Supreme Court of Canada rules that the open court principle may be limited to protect privacy, but only in exceptional circumstances
When does protecting privacy justify restricting access to judicial proceedings and court files, all of which are presumptively open to the public? Sherman Estate v. Donovan, 2021 SCC 25, released on June 11, 2021, provides the Supreme Court of Canada’s much-anticipated answer: that, although the public interest in privacy may justify limiting judicial openness, it will only so in limited, exceptional circumstances.
Barry and Honey Sherman were found dead in their Toronto home in December 2017. Their estate trustees sought and obtained sealing orders of the probate files of their respective estates. They argued, and the Ontario Superior Court of Justice agreed, that entirely foreclosing public access to the probate files was necessary to protect the privacy and dignity of the deceased Shermans and their loved ones.
An investigative journalist, Kevin Donovan of the Toronto Star, appealed the sealing orders to the Court of Appeal for Ontario, which set them aside. According to the Court of Appeal, “[p]ersonal concerns cannot, without more, justify an order sealing material that would normally be available to the public under the open court principle” (Donovan v. Sherman Estate, 2019 ONCA 376, at para. 10).
The estate trustees appealed with leave to the Supreme Court of Canada. They lost. The Court unanimously dismissed the appeal. In reasons by Justice Kasirer, the Court agreed with the Court of Appeal that the sealing orders should not have been granted. The presumption that the probate files, like all court files, must be accessible to the public had not been displaced.
In reaching this result, the Court considered “whether privacy can amount to a public interest” sufficient to justify a limit on public access to a court proceeding or court file, “and, if so, whether openness puts privacy at serious risk here so as to justify the kind of orders sought by the appellants” (at para. 6). Though it answered the second question in the negative, its answer to the first question — that “an aspect of privacy”, namely, “the public interest in protecting human dignity” may justify “an exception to the open court principle” (at para. 7) — marks an important development in the law.
Sherman Estate teaches that, contrary to the Court of Appeal’s reasoning, there is a public interest in privacy that transcends “[p]ersonal concerns”. This public interest can indeed justify limiting the open court principle, such as by granting a sealing order or imposing a publication ban. This is a “high bar” (at para. 34), however, and the constitutional guarantee of open courts may only be displaced in exceptional circumstances, when the dissemination of personal information, “because of its highly sensitive character, … would occasion an affront to [an individual’s] dignity that society as a whole has a stake in protecting” (at para. 33).
Here are what we consider to be the five key takeaways from the Court’s judgment.
- The test for a confidentiality order remains the Sierra Club test. The Court confirmed that, “[i]n 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” (at para. 38, citing Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41).
- To obtain a confidentiality order for the purpose of protecting privacy, an applicant must establish that the order is necessary to prevent a serious risk of harm to their dignity. With respect to the first step of the test, the Court ruled that, “[i]nsofar as privacy serves to protect individuals from [an affront to a person’s dignity from the dissemination of personal information in open court], it is an important public interest relevant under Sierra Club” (at para. 33). To engage this important public interest, an applicant for a confidentiality order “must show on the facts of the case 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” (at para. 35). It will not be enough to establish “that information about individuals will escape the control of the person concerned — which will be true in every case”; the applicant must establish that “this particular information concerns who the individuals are as people in a manner that undermines their dignity” (at para. 94).
- Courts may consider the probability of dissemination, including further dissemination, of the information sought to be protected. At the first step of the test, “the risk to the privacy interest related to the protection of dignity will be more serious the more likely it is that the information will be disseminated” (at para. 82). Still, the applicant need not establish with certainty that the personal information will be disseminated in the absence of an order; “[r]ather, courts may merely discern probability [of dissemination] in light of the totality of the circumstances” (at para. 83). In doing so, courts should be mindful of the ease with which personal information may be digitally communicated and cross-referenced and, “[i]n 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” (at para. 80). Importantly, in considering the potential for dissemination, “[t]he fact that certain 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” (at para. 81).
- In granting a confidentiality order, the court must restrict the order as much as reasonably possible to prevent the serious risk to an important public interest. A publication ban — which “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” (at para. 105) — is less onerous than a sealing order. Thus, at the second step of the test, a court must consider whether a publication ban would reasonably avoid a serious risk of harm to an individual’s dignity. If it would, then the court may not grant a sealing order instead.
- A serious risk to privacy may be outweighed by the public interest in airing important and legally relevant information in open court. With respect to the third, balancing step of the test, the Court affirmed that, “[i]n 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” (at para. 106). If it is, then this may tip the scales in favour of openness and away from protecting privacy.
In Sherman Estate, the Court took care not to let its endorsement of the public interest in privacy undermine the strong presumption of judicial openness. It affirmed that “covertness in court proceedings must be exceptional” (at para. 63). As lower courts apply the Court’s judgment, they will be obliged to follow this instruction as they flesh out the circumstances in which information is sufficiently “intimate or personal” (at para. 75) that its public disclosure would “would result not just in discomfort or embarrassment, but in an affront to the affected person’s dignity” (at para. 7). Executing this balancing act will be a continuing challenge as the protection of privacy becomes an ever-more-paramount concern in an increasingly data-driven society.
Sherman Estate may also have broader implications for privacy law. Justice Kasirer observes that “[p]rivacy 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” (at para. 81). As noted above, this means that an individual may retain a judicially enforceable privacy interest in preventing the further or more widespread dissemination of information that “is already accessible to some segment of the public” (ibid.). It also suggests that, in determining disputes about the disclosure of personal information, courts will look beyond whether that information is “private” or not and consider whether it is sufficiently sensitive that its disclosure could engage the public interest in preventing affronts to individual dignity.
Sherman Estate makes clear that “aspects of privacy, such as dignity, may constitute important public interests in and of themselves” (at para. 54) for the purpose of justifying limits on judicial openness. If the protection of an individual’s personal information meets the “high bar” (at para. 62) required to obtain a confidentiality order, then the constitutional guarantee of open courts may yield to the extent necessary to prevent a serious risk of harm to the individual’s dignity.
McCarthy Tétrault acted for the British Columbia Civil Liberties Association as an intervener in the Sherman Estate appeal in the Supreme Court of Canada.
Sherman Estate v. Donovan, 2021 SCC 25
Date of Decision: June 11, 2021