Majesty the Queen in Right of Ontario , 2021 ONSC 1100 ; Fedeli v. Brown , 2020 ONSC 994 ; R. v. Marakah , 2017 SCC 59 , [2017] 2 S.C.R. 608; R. v. Quesnelle , 2014 SCC 46 , [2014] 2 S.C.R. 390; R. v. Mabior , 2012 SCC 47 , [2012] 2 S.C.R. 584; R. v. Chanmany , 2016 ONCA 576 , 352 O.A.C. 121; X. v. Y. , 2011 BCSC 943 , 21 B.C.L.R. (5th) 410 ; R. v. Esseghaier , 2017 ONCA 970 , 356 C.C.C. (3d) 455 .
I. Overview
[ 1 ] The open court principle is one of the hallmarks of a democratic society. It is woven into the constitutional fabric of Canada and is connected to the guarantee of freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms . It serves the important public interest of maintaining an independent, impartial and credible judiciary and has the effect of subjecting the exercise of judicial power to public scrutiny. Privacy is also a fundamental value. A person's right to control the dissemination of personal information finds protection in Canadian law. The question before the Court is whether, in this case, the important interests in privacy and physical safety of the affected individuals justified granting exceptional sealing orders on the court probate files.
[ 2 ] A prominent couple was found dead in their home. Their deaths generated intense public interest, and the estate trustees sought to stem the intense press scrutiny by seeking sealing orders on the estate's probate files. Initially granted, the sealing orders were challenged by a journalist and the newspaper for which he wrote. The application judge upheld the sealing orders. The Court of Appeal set them aside.
[ 3 ] For the reasons that follow, I agree with the Court of Appeal that the sealing orders should be lifted. To succeed, the Trustees had to show that the open court principle poses a serious risk to an important public interest. The Trustees invoke privacy and physical safety as the important interests at stake.
[ 4 ] I disagree with the Trustees that privacy, understood broadly as the right to keep personal information from public view, is an important public interest within the meaning of the test for discretionary limits on court openness from Sierra Club of Canada v. Canada (Minister of Finance) , 2002 SCC 41 , [2002] 2 S.C.R. 522. Insofar as privacy can qualify as an important public interest under this test, it does so because of its connection to the protection of human dignity, understood to involve a person's right to present a core aspect of their identity. It is the narrower dignity dimension of privacy that is an important public interest in this context, rather than the broad right to control personal information generally.
[ 5 ] Turning to the facts of this case, the information in the estate files does not strike at the core identity of the affected persons — beneficiaries and trustees of the estates — in a way that threatens their dignity. The Trustees have not demonstrated how lifting the sealing orders would occasion an affront to dignity. On that basis, there is no serious risk to the important public interest in privacy, insofar as it relates to dignity, in the circumstances of this case.
[ 6 ] The Trustees claim, independently, that there is an important interest in the physical safety of the beneficiaries and trustees which is at serious risk. The physical safety of individuals is plainly an important public interest. Yet the factual basis advanced to show that there is a serious risk to this interest — a risk, moreover, created or exacerbated by opening the estate court files to the public — is insufficient. In the circumstances of this case, the risk of physical harm that is alleged to flow from the opening of these files to public scrutiny is based on speculation, not on proper inference or objective evidence.
[ 7 ] The conclusion that neither the privacy interest nor the physical safety interest is at serious risk, on the facts of this case, is dispositive. It is therefore unnecessary to consider the second and third requirements of the test from Sierra Club .
[ 8 ] In this case, and with this interest in mind, it cannot be said that the risk to privacy is sufficiently serious to overcome the strong presumption of openness. The same is true of the risk to physical safety here. The Court of Appeal was right in the circumstances to set aside the sealing orders and I would therefore dismiss the appeal.
II. Background
[ 9 ] Prominent in business and philanthropic circles, Bernard Sherman and Honey Sherman were found dead in their Toronto home in December of 2017. Their deaths had no apparent explanation and generated intense public interest and press scrutiny. In January of the following year, the Toronto Police Service announced that the deaths were being investigated as homicides. As the present matter came before the courts, the identity and motive of those responsible remained unknown.
[ 10 ] The couple's estates and estate trustees (collectively the "Trustees") [1] sought to stem the intense press scrutiny prompted by the events. The Trustees hoped to see to the orderly transfer of the couple's property, at arm's length from what they saw as the public's morbid interest in the unexplained deaths and the curiosity around apparently great sums of money involved.
[ 11 ] When the time came to obtain certificates of appointment of estate trustee from the Superior Court of Justice, the Trustees sought a sealing order so that the estate trustees and beneficiaries ("affected individuals") might be spared any further intrusions into their privacy and be protected from what was alleged to be a risk to their safety. The Trustees argued that if the information in the court files was revealed to the public, the safety of the affected individuals would be at risk and their privacy compromised as long as the deaths were unexplained and those responsible for the tragedy remained at large. In support of their request, 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 in the circumstances.
[ 12 ] Initially granted, the sealing orders were challenged by Kevin Donovan, a journalist who had written a series of articles on the couple's deaths, and Toronto Star Newspapers Ltd., for which he wrote (collectively the "Toronto Star") . [2] The Toronto Star said the orders violated its constitutional rights of freedom of expression and freedom of the press, as well as the attending principle that the workings of the courts should be open to the public as a means of guaranteeing the fair and transparent administration of justice.
III. Proceedings Below
A. Ontario Superior Court of Justice, 2018 ONSC 4706 , 41 E.T.R. (4th) 126 (Dunphy J.)
[ 13 ] In addressing whether the circumstances warranted interference with the open court principle, the application judge relied on this Court's judgment in Sierra Club . He noted that a confidentiality order should only be granted when: "(1) such an order is necessary . . . 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" (para. 13(d)).
[ 14 ] The application judge considered whether the Trustees' interests would be served by granting the sealing orders. In his view, the Trustees had correctly identified two legitimate interests in support of making an exception to the open court principle: "protecting the privacy and dignity of victims of crime and their loved ones" and "a reasonable apprehension of risk on behalf of those known to have an interest in receiving or administering the assets of the deceased" (paras. 22‑25). With respect to the first interest, the application judge found that "[t]he degree of intrusion on that privacy and dignity has already been extreme and . . . excruciating" (para. 23). For the second interest, although he noted that "it would have been preferable to include objective evidence of the gravity of that risk from, for example, the police responsible for the investigation", he concluded that "the lack of such evidence is not fatal" (para. 24). Rather, the necessary inferences could be drawn from the circumstances notably the "willingness of the perpetrator(s) of the crimes to resort to extreme violence to pursue whatever motive existed" ( ibid. ). He concluded that the "current uncertainty" was the source of a reasonable apprehension of the risk of harm and, further, that the foreseeable harm was "grave" ( ibid. ).
[ 15 ] The application judge ultimately accepted the Trustees' submission that these interests "very strongly outweigh" what he called the proportionately narrow public interest in the "essentially administrative files" at issue (paras. 31 and 33). He therefore concluded that the harmful effects of the sealing orders were substantially outweighed by the salutary effects on the rights and interests of the affected individuals.
