2021 SCC 25, 2021 SCC 25

SUPREME COURT OF CANADA Citation: Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75 Appeal Heard: October 6, 2020 Judgment Rendered: June 11, 2021 Docket: 38695 Between : Estate of Bernard Sherman and Trustees of the Estate and Estate of Honey Sherman and Trustees of the Estate Appellants and Kevin Donovan and Toronto Star Newspapers Ltd.

Respondents - and - Attorney General of Ontario, Attorney General of British Columbia, Canadian Civil Liberties Association, Income Security Advocacy Centre, Ad IDEM/Canadian Media Lawyers Association, Postmedia Network Inc., CTV, a Division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, The Globe and Mail Inc., Citytv, a division of Rogers Media Inc., British Columbia Civil Liberties Association, HIV & AIDS Legal Clinic Ontario, HIV Legal Network and Mental Health Legal Committee Interveners Coram: Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ.

Reasons for Judgment: (paras. 1 to 108) Kasirer J. (Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe and Martin JJ. concurring)

Estate of Bernard Sherman and Trustees of the Estate and Estate of Honey Sherman and Trustees of the Estate Appellants v. Kevin Donovan and Toronto Star Newspapers Ltd.

Respondents and Attorney General of Ontario, Attorney General of British Columbia, Canadian Civil Liberties Association, Income Security Advocacy Centre, Ad IDEM/Canadian Media Lawyers Association, Postmedia Network Inc., CTV, a Division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, The Globe and Mail Inc., Citytv, a division of Rogers Media Inc., British Columbia Civil Liberties Association, HIV & AIDS Legal Clinic Ontario, HIV Legal Network and Mental Health Legal Committee Interveners Indexed as: Sherman Estate v.

Donovan 2021 SCC 25 File No.: 38695. 2020: October 6; 2021: June 11.

Present: Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal for ontario Courts — Open court principle — Sealing orders — Discretionary limits on court openness — Important public interest — Privacy — Dignity — Physical safety — Unexplained deaths of prominent couple generating intense public scrutiny and prompting trustees of estates to apply for sealing of probate files — W hether privacy and physical safety concerns advanced by estate trustees amount to important public interests at such serious risk to justify issuance of sealing orders.

A prominent couple was found dead in their home. Their deaths had no apparent explanation and generated intense public interest. To this day, the identity and motive of those responsible remain unknown , and the deaths are being investigated as homicides . The estate trustees sought to stem the intense press scrutiny prompted by the events by seeking sealing orders of the probate files. Initially granted, the sealing orders were challenged by a journalist who had reported on the couple’s deaths , and by the newspaper for which he wrote.

The application judge sealed the probate files, concluding that the harmful effects of the sealing orders were substantially outweighed by the salutary effects on privacy and physical safety interests. The Court of Appeal unanimously allowed the appeal and lifted the sealing orders. It concluded that the privacy interest advanced lacked a public interest quality, and that there was no evidence of a real risk to anyone’s physical safety. Held : The appeal should be dismissed.

The estate trustees have failed to establish a serious risk to an important public interest under the test for discretionary limits on court openness. As such, the sealing orders should not have been issued. Open courts can be a source of inconvenience and embarrassment, but this discomfort is not, as a general matter, enough to overturn the strong presumption of openness. That said, personal information disseminated in open court can be more than a source of discomfort and may result in an affront to a person’s dignity.

Insofar as privacy serves to protect individuals from this affront, it is an important public interest and a court can make an exception to the open court principle if it is at serious risk. In this case, the risks to privacy and physical safety cannot be said to be sufficiently serious. Court proceedings are presumptively open to the public. Court openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of Canadian democracy. Reporting on court proceedings by a free press

is often said to be inseparable from the principle of open justice. The open court principle is engaged by all judicial proceedings, whatever their nature. Matters in a probate file are not quintessentially private or fundamentally administrative. Obtaining a certificate of appointment of estate trustee in Ontario is a court proceeding engaging the fundamental rationale for openness — discouraging mischief and ensuring confidence in the administration of justice through transparency — such that the strong presumption of openness applies.

The test for discretionary limits on court openness is directed at maintaining the presumption while offering sufficient flexibility for courts to protect other public interests where they arise.

In 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.

The recognized scope of what interests might justify a discretionary exception to open courts has broadened over time and now extends generally to important public interests. The breadth of this category transcends the interests of the parties to the dispute and provides significant flexibility to address harm to fundamental values in our society that unqualified openness could cause . While there is no closed list of important public interests, courts must be cautious and alive to the fundamental importance of the open court rule when they are identifying them.

Determining what is an important public interest can be done in the abstract at the level of general principles that extend beyond the parties to the particular dispute. By contrast, whether that interest is at serious risk is a fact-based finding that is necessarily made in context. The identification of an important interest and the seriousness of the risk to that interest are thus theoretically separate and qualitatively distinct operations. Privacy has been championed as a fundamental consideration in a free society , and its public importance has been recognized in various settings.

Though an individual’s privacy will be pre-eminently important to that individual, the protection of privacy is also in the interest of society as a whole. Privacy therefore cannot be rejected as a mere personal concern: some personal concerns relating to privacy overlap with public interests. However, cast too broadly, the recognition of a public interest in privacy could threaten the strong presumption of openness. The privacy of individuals will be at risk in many court proceedings. Furthermore, privacy is a complex and contextual concept, making it difficult for courts to measure.

