Lives of Barry and Honey Sherman trustees at risk if estate documents made public, top court hears

Unsealing the estate files of slain Toronto billionaire couple Barry and Honey Sherman is a breach of privacy that could put the lives of their beneficiaries and trustees at physical risk, Canada's top court heard on Tuesday.

In a case challenging the open court system in Canada, Chantelle Cseh, a lawyer for the estate of the Shermans, argued that there's a reasonable expectation to privacy in certain circumstances and that privacy expectation is a right protected by the Charter.

Cseh said that while providing scientific or empirical evidence to prove harm would be impossible, it is reasonable to infer that there could be risks of harm to the beneficiaries and trustees of the Shermans. 

"When we look at the likelihood of it happening, it might be low, but the likelihood of the Shermans being murdered was also low," Cseh said.

"The magnitude, the gravity, the graveness of the potential consequence is something that should be taken into account by the court," she said.

'Forseeable harm is grave' judge said

Cseh quoted the application judge who had ordered files sealed and said the "risk of harm is foreseeable and the foreseeable harm is grave."

The case, which included intervenors from media organizations and civil liberty groups, centres around documents pertaining to the will and other estate files related to Barry and Honey Sherman, who were found dead in the basement of their north Toronto home on Dec. 15, 2017. 

Barry Sherman was the billionaire chairman and CEO of pharmaceutical firm Apotex Inc. He and his wife were philanthropists and well-known members of Toronto society.

In June 2018, a judge issued an order protecting their files, which concern the appointment of estate trustees and would ordinarily be available for public inspection. 

The order stemmed from the notion that individuals named as beneficiaries or trustees of the estates would be at risk of harm because the Shermans were found slain in their home.

Soon after, Toronto Star reporter Kevin Donovan, who has written extensively about the sensational case, applied to the Ontario Superior Court of Justice to have the files unsealed.

In August 2018, the court dismissed his application and ordered that the files relating to the Shermans' estates be sealed for two years. The Ontario Court of Appeal overturned the decision, saying the idea that trustees would be at risk amounted to speculation and provided no basis for a sealing order.

During Tuesday's hearing, Supreme Court Justice Malcolm Rowe accused Cseh of trying to flip the open court principle.

"Saying that we depart from the open court principle is an extraordinary step, not an ordinary way of doing business," he said.

But Cseh said such protections should only come into play in cases where there is a reasonable expectation of privacy and a risk to that privacy.

"This court has held that privacy and freedom of expression are equally important rights," Cseh said. "So while I accept the importance of court openness, I think the suggestion that we are turning it on its head is not necessarily correct."

Dealing with an average estate file where there's not the same risk of publicity, or the same risk of physical harm would likely not meet the standard for privacy, she said, and any information in that case would become publicly available.

Court speculates criminal organization responsible

Supreme Court Justice Michael Moldaver, who speculated that those responsible for the deaths of the Shermans belonged to a sophisticated criminal organization, questioned whether such a sealing order would have the effect of protecting identities.

"So it's fanciful to think that [the criminal organization] wouldn't know who the beneficiaries are, who the children are, who the grandchildren are and everything else about this family. And so what are we protecting?"

But Cseh said it is speculation to know who killed the couple.

"It could be the case that the murderer has all this information," she said. "But it could be the case that they don't.

"We are so confident that they are so sophisticated that they would have this information that we're willing to unseal the court files?"

Supreme Court Justice Russell Brown said, however, the most crucial point in this case is to understand what evidence is necessary to satisfy that harm is a real potential.

"Surely it cannot be just, 'Oh, I'm a victim or a relative of the victim of violent crime who might be a beneficiary, who might be a trustee,' " he said. "It surely has to be more than that, otherwise we're going to have sealing orders on the estates of every person who's a victim of murder."

Cseh said that court has said that absent scientific or empirical evidence, the court can find harm by applying reason and logic.

"And we say that that is precisely what the application judge did here."

Cseh was asked about the potential for a publication ban, instead of a sealing order. But she said such a ban would still allow any member of the public to obtain the files and learn details about the individuals, including names, addresses, birth dates and financial information.

But Iris Fischer, a lawyer for the Toronto Star and Donovan, argued that the open court system is Charter protected, that it's based on centuries of common law, foundational to democracy and critical to the public's confidence in the administration of justice.

"And it is this commonplace, yet fundamentally important access to court files that this court should preserve in this case," she said.

Star reporter cross-examined police officer

Last year, at the Ontario Court of Justice, and as part of the Star's application to unseal search warrants, Donovan cross-examined a Toronto police officer.

Fischer said that during that cross-examination, the detective in the case established he was unaware of any risk posed to the people named in the estate court files, nor did he provide any information to support the theory that the individuals named in those documents would be harmed if their information was released.

"This definitively deals with it," she said.

But Brown pointed out that the police officer didn't say there was no risk, just that he was unaware of a risk.

"So how is this relevant? And it certainly doesn't definitively deal with it. That's misleading," he said.

However Fischer countered that if the only police detective working full time on this case said he wasn't worried about such information being unsealed, then "that's very strong evidence that there isn't a risk."

The court has reserved its decision.