[ 16 ] Finally, the application judge considered what order would protect the affected individuals while infringing upon the open court principle to the minimum extent possible. He decided no meaningful part of either file could be disclosed if one were to make the redactions necessary to protect the interests he had identified. Open‑ended sealing orders did not, however, sit well with him. The application judge therefore sealed the files for an initial period of two years, with the possibility of renewal.
B. Court of Appeal for Ontario, 2019 ONCA 376 , 47 E.T.R. (4th) 1 (Doherty, Rouleau and Hourigan JJ.A.)
[ 17 ] The Toronto Star's appeal was allowed, unanimously, and the sealing orders were lifted.
[ 18 ] The Court of Appeal considered the two interests advanced before the application judge in support of the orders to seal the probate files. As to the need to protect the privacy and dignity of the victims of violent crime and their loved ones, it recalled that the kind of interest that is properly protected by a sealing order must have a public interest component. Citing Sierra Club , the Court of Appeal wrote that "[p]ersonal concerns cannot, without more, justify an order sealing material that would normally be available to the public under the open court principle" (para. 10). It concluded that the privacy interest for which the Trustees sought protection lacked this quality of public interest.
[ 19 ] While it recognized the personal safety of individuals as an important public interest generally, the Court of Appeal wrote that there was no evidence in this case that could warrant a finding that disclosure of the contents of the estate files posed a real risk to anyone's physical safety. The application judge had erred on this point: "the suggestion that the beneficiaries and trustees are somehow at risk because the Shermans were murdered is not an inference, but is speculation. It provides no basis for a sealing order" (para. 16).
[ 20 ] The Court of Appeal concluded that the Trustees had failed the first stage of the test for obtaining orders sealing the probate files. It therefore allowed the appeal and set aside the orders.
C. Subsequent Proceedings
[ 21 ] The Court of Appeal's order setting aside the sealing orders has been stayed pending the disposition of this appeal. The Toronto Star brought a motion to adduce new evidence on this appeal, comprised of land titles documents, transcripts of the cross‑examination of a detective on the murder investigation, and various news articles. This evidence, it says, supports the conclusion that the sealing orders should be lifted. The motion was referred to this panel.
IV. Submissions
[ 22 ] The Trustees have appealed to this Court seeking to restore the sealing orders made by the application judge. In addition to contesting the motion for new evidence, they maintain that the orders are necessary to prevent a serious risk to the privacy and physical safety of the affected individuals and that the salutary effects of sealing the court probate files outweigh the harmful effects of limiting court openness. The Trustees argue that two legal errors led the Court of Appeal to conclude otherwise.
[ 23 ] First, they submit the Court of Appeal erred in holding that privacy is a personal concern that cannot, without more, constitute an important interest under Sierra Club . The Trustees say the application judge was right to characterize privacy and dignity as an important public interest which, as it was subject to a serious risk, justified the orders. They ask this Court to recognize that privacy in itself is an important public interest for the purposes of the analysis.
[ 24 ] Second, the Trustees submit that the Court of Appeal erred in overturning the application judge's conclusion that there was a serious risk of physical harm. They argue that the Court of Appeal failed to recognize that courts have the ability to draw reasonable inferences by applying reason and logic even in the absence of specific evidence of the alleged risk.
[ 25 ] The Trustees say that these errors led the Court of Appeal to mistakenly set aside the sealing orders. In answer to questions at the hearing, the Trustees acknowledged that an order redacting certain documents in the file or a publication ban could assist in addressing some of their concerns, but maintained neither is a reasonable alternative to the sealing orders in the circumstances.
[ 26 ] The Trustees submit further that the protection of these interests outweighs the deleterious effects of the orders. They argue that the importance of the open court principle is attenuated by the nature of these probate proceedings. Given that it is non‑contentious and not strictly speaking necessary for the transfer of property at death, probate is a court proceeding of an "administrative" character, which diminishes the imperative of applying the open court principle here (paras. 113‑14).
[ 27 ] The Toronto Star takes the position that the Court of Appeal made no mistake in setting aside the sealing orders and that the appeal should be dismissed. In the Toronto Star's view, while privacy can be an important interest where it evinces a public component, the Trustees have only identified a subjective desire for the affected individuals in this case to avoid further publicity, which is not inherently harmful. According to the Toronto Star and some of the interveners, the Trustees' position would allow that measure of inconvenience and embarrassment that arises in every court proceeding to take precedence over the interest in court openness protected by the Canadian Charter of Rights and Freedoms in which all of society has a stake. The Toronto Star argues further that the information in the court files is not highly sensitive. On the issue of whether the sealing orders were necessary to protect the affected individuals from physical harm, the Toronto Star submits that the Court of Appeal was right to conclude that the Trustees had failed to establish a serious risk to this interest.
[ 28 ] In the alternative, even if there were a serious risk to one or another important interest, the Toronto Star says the sealing orders are not necessary because the risk could be addressed by an alternative, less onerous order. Furthermore, it says the orders are not proportionate. In seeking to minimize the importance of openness in probate proceedings, the Trustees invite an inflexible approach to balancing the effects of the order that is incompatible with the principle that openness applies to all court proceedings. In any event, there is a public interest in openness specifically here, given that the certificates sought can affect the rights of third parties and that openness ensures the fairness of the proceedings, whether they are contested or not.
V. Analysis
[ 29 ] The outcome of the appeal turns on whether the application judge should have made the sealing orders pursuant to the test for discretionary limits on court openness from this Court's decision in Sierra Club .
[ 30 ] Court openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of our democracy ( Canadian Broadcasting Corp. v. New Brunswick (Attorney General) , [1996] 3 S.C.R. 480, at para. 23 ; Vancouver Sun (Re) , 2004 SCC 43 , [2004] 2 S.C.R. 332, at paras. 23‑26 ). Reporting on court proceedings by a free press is often said to be inseparable from the principle of open justice. "In reporting what has been said and done at a public trial, the media serve as the eyes and ears of a wider public which would be absolutely entitled to attend but for purely practical reasons cannot do so" ( Khuja v. Times Newspapers Ltd. , [2017] UKSC 49, [2019] A.C. 161, at para. 16 , citing Edmonton Journal v. Alberta (Attorney General) , [1989] 2 S.C.R. 1326, at pp. 1339‑40, per Cory J.). Limits on openness in service of other public interests have been recognized, but sparingly and always with an eye to preserving a strong presumption that justice should proceed in public view ( Dagenais v. Canadian Broadcasting Corp. , [1994] 3 S.C.R. 835, at p. 878; R. v. Mentuck , 2001 SCC 76 , [2001] 3 S.C.R. 442, at paras. 32‑39 ; Sierra Club , at para. 56). The test for discretionary limits on court openness is directed at maintaining this presumption while offering sufficient flexibility for courts to protect these other public interests where they arise ( Mentuck , at para. 33 ). The parties agree that this is the appropriate framework of analysis for resolving this appeal.
