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Sherman Estate and Donovan 2021 SCC 25 – Breakdown

The facts of this case revolve around the unexplained double homicide of a billionaire couple in Toronto. The estate trustees felt uncomfortable to administrate the Sherman estate under intense public scrutiny and incidentally feared for their life due to the perpetrator being unknown and still at large. The application judge sealed the probate files to protect the privacy and safety of the trustees. The Ontario Court of Appeal lifted the sealing orders concluding that the privacy interest advanced lacked a public interest quality and that there was no evidence of a real risk to their physical safety. Finally, Justice Kasirer for a unanimous Supreme Court confirmed the lifting of the sealing orders and took the opportunity to clarify the test.

The constitutionally protected Open court principle

The open court principle entrenched in s.2(b) of the Charter represents a central feature of a liberal democracy. Accordingly, there is a strong presumption in favor of open courts. Discomfort, inconvenience, and embarrassment are not enough to overturn the presumption.

Notwithstanding, proceedings in an open court can lead to the dissemination of highly sensitive personal information that would result not just in discomfort and embarrassment but an affront to the affected person’s dignity. Hence, a few limited cases with exceptional circumstances may justify a restriction of the open court principle.

The Sierra Club test to justify a restriction of the open court principle

Where a discretionary court order limiting constitutionally-protected openness is sought – for example a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order – the applicant must demonstrate, as a threshold requirement that (1)openness presents a serious risk to a competing interest of public importance; (2) that the order is necessary to prevent this serious risk to the identified interest, because reasonably alternative measures will not prevent this risk; (3) and that, as matter of proportionality, the benefits of the order outweigh its negative effects. (Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41)

While trustees framed privacy as a public interest in light of the threats individuals face through technology-facilitated widespread dissemination of personally sensitive information, matters in a probate file are not quintessentially private, but fundamentally administrative. Therefore the strong presumption of openness remains.

The public character of a privacy interest (underscore + colors mine)

In some of its manifestations, privacy does have a social importance beyond the person most immediately concerned (at [46]). Circumstances do exist where an aspect of a person’s private life has a plain public interest dimension ([32]). Where a narrower dimension of privacy, rooted in the public interest in protecting human dignity, is shown to be at serious risk, an exception to the open court principle may be justified ([7], [61]).

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([33]).

The 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. (…) 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 ([34])

To prove that the dignity dimension of privacy is at serious risk, the applicant must show that the information in the court file is sufficiently sensitive 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. ([35]).

The proposition that privacy is important, not only to the affected individual but to our society, has deep roots in the jurisprudence of the Supreme Court outside of the context of the test for discretionary limits on court openness. This background helps to explain why privacy cannot be rejected as a mere personal concern.

However only specific interests can qualify as important public interests under Sierra Club [49].

([54]) A risk to personal privacy may be tied to a risk of psychological harm, as it was in Bragg, para.14. But concerns for privacy may not always coincide with a desire to avoid psychological harm, and may focus instead, for example, on protecting one’s professional standing (R. v. Patterson (1998), 102 BCAC 200, at 76, 78, 87-88). Similarly there may be circumstances where the prospect of surrendering the personal information necessary to pursue a legal claim may deter an individual from bringing that claim (S. v. Lamontagne, 2020 QCCA 663). Access to justice concerns do not apply where the privacy interest to be protected is that of a third party to the litigation, such as a witness, whose access to the courts is not at stake and who has no choice available to terminate the litigation and avoid any privacy impacts (Himel v. Greenberg, 2010 ONSC 2325).

The dignity dimension of privacy

This Court has described the nature of limits of privacy as being in a state of theoretical disarray (R. v. Spencer, 2014 SCC 43). Much turns on the context in which privacy is invoked (at [60]). The problem of privacy’s complexity can be attenuated by focusing on the purpose underlying the public protection of privacy as it is relevant to the judicial process, in order to fix precisely on that aspect which transcends the interests of the parties in this context ([61]).

Protection of dignity

Understanding privacy as predicated on dignity has been advanced as useful in connection with challenges brought by digital communications ([69])

All of society has a stake in the preservation of dignity, notwithstanding personal connections to the individuals concerned ([68]).

Protection of dignity should be understood to be seriously at risk only in limited cases.

Violations of privacy that cause a loss of control over fundamental personal information about oneself are damaging to dignity because they erode one’s ability to present aspects of oneself to others in a selective manner. Dignity used in this context, is a social concept that involves presenting core aspects of oneself to others in a considered and controlled manner. Dignity is eroded where individuals lose control over this core identity-giving information about themselves, because a highly sensitive aspect of who they are that they did not consciously decide to share is now available to others and may shape how they are seen in public ([71]).

Where dignity is impaired, the impact on the individual is not theoretical but could engender real human consequences, including psychological distress (Bragg, at para.23). Privacy is essential to the well-being of individuals (Laforest J. concurring in Dyment). Viewed in this way, a privacy interest, where it shields the core information associated with dignity necessary to individual well-being begins to look much like the physical safety interest also raised in this case.

A threat to individuals’ dignity arises when information revealing core aspects of their private lives is disseminated through open court proceedings ([73]).

This privacy interest while determined in reference to the broader factual setting, will be at serious risk only where the sensitivity of the information strikes at the subject’s more intimate self ([74]).

If the interest is ultimately about safeguarding a person’s dignity, that interest will be undermined when the information reveals something sensitive about them as an individual, as opposed to generic information that reveals little if anything about who they are as a person. Therefore, the information that will be revealed in court openness must consist of intimate or personal details about an individual, previously described by the Court in its s.8 jurisprudence as the biographical core ([75]).

The Court doesn’t provide an exhaustive catalogue of the range of sensitive personal information that, if exposed, could give rise to serious risk, but lists a number of grounds found in s.8 precedent where courts have demonstrated a willingness to recognize the sensitivity of information and the last two advanced by an intervener:

  • stigmatized medical conditions
  • stigmatized work
  • sexual orientation
  • subjection to sexual assault or harassment
  • detailed information about family structure
  • work history

The question is whether the information reveals something intimate and personal about the individual, their lifestyle or their experiences ([78]).

Privacy, technology, and risk

Courts today should be sensitive to the information technology context, which has increased the ease with which information can be communicated and cross-referenced. In this context, it may well be difficult for courts to be sure that information will not be broadly disseminated in the absence of an order.

Just because information is already accessible to some segment of the public does not mean that making it available through the court process will not exacerbate the risk to privacy. Privacy is not a binary concept, that is, information is not simply either private or public, especially because, by reason of technology in particular, absolute confidentiality is best thought of as elusive. The fact that some information is already available somewhere in the public sphere does not preclude further harm to the privacy interest by additional dissemination, particularly if the feared dissemination of highly sensitive information is broader or more easily accessible ([81])

Protection of dignity will be more serious the more likely it is that the information will be disseminated. While decided in a different context, the Court has held that the magnitude of risk is a product of both the gravity of the feared harm and its probability (R. v. Mabior, 2012 SCC 47).

An applicant will only be able to establish that the risk is sufficient to justify a limit on openness in exceptional cases, where the threatened loss of control over information about oneself is so fundamental that it strikes meaningfully at individual dignity. These circumstances engage “social values of super-ordinate importance” beyond the more ordinary intrusions inherent to participating in the judicial process.

It is essential to show not only that information about individuals will escape the control of the person concerned – which will be true in every case – but that this particular information concerns who the individuals are as people in a manner that undermines their dignity. ([94])

The trustees failed to demonstrate that the information that would be revealed would strike at their biographical core in a way that would undermine their control over the expression of their identities. ([91])