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<< back to all ArticlesAn Open Book: Supreme Court of Canada gives new guidance on when individual privacy may justify limits on the open court principle
The exposure of one’s private personal information in a public court file can be inconvenient, embarrassing, or distressing. But, in Canada, court proceedings are presumptively open and accessible to the public and media (the open court principle).
How can this presumption be overcome? When will the importance of privacy limit the open court principle?
The “Sherman” Decision
The tension between privacy and openness was at the heart of the Supreme Court’s recent decision in Sherman Estate v Donovan, 2021 SCC 25.
In this case, the Court decided that privacy can indeed be an “important public interest” that justifies limits on the open-court principle – but only if the information in a court file would reveal intimate or personal details about an individual in a way that would offend that person’s personal dignity.
The Facts
The Sherman case has a tragic backstory. In late 2017, wealthy Toronto philanthropists Barry and Honey Sherman were found dead at their home. Toronto police opened a murder investigation, but the case remains unsolved.
The unexplained deaths of two of Canada’s wealthiest people attracted huge public and media attention. Citing privacy and safety concerns, the trustees of the Sherman estate successfully sought a court order sealing the court files off from public access. These files contained the names and addresses of the estate beneficiaries. The Toronto Star appealed the sealing order, on the basis that it violated the constitutional rights of freedom of expression and freedom of the press.
The Supreme Court decided in favour of the Star, holding that opening the court files in this case did not rise to the level of a “serious risk to an important public interest”.
The Open Court Principle
The open court principle requires that court proceedings be accessible to members of the public and media, unless there is a valid reason not to permit public access. This principle is rooted in the constitutional guarantee of free expression. Open courts allow the public to access court information and processes, which in turn allow the public to discuss and critique those processes. This public scrutiny of the justice system is an important part of our democratic society.
The Test for Discretionary Limits on Court Openness
Restrictions on public access to court documents and proceedings are permitted only in limited circumstances. A person asking the court to limit public access must establish that:
- court openness poses a serious risk to an important public interest;
- the restrictions sought are necessary to prevent this serious risk to the identified public interest, because reasonable alternative measures will not prevent this risk; and,
- the benefits of the restrictions outweigh their negative effects.
Privacy as an “Important Public Interest”
The Sherman decision broke new ground by holding that personal privacy can be a public interest which justifies limiting the open court principle, but only if there is a serious risk to an individual’s dignity.
By their nature, court proceedings can be uncomfortable and embarrassing. The Court clarified that, in order for dignity to be at stake, the information must relate to core aspects of an individual’s private life, such as “intimate” or personal details about that person. Dignity is impacted when an individual loses control over their core information – where sensitive information that they did not decide to share becomes publicly available and affects how they are seen by others.
In each case, the question is whether the information reveals something intimate and personal about the individual, their lifestyle, or their experiences. Although the Court did not set out a full list of the types of information that would rise to this level, some examples that were given included stigmatized medical conditions, sexual orientation, and in some circumstances, one’s family structure and work history.
In the Sherman case, the Supreme Court held that the information the trustees sought to protect was not highly sensitive. Therefore, there was no serious risk to the public interest in privacy. The information in the estate files might reveal the identity of the beneficiaries of the Sherman estate, and some basic information such as addresses, but this information does not impact “individual dignity”: it does not provide insight into who these people are as individuals, nor would it affect their ability to control how they are viewed by others.
The Upshot
Court proceedings will often pose some challenge to privacy – information that would have stayed private may be revealed if a dispute is resolved in the courts. But the fact that compromising information is in a court file is not, by itself, enough reason to depart from the principle of open courts.
In Sherman Estate, the Supreme Court struck a balance between two competing public interests: protecting individual dignity and preserving public access to information.
By setting a high standard – i.e. a serious risk to individual dignity – that must be met before private concerns can justify limiting the openness of court proceedings, the Court reinforced the idea that courts are presumptively open. At the same time, the focus on individual dignity enables courts to limit public access where highly sensitive personal information is at risk of being disclosed.
If you are a member of the media, and you have questions or require advice on matters related to the open court principle, reach out to our Media Team.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.