[ 31 ] The parties and the courts below disagree, however, about how this test applies to the facts of this case and this calls for clarification of certain points of the Sierra Club analysis. Most centrally, there is disagreement about how an important interest in the protection of privacy could be recognized such that it would justify limits on openness, and in particular when privacy can be a matter of public concern. The parties bring two settled principles of this Court's jurisprudence to bear in support of their respective positions. First, this Court has often observed that privacy is a fundamental value necessary to the preservation of a free and democratic society ( Lavigne v. Canada (Office of the Commissioner of Official Languages) , 2002 SCC 53 , [2002] 2 S.C.R. 773, at para. 25 ; Dagg v. Canada (Minister of Finance) , [1997] 2 S.C.R. 403, at paras. 65‑66 , per La Forest J. (dissenting but not on this point); New Brunswick , at para. 40). Courts have invoked privacy, in some instances, as the basis for an exception to openness under the Sierra Club test (see, e.g., R. v. Henry , 2009 BCCA 86 , 270 B.C.A.C. 5, at paras. 11 and 17 ). At the same time, the jurisprudence acknowledges that some degree of privacy loss — resulting in inconvenience, even in upset or embarrassment — is inherent in any court proceeding open to the public ( New Brunswick , at para. 40). Accordingly, upholding the presumption of openness has meant recognizing that neither individual sensibilities nor mere personal discomfort associated with participating in judicial proceedings are likely to justify the exclusion of the public from court ( Attorney General of Nova Scotia v. MacIntyre , [1982] 1 S.C.R. 175, at p. 185; New Brunswick , at para. 41). Determining the role of privacy in the Sierra Club analysis requires reconciling these two ideas, which is the nub of the disagreement between the parties. The right of privacy is not absolute; the open court principle is not without exceptions.
[ 32 ] For the reasons that follow, I disagree with the Trustees that the ostensibly unbounded privacy interest they invoke qualifies as an important public interest within the meaning of Sierra Club . Their broad claim fails to focus on the elements of privacy that are deserving of public protection in the open court context. That is not to say, however, that privacy can never ground an exceptional measure such as the sealing orders sought in this case. While the mere embarrassment caused by the dissemination of personal information through the open court process does not rise to the level justifying a limit on court openness, circumstances do exist where an aspect of a person's private life has a plain public interest dimension.
[ 33 ] Personal information disseminated in open court can be more than a source of discomfort and may result in an affront to a person's dignity. Insofar as privacy serves to protect individuals from this affront, it is an important public interest relevant under Sierra Club . Dignity in this sense is a related but narrower concern than privacy generally; it transcends the interests of the individual and, like other important public interests, is a matter that concerns the society at large. A court can make an exception to the open court principle, notwithstanding the strong presumption in its favour, if the interest in protecting core aspects of individuals' personal lives that bear on their dignity is at serious risk by reason of the dissemination of sufficiently sensitive information. The question is not whether the information is "personal" to the individual concerned, but whether, because of its highly sensitive character, its dissemination would occasion an affront to their dignity that society as a whole has a stake in protecting.
[ 34 ] This public interest in privacy appropriately focuses the analysis on the impact of the dissemination of sensitive personal information, rather than the mere fact of this dissemination, which is frequently risked in court proceedings and is necessary in a system that privileges court openness. It is a high bar — higher and more precise than the sweeping privacy interest relied upon here by the Trustees. This public interest will only be seriously at risk where the information in question strikes at what is sometimes said to be the core identity of the individual concerned: information so sensitive that its dissemination could be an affront to dignity that the public would not tolerate, even in service of open proceedings.
[ 35 ] I hasten to say that applicants for an order making exception to the open court principle cannot content themselves with an unsubstantiated claim that this public interest in dignity is compromised any more than they could by an unsubstantiated claim that their physical integrity is endangered. Under Sierra Club , the applicant must show on the facts of the case that, as an important interest, this dignity dimension of their privacy is at "serious risk". For the purposes of the test for discretionary limits on court openness, this requires the applicant to show that the information in the court file is sufficiently sensitive such that it can be said to strike at the biographical core of the individual and, in the broader circumstances, that there is a serious risk that, without an exceptional order, the affected individual will suffer an affront to their dignity.
[ 36 ] In the present case, the information in the court files was not of this highly sensitive character that it could be said to strike at the core identity of the affected persons; the Trustees have failed to show how the lifting of the sealing orders engages the dignity of the affected individuals. I am therefore not convinced that the intrusion on their privacy raises a serious risk to an important public interest as required by Sierra Club . Moreover, as I shall endeavour to explain, there was no serious risk of physical harm to the affected individuals by lifting the sealing orders. Accordingly, this is not an appropriate case in which to make sealing orders, or any order limiting access to these court files. In the circumstances, the admissibility of the Toronto Star's new evidence is moot. I propose to dismiss the appeal.
A. The Test for Discretionary Limits on Court Openness
[ 37 ] Court proceedings are presumptively open to the public ( MacIntyre , at p. 189; A.B. v. Bragg Communications Inc. , 2012 SCC 46 , [2012] 2 S.C.R. 567, at para. 11 ).
[ 38 ] The test for discretionary limits on presumptive court openness has been expressed as a two‑step inquiry involving the necessity and proportionality of the proposed order ( Sierra Club , at para. 53). Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seeking an exception to the open court principle. In order to succeed, 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 prevent 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 prerequisites have been met can a discretionary limit on openness — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments ( Toronto Star Newspapers Ltd. v. Ontario , 2005 SCC 41 , [2005] 2 S.C.R. 188 , at paras. 7 and 22 ).
[ 39 ] The discretion is structured and controlled in this way to protect the open court principle, which is understood to be constitutionalized under the right to freedom of expression at s. 2 (b) of the Charter ( New Brunswick , at para. 23). Sustained by freedom of expression, the open court principle is one of the foundations of a free press given that access to courts is fundamental to newsgathering. This Court has often highlighted the importance of open judicial proceedings to maintaining the independence and impartiality of the courts, public confidence and understanding of their work and ultimately the legitimacy of the process (see, e.g., Vancouver Sun , at paras. 23‑26). In New Brunswick , La Forest J. explained the presumption in favour of court openness had become "'one of the hallmarks of a democratic society'" (citing Re Southam Inc. and The Queen (No.1) (1983) , 41 O.R. (2d) 113 (C.A.) , at p. 119 ) , that "acts as a guarantee that justice is administered in a non‑arbitrary manner, according to the rule of law . . . thereby fostering public confidence in the integrity of the court system and understanding of the administration of justice" (para. 22). The centrality of this principle to the court system underlies the strong presumption — albeit one that is rebuttable — in favour of court openness (para. 40; Mentuck , at para. 39 ).
[ 40 ] The test ensures that discretionary orders are subject to no lower standard than a legislative enactment limiting court openness would be ( Mentuck , at para. 27 ; Sierra Club , at para. 45). To that end, this Court developed a scheme of analysis by analogy to the Oakes test, which courts use to understand whether a legislative limit on a right guaranteed under the Charter is reasonable and demonstrably justified in a free and democratic society ( Sierra Club , at para. 40, citing R. v. Oakes , [1986] 1 S.C.R. 103; see also Dagenais , at p. 878; Vancouver Sun , at para. 30).
