Can you protect the privacy of your court documents from public?
On December 15, 2017, philanthropist billionaire couple Bernard and Honey Sherman were found dead in their Toronto home. To date, the identities of their alleged perpetrators are unknown and deaths are being investigated as homicides. The estate trustees obtained sealing orders for the probate files. A sealing order prohibits access to information to anyone except the parties identified in the order. The sealing orders can be obtained by the court or mandated by the criminal code.
However, these orders were challenged by the renowned newspaper. Although the application judge sealed the probate files, the Court of Appeal unanimously allowed the appeal and revoked the sealing orders. The case was finally decided by the Supreme Court of Canada. Interestingly, the case delves around significant issues of court openness, privacy rights, and the right to dignity.
In Sherman Estate v. Donovan, 2021 SCC 25 (CanLII), the SCC evaluated the facts of the case held that the Trustees were not entitled to any discretionary order limiting the open court principle, including the sealing orders they initially obtained. It further observed that obtaining a certificate of appointment of an estate trustee in Ontario is a court proceeding to discourage mischief, ensure confidence in the administration of justice through transparency, and form a basis of openness. The case also discussed the test for discretionary limits on openness.
Discretionary Limits On Openness-
The openness in the judicial process can be limited only if the applicant succeeds in establishing-
(1) court openness poses a serious risk to an important public interest;
Only certain privacy interests such as confidentiality, disclosure of sexual orientation, history of substance abuse, criminality, HIV status may qualify as public interest. In this case, no such sensitive private information was at stake. The court observed that the matters on probate files are not “quintessentially private or fundamentally administrative”.
(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk;
The determination of serious risk to the stipulated interest depends on factual context. In the event, the dignity is at serious risk, it needs to be protected. For instance, if the information reveals personal or intimate details about the individual like lifestyle or experiences, it may affect their right to dignity and privacy. When the information is sufficiently sensitive to an individual’s core, then the court must evaluate the effect of the risk with the factual matrix of the case. The seriousness of risk needs to be analyzed in the context of the availability of such information in the public domain. In this case, the risk was found to be non-serious. The estate trustees should have applied for a less onerous remedy for privacy rights. They must have sought a ban on publication rather than seeking sealing orders.
(3) and as a matter of proportionality, the benefits of the order outweigh its negative effects.
The particular order must be sought necessary as the benefits of the order outweigh the negative effects “including the effects on the right to free expression and the public interest in open and accessible court proceedings” (Sierra Club Case). This is a contextual test relying on the openness of courts. The court observed that the interest in “important and legally relevant information being aired in open court may well overcome any concern for the privacy interests in that same information.”
Conclusion
Claiming discretionary limits on openness requires a factual balancing. Only when these three prerequisites are established, the party can claim discretionary limits on openness such as a publication ban, sealing orders, an order excluding the public from a hearing, or a redaction order, subject to valid legislative enactments. (Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41)
Inherently, the privacy of individuals is at risk in court proceedings. Privacy needs to be viewed in terms of dignity must be shown at serious risk, to claim limits on judicial openness. The information needs to be private, highly sensitive, or at risk of physical harm. The apprehension of harm must not be speculated but reasonably inferred. It is important to justify that the right to free expression and public interest of the open and accessible court proceedings is outweighed by the individual’s right to privacy and dignity.
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