The Ontario Court of Appeal issued its decision on the appeal brought by the Toronto Star and Mr. Donovan from the order of Justice Dunphy dated August 2, 2018 in which he sealed certain court files relating to the Estates of Honey and Bernard Sherman. The Sherman’s were prominent Toronto residents who were murdered in their own home in December 2017 and the case remains unsolved as far as we know.
The court reviewed the test to be applied when deciding whether to grant a sealing order. It is a two part test. First, the party seeking the order must show that the order is necessary to prevent a serious risk to an important public interest which cannot be protected by other reasonable alternative methods. Second, they must establish that the salutary effects of the sealing order outweigh its deleterious effects. (paragraph 6)
The Court stated that the motion judge had pointed to two concerns which satisfied him that the sealing orders were necessary. First, he referred to the need to protect the privacy and dignity of the victims of violent crime and their loved ones. Second, he referred to the reasonable apprehension of risk to those who have an interest in receiving or administering the assets of the deceased.
On Appeal, the court held that “Personal concerns cannot, without more, justify an order sealing material that would normally be available to the public under the open court principle” and stated that the principle must have a public interest component. The court did not find that the privacy and dignity of the victims and their loved ones rose to the level of having a public interest component (at paragraph 11).
The court noted that the second interest the motions judge identified, the personal safety of individuals or an identifiable group of individuals, is an important public interest that can warrant a sealing order. To do so, the court held “[t]he evidence offered in support of the order must, however, justify a finding of a real risk.” (at paragraph 12) The court held that the evidence in support of the motion did not include statements of fact but rather only conclusory assertions and there was “…no evidence that could warrant a finding that disclosure of the content of the estate posed a real risk to anyone’s personal safety.” (at paragraph 13) As a result, the court set aside The sealing order.
It is our understanding from media reports that an appeal from the decision is forthcoming.