[ 41 ] The recognized scope of what interests might justify a discretionary exception to open courts has broadened over time. In Dagenais , Lamer C.J. spoke of a requisite risk to the "fairness of the trial" (p. 878). In Mentuck , Iacobucci J. extended this to a risk affecting the "proper administration of justice" (para. 32). Finally, in Sierra Club , Iacobucci J., again writing for a unanimous Court, restated the test to capture any serious risk to an "important interest, including a commercial interest, in the context of litigation" (para. 53). He simultaneously clarified that the important interest must be expressed as a public interest. For example, on the facts of that case, a harm to a particular business interest would not have been sufficient, but the "general commercial interest of preserving confidential information" was an important interest because of its public character (para. 55). This is consistent with the fact that this test was developed in reference to the Oakes jurisprudence that focuses on the "pressing and substantial" objective of legislation of general application ( Oakes , at pp. 138‑39; see also Mentuck , at para. 31 ). The term "important interest" therefore captures a broad array of public objectives.
[ 42 ] While there is no closed list of important public interests for the purposes of this test, I share Iacobucci J.'s sense, explained in Sierra Club , that courts must be "cautious" and "alive to the fundamental importance of the open court rule" even at the earliest stage when they are identifying important public interests (para. 56). Determining what is an important public interest can be done in the abstract at the level of general principles that extend beyond the parties to the particular dispute (para. 55). By contrast, whether that interest is at "serious risk" is a fact‑based finding that, for the judge considering the appropriateness of an order, is necessarily made in context. In this sense, the identification of, on the one hand, an important interest and, on the other, the seriousness of the risk to that interest are, theoretically at least, separate and qualitatively distinct operations. An order may therefore be refused simply because a valid important public interest is not at serious risk on the facts of a given case or, conversely, that the identified interests, regardless of whether they are at serious risk, do not have the requisite important public character as a matter of general principle.
[ 43 ] The test laid out in Sierra Club continues to be an appropriate guide for judicial discretion in cases like this one. The breadth of the category of "important interest" transcends the interests of the parties to the dispute and provides significant flexibility to address harm to fundamental values in our society that unqualified openness could cause (see, e.g., P. M. Perell and J. W. Morden, The Law of Civil Procedure in Ontario (4th ed. 2020), at para. 3.185; J. Bailey and J. Burkell"Revisiting the Open Court Principle in an Era of Online Publication: Questioning Presumptive Public Access to Parties' and Witnesses' Personal Information" (2016), 48 Ottawa L. Rev. 143, at pp. 154‑55). At the same time, however, the requirement that a serious risk to an important interest be demonstrated imposes a meaningful threshold necessary to maintain the presumption of openness. Were it merely a matter of weighing the benefits of the limit on court openness against its negative effects, decision-makers confronted with concrete impacts on the individuals appearing before them may struggle to put adequate weight on the less immediate negative effects on the open court principle. Such balancing could be evasive of effective appellate review. To my mind, the structure provided by Dagenais , Mentuck , and Sierra Club remains appropriate and should be affirmed.
[ 44 ] Finally, I recall that the open court principle is engaged by all judicial proceedings, whatever their nature ( MacIntyre at pp. 185‑86; Vancouver Sun , at para. 31). To the extent the Trustees suggested, in their arguments about the negative effects of the sealing orders, that probate in Ontario does not engage the open court principle or that the openness of these proceedings has no public value, I disagree. The certificates the Trustees sought from the court are issued under the seal of that court, thereby bearing the imprimatur of the court's authority. The court's decision, even if rendered in a non‑contentious setting, will have an impact on third parties, for example by establishing the testamentary paper that constitutes a valid will (see Otis v. Otis (2004), 7 E.T.R. (3d) 221 (Ont. S.C.), at paras. 23‑24 ). Contrary to what the Trustees argue, the matters in a probate file are not quintessentially private or fundamentally administrative. Obtaining a certificate of appointment of estate trustee in Ontario is a court proceeding and the fundamental rationale for openness — discouraging mischief and ensuring confidence in the administration of justice through transparency — applies to probate proceedings and thus to the transfer of property under court authority and other matters affected by that court action.
[ 45 ] It is true that other non‑probate estate planning mechanisms may allow for the transfer of wealth outside the ordinary avenues of testate or intestate succession — that is the case, for instance, for certain insurance and pension benefits, and for certain property held in co‑ownership. But this does not change the necessarily open court character of probate proceedings. That non-probate transfers keep certain information related to the administration of an estate out of public view does not mean that the Trustees here, by seeking certificates from the court, somehow do not engage this principle. The Trustees seek the benefits that flow from the public judicial probate process: transparency ensures that the probate court's authority is administered fairly and efficiently ( Vancouver Sun , at para. 25; New Brunswick , at para. 22) . The strong presumption in favour of openness plainly applies to probate proceedings and the Trustees must satisfy the test for discretionary limits on court openness.
B. The Public Importance of Privacy
[ 46 ] As mentioned, I disagree with the Trustees that an unbounded interest in privacy qualifies as an important public interest under the test for discretionary limits on court openness . Yet in some of its manifestations, privacy does have social importance beyond the person most immediately concerned. On that basis, it cannot be excluded as an interest that could justify, in the right circumstances, a limit to court openness. Indeed, the public importance of privacy has been recognized by this Court in various settings, and this sheds light on why the narrower aspect of privacy related to the protection of dignity is an important public interest.
[ 47 ] I respectfully disagree with the manner in which the Court of Appeal disposed of the claim by the Trustees that there is a serious risk to the interest in protecting personal privacy in this case. For the appellate judges, the privacy concerns raised by the Trustees amounted to "[p]ersonal concerns" which cannot"without more", satisfy the requirement from Sierra Club that an important interest be framed as a public interest (para. 10). The Court of Appeal in our case relied, at para. 10, on H. (M.E.) v. Williams , 2012 ONCA 35 , 108 O.R. (3d) 321 , in which it was held that "[p]urely personal interests cannot justify non‑publication or sealing orders" (para. 25). Citing as authority judgments of this Court in MacIntyre and Sierra Club , the court continued by observing that "personal concerns of a litigant, including concerns about the very real emotional distress and embarrassment that arise in litigation, are not public interests" (para. 25). In so holding, the Court of Appeal characterized the Trustees' privacy interest as a purely personal concern, devoid of any public dimension. I cannot agree that privacy is simply a personal concern in all of its manifestations.
[ 48 ] This Court has long recognized privacy as a fundamental value with social as well as personal dimensions. The Court has affirmed, among other things, that "[p]rivacy is at the heart of liberty in a modern state" and a fundamental human right — a precondition to the exercise of other freedoms ( R. v. Dyment , [1988] 2 S.C.R. 417, at p. 427 , per La Forest J.; Douez v. Facebook, Inc. , 2017 SCC 33 , [2017] 1 S.C.R. 751, at para. 49). Privacy protects individuals from state interference in their personal lives; it enables them to shape their own narratives. Individuals are thus able to control information about themselves so that, in the words of La Forest J."all information about himself [or herself]" does not "flow freely" to those who may be disposed to harm the individual ( Dyment , at p. 429). Protecting informational privacy is therefore in the interest of society as a whole, not just the individuals whose information is at stake (see Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401 , 2013 SCC 62 , [2013] 3 S.C.R. 733, at para. 21 ).
[ 49 ] I would therefore not endorse the proposition, implicit in the Court of Appeal's reasons, that every privacy concern is wholly personal in character. The Court of Appeal was right in the immediate sense that recognizing a public interest in generic privacy would be inconsistent with the strong presumption of openness and with this Court's jurisprudence on the Sierra Club test. But I disagree that privacy is inherently a personal rather than public concern. Some personal concerns relating to privacy overlap with public interests.
[ 50 ] While recognizing that privacy has a public dimension in some of its manifestations, it must be admitted that it is a highly variable concept, making the task of precisely identifying the dimension of privacy with public interest qualities particularly challenging. Privacy has been described as "a value so complex, so entangled in competing considerations, and so dependent on context" as to be "elusive" ( R. v. Spencer , 2014 SCC 43 , [2014] 2 S.C.R. 212, at para. 37, citing L. Weinrib"The Constitutional Right to Privacy" in D. Schneiderman, ed., Freedom of Expression and the Charter (1991), 179, at p. 179). Because privacy is "protean and manifold", it cannot easily be captured in a single formula ( R. v. Quesnelle , 2014 SCC 46 , [2014] 2 S.C.R. 390, at para. 19, citing R. v. Tessling , 2004 SCC 67 , [2004] 3 S.C.R. 432, at para. 24 ).
[ 51 ] Courts have grappled with the concept in various settings and the concept of privacy in the open court context must be understood specifically in relation to the purpose and rationale of the open court principle. As I have described, the test for discretionary limits on court openness is analogous to the Oakes test under s. 1 of the Charter and reflects the public interest in court openness. As under the Charter , it is not every interest that can, as a matter of general principle, justify a limit on an important right or freedom. The important interest must be capable of constituting a sufficiently serious public reason to justify derogation from the strong presumption of openness.
[ 52 ] In this context, the concept of privacy that is apt must be one that is both broad enough to reflect its public character, while still being precise enough to yield a workable standard allowing courts to identify when the interest is at serious risk. The following discussion is motivated by these two objects.
[ 53 ] The public character of privacy is best understood by reference to the protection of human dignity. Dignity is a value that connects privacy to human flourishing, which explains why some aspects of privacy are a matter of public importance and not simply personal discomfort. Dignity is both a public and a private value ( Douez , at para. 73, per Abella J., concurring): it is a value fundamental to our society (see e.g. Canadian Human Rights Act , R.S.C. 1985, c. H-6, Preamble; Ontario Human Rights Code , R.S.O. 1990, c. H.19, Preamble) and at the same time it is a value intimately connected to an individual's conception of themselves and their place in the world. Insofar as it protects dignity, privacy has a public dimension and courts should be receptive to the argument that privacy interests implicate important public interests.
[ 54 ] Dignity in this sense involves the right to present core aspects of oneself to others in a considered and controlled manner. It involves "the right to present the 'self' to others in a manner that is of one's own choosing" ( R. v. Mabior , 2012 SCC 47 , [2012] 2 S.C.R. 584, at para. 92, per McLachlin C.J. (dissenting but not on this point)). It is an expression of an individual's unique personality or personhood ( Dyment , at p. 428; R. v. Plant , [1993] 3 S.C.R. 281, at p. 293 , per Sopinka J.). To protect this dignity, individuals may appropriately choose to guard from public view matters going to the core of who they are.
[ 55 ] The concept of a "biographical core" of personal information is relevant and helpful here. It captures the idea that "[i]nformation such as medical records, personal journals, letters, financial records, and information related to sexual practices or preferences has been recognized as going to an individual's 'biographical core'" and refers to "information which tends to reveal intimate details of the lifestyle and personal choices of the individual" ( R. v. Cole , 2012 SCC 53 , [2012] 3 S.C.R. 34, at para. 46 ). The information is so private in its nature that it raises the question of who the individuals are as people — it speaks to their identity, their lifestyle, their most personal choices. This framing, adopted in the criminal law context, has become helpful shorthand for the type of information the protection of which goes beyond the individual's subjective preferences as to what is shared and to something that society as a whole recognizes as deserving of protection.
[ 56 ] If information in court proceedings touches on a person's biographical core, as described above, there is reason to view the interest in protecting that information as one of public concern. The state of a person's health or sexuality, for example, is more than a personal concern — society at large recognizes and has an interest in protecting that kind of sensitive personal information, including in the open court setting. While the protection of this information is in many respects personal — it is of great importance to those concerned — it also resonates in the public sphere in a manner that other personal concerns do not ( Dyment , at p. 429). By contrast, where the information touches on elements peripheral to a person's biographical core, there is less reason to think society at large has a stake in protecting it, beyond the sympathy it might afford to those individuals put in an uncomfortable position.
[ 57 ] When it is well understood in this way, the dimension of privacy related to protecting dignity represents an identifiable public concern that is distinct from the general interest in controlling the flow of personal information and from mere personal discomfort at having personal information disclosed. The public dimension of privacy, understood in reference to dignity, is why the sealing of a file revealing highly sensitive personal medical information or details about one's sexual life, for example, might be justifiable in the open court context (see, e.g., H. (M.E.) v. Williams , at para. 26; Coltsfoot Publishing Ltd. v. Foster‑Jacques , 2012 NSCA 83 , 320 N.S.R. (2d) 166, at paras. 11 and 14 ; see also F.N. (Re) , 2000 SCC 35 , [2000] 1 S.C.R. 880 ; Goulet v. Transamerica Life Insurance Co. of Canada , 2002 SCC 21 , [2002] 1 S.C.R. 719, at para. 21 ).
[ 58 ] I am mindful that courts in France, the United Kingdom, Germany and elsewhere in Europe have developed doctrines that would generally place greater weight on privacy as an important interest to be balanced against court openness (see e.g. Godbout v. Longueuil (Ville de) , [1995] R.J.Q. 2561, aff'd , [1997] 3 S.C.R. 844; and A. v. B. , [1991] 1 Q.B. 526 (C.A. Eng.); J. Oster, Media Freedom as a Fundamental Right (2015), at pp. 221‑45). The framework I have described does not, I think, place privacy clearly secondary to openness — rather, it defines the dimension of privacy with public importance in a manner that allows for an appropriate balance with court openness. The limits I have identified on the reach of the privacy interest in the open court context are consistent with this balance and can be justified on the basis of the constitutional importance of freedom of expression in the Canadian context.
[ 59 ] While this understanding of privacy is thus refined, I note that it is not out of step with the Court's treatment of privacy in other settings. The concept of a "biographical core" is well established in the criminal law context and refers to the kind of information that resonates in the public sphere as plainly warranting protection ( Plant , at p. 293; R. v. Marakah , 2017 SCC 59 , [2017] 2 S.C.R. 608, at para. 51 , per McLachlin C.J.; Cole , at paras. 46‑47 ). In the context of s. 8 of the Charter , courts are directed to ask whether it is information that the person has a reasonable expectation of privacy over, having regard in particular to whether it goes to that person's biographical core. In the open court context, I propose to redirect the analysis to the similar question of whether the information strikes at the individual's biographical core such that its dissemination in the public court proceeding would occasion an affront to their dignity. This public dimension of privacy justifies an exception to the open court principle where the other requirements of the Sierra Club analysis are met.
[ 60 ] I would not understand the notion of an "important public interest" in privacy more broadly than this — that is, broader than the interest in protecting core aspects of personal life that bear on dignity — in the open court context. I note that the Trustees do not press a broader conception of privacy interest in this Court. Their claim rests on the allegation that the sealing of the probate files is necessary to prevent risks to the physical safety and privacy of the affected individuals.
[ 61 ] I turn now to the Trustees' position on the two important interests — privacy and physical safety — they say are at serious risk in this case.
C. The Seriousness of the Alleged Risk to Privacy in This Case
[ 62 ] The Trustees claim that both the privacy of those in the court files and their physical safety are at serious risk. I will address the claim of serious risk to privacy first, and then the claim of serious risk to physical safety.
[ 63 ] As I explained above, courts must focus on the aspect of privacy connected to dignity in order to identify an important interest capable of justifying a limit on the open court principle. Within this framework, the court should make two related enquiries: (1) whether the information is sufficiently sensitive, bearing on the "biographical core" of the affected individual; and (2) whether there is a serious risk that, without an exceptional order, the affected individual will suffer a dignity affront by reason of the court proceedings. These are not watertight compartments, but they mark out distinct requirements: the court must be satisfied both as to the sensitivity of the relevant information and as to the seriousness of the risk that this sensitivity creates in the particular circumstances.
[ 64 ] Before proceeding, I would distinguish the inquiry about an important public interest in privacy from the inquiry a court must undertake in seeking to identify the specific information in the court file that must be protected. It is necessary, of course, to consider the nature of the information itself in seeking to understand whether an important interest is at serious risk. But the purpose of identifying this information at this stage is to understand the nature of the privacy interest being asserted, not to determine what information should be shielded from public view. As noted above, the question at this stage is not whether information is "personal" but whether the nature of the information is such that its public dissemination raises a serious risk to human dignity.
[ 65 ] In pursuing these inquiries, courts must obviously start with an account of what kind of information is in the court record sought to be protected. In this case, the court files contain applications for certificates of appointment of estate trustee, which in Ontario are verified by a sworn affidavit or a declaration. A certificate of appointment of estate trustee with a will appoints a trustee and includes information such as the deceased's name and last address, as well as the will and a list of the assets and their estimated value, together with any relevant codicil. A certificate of appointment of estate trustee without a will (intestacy) appoints a trustee and involves an application and a sworn statement of assets, the names of beneficiaries and their relationship to the deceased, and a bond. Generally speaking, these types of documents, as the Toronto Star has argued and the Trustees have not effectively rebutted, do not reveal the kind of highly sensitive personal information that can be said to strike at the biographical core of the individuals most immediately concerned.
[ 66 ] The Trustees have offered no specific information about the contents of the court files that would lead the court to conclude they should be sealed. Rather, they rely on the general assertion that the files should be sealed given the risk associated with the unexplained deaths of the Shermans, the public attention the deaths have attracted, and the associated risk of harm to the affected individuals. The Trustees refer to the "highly personal nature of the intimate family and financial details" in the files (A.F., at para. 1), but they have not advanced any specific reason why the kinds of information typically found in a probate file would strike at the biographical core of the affected individuals in the circumstances of this case.
[ 67 ] The information in the files appears to consist of the expected contents of a probate file: names of trustees and beneficiaries, their relation to the deceased, information about assets, and the will and codicil themselves. Even if one accepts that the files include information about the considerable size of the estate that is not already in the public domain, this would tell us little about who the beneficiaries are as people. The financial value of the estate would identify the beneficiaries as wealthy, but the fact of their wealth is not particularly sensitive given that it was already public knowledge that the Shermans were enormously wealthy individuals who led very public lives. Beyond that, the existence of one's family members — including names — is not ordinarily information of this especially sensitive character. The information that they are beneficiaries of their parents' estate does not particularly single out the beneficiaries' identity in a sensitive or intimate way. The fact that beneficiaries may include minors does not change the character of the information.
[ 68 ] The privacy concern here arises not from the content of the information in the probate files, but from the public's desire to see the information in the context of media interest in the Shermans' deaths. It is the context — not the nature of the information itself — that generates the sense of intrusion. This is understandable, but it does not reveal anything touching the biographical core of the individuals concerned. The contextual nature of the privacy concern does not itself cross the threshold necessary to justify a limit on court openness.
[ 69 ] The important public interest in privacy, as I have defined it in reference to dignity, requires consideration of whether the information is sufficiently sensitive such that it strikes at the biographical core of the affected individuals. As I noted, the information at issue here — probate file information — does not meet that standard in the circumstances of this case. On this basis alone, the Trustees have not shown a serious risk to an important public interest in privacy.
[ 70 ] It is true that even information that does not appear on its face to be particularly sensitive might strike at the biographical core of an individual in a particular case (see, e.g., Quesnelle , at paras. 51‑58; Marakah , at para. 98 ). Indeed, there may be cases where contextual factors can make information especially sensitive and, where that is the case, they can contribute to a finding that a serious risk to the important public interest in privacy is made out. That said, context can raise or lower the threshold, but context alone, without sufficiently sensitive information, cannot suffice to show that this threshold has been crossed.
[ 71 ] One more thing warrants mention. The Trustees ask this Court to recognize that the connection between the disclosures in these files and the recent unexplained deaths should, in itself, be enough to elevate the nature of the information to the level required by the test. I disagree. The deaths create context, but they do not transform the nature of the information at issue. As I have explained, the contextual circumstances here do not change the nature of the information itself. The nature of the information — even given the context — does not strike at the core identity of the affected individuals. Their family relationship with the deceased and the financial details concerning the deceased's estate — even if they are unexpectedly wealthy — does not touch on the intimate details of the affected individuals' personal lives.
[ 72 ] In conclusion, the Trustees have not shown a serious risk to the important public interest in privacy as defined in reference to dignity in the open court context.
D. The Alleged Serious Risk of Physical Harm
[ 73 ] Given that I have concluded that there is no serious risk to the public interest in privacy, the only remaining basis on which a discretionary limit on court openness can be made is the alleged serious risk of physical harm. As stated, the identification of the important interest in physical safety was not in controversy. The parties agree that the protection from physical harm is an important public interest. The question is whether there is a serious risk to this interest in this case.
[ 74 ] I now turn to the question of whether the Trustees have established that there is a serious risk to this important interest on the facts before the Court.
[ 75 ] The standard of review for mixed questions of fact and law, such as the characterization of the important interest at stake and whether it is at serious risk, is that of palpable and overriding error ( Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 37 ). This standard of review for the characterization and assessment of the serious risk to an important public interest is appropriate given that the Sierra Club analysis involves a sensitive examination of the particular factual context in which the sealing order is sought.
[ 76 ] The appellate standard of review I have just described is, however, complicated by the fact that the application judge's analysis was affected by legal errors. He erred in concluding that the privacy concern of the Trustees was an important public interest. The application judge also erred, as I will explain shortly, in his assessment of the risk of physical harm. He took an overly permissive approach to the assessment of inferences, which allowed him to reach a conclusion as to the risk of harm that was not open to him on this record. As the Court of Appeal rightly concluded, the application judge's error was one of law, in that he incorrectly applied the legal test ( Housen , at paras. 28, 36‑37; R. v. Paterson (1998) , 102 B.C.A.C. 200, at para. 7 ). The Court of Appeal was therefore entitled to intervene and substitute its own assessment.
[ 77 ] This Court may in turn assess the risk of physical harm afresh, as there is no dispute about the underlying facts and it is a question of whether the law was applied correctly.
(1) Privacy Under the Sierra Club Test and Its Relationship to Physical Safety
[ 78 ] For the purposes of the Sierra Club analysis, the privacy interest identified here is the dignity-related aspect of privacy. The physical safety interest is, of course, distinct. However, it is worth noting that these two distinct interests are connected in one important respect. Both must be shown to be at "serious risk" to meet the threshold for a discretionary limit on court openness. What counts as a serious risk has some common threads.
[ 79 ] In Sierra Club , Iacobucci J. wrote that the important interest identified by the applicant must be at "serious risk" (para. 53). For the purpose of the Sierra Club test, a "serious risk" is one that is real and substantiated by the evidence, not speculative. In Sierra Club itself, this Court held that the risk must be established by the applicant (para. 53). I understand Iacobucci J. to have established this by reference to a "real" risk of harm: "a real risk to Atomic Energy's right to procedural fairness" (para. 75) or "there must be a real possibility that, without the confidentiality order, the important interest, here the commercial interest, will be harmed" (para. 76). The seriousness of the risk cannot rest on speculation ( Bragg , at para. 15). In Bragg , the Court found that objectively discernible harm could be made out on the basis of the "direct logical connection" between the disclosure of the information at issue and the risk of harm: "[i]t would be speculative to say this threat of harm does not exist" (para. 17). So the risk that is being established must be shown to exist and be real, not merely speculative.
[ 80 ] There are, in other words, two aspects to the seriousness of the risk: the probability of the harm occurring and its gravity. What is required by the test is that the probability of the harm occurring must itself be established as a real or serious risk, meaning more than negligible, fanciful, or speculative, and not merely that the harm, if it occurs, would be serious.
[ 81 ] The serious risk to an important interest must be specifically related to the impact of the court proceeding on that interest. There are no doubt many risks associated with the situations before the courts, as in this case. But a sealing order addresses only the risks that arise from court openness. If the risk is not related to the openness of the court proceeding, then the particular order sought is unnecessary.
[ 82 ] Thus, the inquiry as to whether there is a serious risk to the important interest in privacy is linked to whether the court proceeding specifically poses that risk to the dignity of the affected individuals. In cases involving risks to the physical safety of individuals, courts must therefore be directed to inquire whether the court proceeding — here, the probate proceedings, if open to the public — creates or contributes to a serious risk to the physical safety of the affected individuals.
[ 83 ] In an open court proceeding, the concern is about information in the court file being made available to the public. Information in the court record is therefore at the heart of the Sierra Club analysis. As was the case for the privacy analysis, the assessment must start from an account of the information that would be put into the public view if the sealing order were refused and, with that information in mind, whether a serious risk — real and not speculative — to physical safety could be said to flow from the court proceeding being open.
[ 84 ] I would also note, in passing, the relationship between the privacy and physical safety analyses in this case. The fact that there is no particular reason to think that the files would reveal information striking at the core identity of the affected persons is consonant with the idea that the files pose no particular security risk, since the highly sensitive information that would give rise to either privacy or safety concerns has not been shown to be in the files.
(2) The Risk to Physical Safety Alleged in this Case is Not Serious
[ 96 ] Unlike the privacy interest raised in this case, there was no controversy that there is an important public interest in protecting individuals from physical harm. It is worth underscoring that the application judge correctly treated the protection from physical harm as a distinct important interest from that of the protection of privacy and found that this risk of harm was "foreseeable" and "grave" (paras. 22‑24). The issue is whether the Trustees have established a serious risk to this interest for the purpose of the test for discretionary limits on court openness. The application judge observed that it would have been preferable to include objective evidence of the seriousness of the risk from the police service conducting the homicide investigation. He nevertheless concluded there was sufficient proof of risk to the physical safety of the affected individuals to meet the test. The Court of Appeal says that was a misreading of the evidence, and the Toronto Star agrees that the application judge's conclusion as to the existence of a serious risk to safety was mere speculation.
[ 97 ] At the outset, I note that direct evidence is not necessarily required to establish a serious risk to an important interest. This Court has held that it is possible to identify objectively discernable harm on the basis of logical inferences ( Bragg , at paras. 15‑16). But this process of inferential reasoning is not a licence to engage in impermissible speculation. An inference must still be grounded in objective circumstantial facts that reasonably allow the finding to be made inferentially. Where the inference cannot reasonably be drawn from the circumstances, it amounts to speculation ( R. v. Chanmany , 2016 ONCA 576 , 352 O.A.C. 121, at para. 45 ).
[ 98 ] As the Trustees correctly argue, it is not just the probability of the feared harm, but also the gravity of the harm itself that is relevant to the assessment of serious risk. Where the feared harm is particularly serious, the probability that this harm materialize need not be shown to be likely, but must still be more than negligible, fanciful or speculative. The question is ultimately whether this record allowed the application judge to objectively discern a serious risk of physical harm.
[ 99 ] This conclusion was not open to the application judge on this record. There is no dispute that the feared physical harm is grave. I agree with the Toronto Star, however, that the probability of this harm occurring was speculative. The application judge's conclusion as to the seriousness of the risk of physical harm was grounded on what he called "the degree of mystery that persists regarding both the perpetrator and the motives" associated with the deaths of the Shermans and his supposition that this motive might be "transported" to the trustees and beneficiaries (para. 5; see also paras. 19 and 23). The further step in reasoning that the unsealed estate files would lead to the perpetrator's next crime, to be visited upon someone mentioned in the files, is based on speculation, not the available affidavit evidence, and cannot be said to be a proper inference or some kind of objectively discerned harm or risk thereof. If that were the case, the estate files of every victim of an unsolved murder would pass the initial threshold of the test for a sealing order.
[ 100 ] Further, I recall that what is at issue here is not whether the affected individuals face a safety risk in general, but rather whether they face such a risk as a result of the openness of these court files. In light of the contents of these files, the Trustees had to point to some further reason why the risk posed by this information becoming publicly available was more than negligible.
[ 101 ] The speculative character of the chain of reasoning leading to the conclusion that a serious risk of physical harm exists in this case is underlined by differences between these facts and those cases relied on by the Trustees. In X. v. Y. , 2011 BCSC 943 , 21 B.C.L.R. (5th) 410 , the risk of physical harm was inferred on the basis that the plaintiff was a police officer who had investigated "cases involving gang violence and dangerous firearms" and wrote sentencing reports for such offenders which identified him by full name (para. 6). In R. v. Esseghaier , 2017 ONCA 970 , 356 C.C.C. (3d) 455 , Watt J. A. considered it "self‑evident" that the disclosure of identifiers of an undercover operative working in counter‑terrorism would compromise the safety of the operative (para. 41). In both cases, the danger flowed from facts establishing that the applicants were in antagonistic relationships with alleged criminal or terrorist organizations. But in this case, the Trustees asked the application judge to infer not only the fact that harm would befall the affected individuals, but also that a person or persons exist who wish to harm them. To infer all this on the basis of the Shermans' deaths and the association of the affected individuals with the deceased is not reasonably possible on this record. It is not a reasonable inference but, as the Court of Appeal noted, a conclusion resting on speculation.
[ 102 ] Were the mere assertion of grave physical harm sufficient to show a serious risk to an important interest, there would be no meaningful threshold in the analysis. Instead, the test requires the serious risk asserted to be well grounded in the record or the circumstances of the particular case ( Sierra Club , at para. 54; Bragg , at para. 15). This contributes to maintaining the strong presumption of openness.
[ 103 ] Again, in other cases, circumstantial facts may allow a court to infer the existence of a serious risk of physical harm. Applicants do not necessarily need to retain experts who will attest to the physical or psychological risk related to the disclosure. But on this record, the bare assertion that such a risk exists fails to meet the threshold necessary to establish a serious risk of physical harm. The application judge's conclusion to the contrary was an error warranting the intervention of the Court of Appeal.
E. There Would Be Additional Barriers to a Sealing Order on the Basis of the Alleged Risk to Privacy
[ 104 ] While not necessary to dispose of the appeal, it bears mention that the Trustees would have faced additional barriers in seeking the sealing orders on the basis of the privacy interest they advanced. I recall that to meet the test for discretionary limits on court openness, a person must show, in addition to a serious risk to an important interest, that the particular order sought is necessary to address the risk and that the benefits of the order outweigh its negative effects as a matter of proportionality ( Sierra Club , at para. 53).
[ 105 ] Even if the Trustees had succeeded in showing a serious risk to the privacy interest they assert, a publication ban — less constraining on openness than the sealing orders — would have likely been sufficient as a reasonable alternative to prevent this risk. The condition that the order be necessary requires the court to consider whether there are alternatives to the order sought and to restrict the order as much as reasonably possible to prevent the serious risk ( Sierra Club , at para. 57). An order imposing a publication ban could restrict the dissemination of personal information to only those persons consulting the court record for themselves and prohibit those individuals from spreading the information any further. As I have noted, the likelihood and extent of dissemination may be relevant factors in determining the seriousness of a risk to privacy in this context. While the Toronto Star would be able to consult the files subject to a publication ban, for example, which may assist it in its investigations, it would not be able to publish and thereby broadly disseminate the contents of the files. A publication ban would seem to protect against this latter harm, which has been the focus of the Trustees' argument, while allowing some access to the file, which is not possible under the sealing orders. Therefore, even if a serious risk to the privacy interest had been made out, it would likely not have justified a sealing order, because a less onerous order would have likely been sufficient to mitigate this risk effectively. I hasten to add, however, that a publication ban is not available here since, as noted, the seriousness of the risk to the privacy interest at play has not been made out.
[ 106 ] Further, the Trustees would have had to show that the benefits of any order necessary to protect from a serious risk to the important public interest outweighed the harmful effects of the order, including the negative impact on the open court principle ( Sierra Club , at para. 53). In balancing the privacy interests against the open court principle, it is important to consider whether the information the order seeks to protect is peripheral or central to the judicial process (paras. 78 and 86; Bragg , at paras. 28‑29). There will doubtless be cases where the information that poses a serious risk to privacy, bearing as it does on individual dignity, will be central to the case. But the interest in important and legally relevant information being aired in open court may well overcome any concern for the privacy interests in that same information. This contextual balancing, informed by the importance of the open court principle, presents a final barrier to those seeking a discretionary limit on court openness for the purposes of privacy protection.
VI. Conclusion
[ 107 ] The conclusion that the Trustees have failed to establish a serious risk to an important public interest ends the analysis. In such circumstances, the Trustees are not entitled to any discretionary order limiting the open court principle, including the sealing orders they initially obtained. The Court of Appeal rightly concluded that there was no basis for asking for redactions because the Trustees had failed at this stage of the test for discretionary limits on court openness. This is dispositive of the appeal. The decision to set aside the sealing orders rendered by the application judge should be affirmed. Given that I propose to dismiss the appeal on the existing record, I would dismiss the Toronto Star's motion for new evidence as being moot.
[ 108 ] For the foregoing reasons, I would dismiss the appeal. The Toronto Star requests no costs given the important public issues in dispute. As such, there will be no order as to costs.
Appeal dismissed .
Solicitors for the appellants: Davies Ward Phillips & Vineberg, Toronto.
Solicitors for the respondents: Blake, Cassels & Graydon, Toronto.
Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.
Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Vancouver.
Solicitors for the intervener the Canadian Civil Liberties Association: DMG Advocates, Toronto.
Solicitors for the intervener the Income Security Advocacy Centre: Borden Ladner Gervais, Toronto.
Solicitors for the interveners Ad IDEM/Canadian Media Lawyers Association, Postmedia Network Inc., CTV, a Division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, The Globe and Mail Inc. and Citytv, a division of Rogers Media Inc.: Farris, Vancouver.
Solicitors for the intervener the British Columbia Civil Liberties Association: McCarthy Tétrault, Toronto.
Solicitors for the interveners the HIV & AIDS Legal Clinic Ontario, the HIV Legal Network and the Mental Health Legal Committee: HIV & AIDS Legal Clinic Ontario, Toronto.
[1] As noted in the title of proceedings, the appellants in this matter have been referred to consistently as the "Estate of Bernard Sherman and Trustees of the Estate and Estate of Honey Sherman and Trustees of the Estate." In these reasons the appellants are referred to throughout as the "Trustees" for convenience.
[2] The use of "Toronto Star" as a collective term referring to both respondents should not be taken to suggest that only Toronto Star Newspapers Ltd. is participating in this appeal. Mr. Donovan is the only respondent to have been a party throughout. Toronto Star Newspapers Ltd. was a party in first instance, but was removed as a party on consent at the Court of Appeal. By order of Karakatsanis J. dated March 25, 2020, Toronto Star Newspapers Ltd. was added as a respondent in this Court.
[3] At the time of writing the House of Commons is considering a bill that would replace part one of PIPEDA : Bill C-11, An Act to enact the Consumer Privacy Protection Act and the Personal Information and Data Protection Tribunal Act and to make consequential and related amendments to other Acts , 2nd Sess., 43rd Parl., 2020.