Recognizing an important interest in privacy generally would accordingly be unworkable. Instead, the public character of the privacy interest involves protecting individuals from the threat to their dignity. Dignity in this sense involves the right to present core aspects of oneself to others in a considered and controlled manner; it is an expression of an individual’s unique personality or personhood. This interest is consistent with the Court’s emphasis on the importance of privacy, but is tailored to preserve the strong presumption of openness.

Privacy as predicated on dignity will be at serious risk in limited circumstances. Neither the sensibilities of individuals nor the fact that openness is disadvantageous, embarrassing or distressing to certain individuals will generally on their own warrant interference with court openness. Dignity will be at serious risk only where the information that would be disseminated as a result of court openness is sufficiently sensitive or private such that openness can be shown to meaningfully strike at the individual’s biographical core in a manner that threatens their integrity.

The question is whether the information reveals something intimate and personal about the individual, their lifestyle or their experiences. In cases where the information is sufficiently sensitive to strike at an individual’s biographical core, a court must then ask whether a serious risk to the interest is made out in the full factual context of the case. The seriousness of the risk may be affected by the extent to which information is disseminated and already in the public domain, and the probability of the dissemination actually occurring.

The burden is on the applicant to show that privacy, understood in reference to dignity, is at serious risk; this erects a fact-specific threshold consistent with the presumption of openness. There is also an important public interest in protecting individuals from physical harm, but a discretionary order limiting court openness can only be made where there is a serious risk to this important public interest. Direct evidence is not necessarily required to establish a serious risk to an important public interest, as objectively discernable harm may be identified on the basis of logical inferences.

But this process of inferential reasoning is not a licence to engage in impermissible speculation. It is not just the probability of the feared harm, but also the gravity of the harm itself that is relevant to the assessment of serious risk. Where the feared harm is particularly serious, the probability that this harm materialize need not be shown to be likely, but must still be more than negligible, fanciful or speculative. Mere assertions of grave physical harm are therefore insufficient.

In addition to a serious risk to an important interest, it must be shown that the particular order sought is necessary to address the risk and that the benefits of the order outweigh its negative effects as a matter of proportionality. This contextual balancing, informed by the importance of the open court principle, presents a final barrier to those seeking a discretionary limit on court openness for the purposes of privacy protection. In the present case, the risk to the important public interest in privacy, defined in reference to dignity, is not serious.

The information contained in the probate files does not reveal anything particularly private or highly sensitive. It has not been shown that it would strike at the biographical core of the affected individuals in a way that would undermine their control over the expression of their identities. Furthermore, the record does not show a serious risk of physical harm. The estate trustees asked the application judge to infer not only the fact that harm would befall the affected individuals, but also that a person or persons exist who wish to harm them.

To infer all this on the basis of the deaths and the association of the affected individuals with the deceased is not a reasonable inference but is speculation. Even if the estate trustees had succeeded in showing a serious risk to privacy, a publication ban — less constraining on openness than the sealing orders — would have likely been sufficient as a reasonable alternative to prevent this risk. As a final barrier, the estate trustees would have had to show that the benefits of any order necessary to protect from a serious risk to the important public interest outweighed the harmful effects of the order.

Cases Cited

Applied: Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522; referred to:Canadian Broadcasting Corp. v. New Brunswick (Attorney General), (SCC), [1996] 3 S.C.R. 480; Vancouver Sun (Re),2004 SCC 43, [2004] 2 S.C.R. 332; Khuja v. Times Newspapers Ltd., [2017] UKSC 49, [2019] A.C. 161; Edmonton Journal v. Alberta(Attorney General), (SCC), [1989] 2 S.C.R. 1326; Dagenais v. Canadian Broadcasting Corp., (SCC),[1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Lavigne v.

Canada (Office of the Commissioner of OfficialLanguages), 2002 SCC 53, [2002] 2 S.C.R. 773; Dagg v. Canada (Minister of Finance), (SCC), [1997] 2 S.C.R. 403;R. v. Henry, 2009 BCCA 86, 270 B.C.A.C. 5; Attorney General of Nova Scotia v. MacIntyre, (SCC), [1982] 1 S.C.R.175; A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567; Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41,[2005] 2 S.C.R. 188; Re Southam Inc. and The Queen (No.1) (1983), 41 O.R. (2d) 11; R. v. Oakes, (SCC), [1986] 1S.C.R. 103; Otis v. Otis (2004), 7 E.T.R. (3d) 221; H. (M.E.) v.

Williams, 2012 ONCA 35, 108 O.R. (3d) 321; F.N. (Re), 2000 SCC 35,[2000] 1 S.C.R. 880; R. v. Dyment, (SCC), [1988] 2 S.C.R. 417; Alberta (Information and Privacy Commissioner) v.United Food and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733; Toronto Star Newspaper Ltd. v. R., 2012 ONCJ27, 289 C.C.C. (3d) 549; Douez v. Facebook, Inc., 2017 SCC 33, [2017] 1 S.C.R. 751; R. v. Paterson (1998), (BCCA), 102 B.C.A.C. 200; S. v. Lamontagne, 2020 QCCA 663; Himel v. Greenberg, 2010 ONSC 2325, 93 R.F.L. (6th) 357; A.B. v.Canada (Citizenship and Immigration), 2017 FC 629; R. v.

Pickton, 2010 BCSC 1198; Lac d’Amiante du Québec Ltée v. 2858-0702Québec Inc., 2001 SCC 51, [2001] 2 S.C.R. 743; 3834310 Canada inc. v. Chamberland, ; R. v. Spencer, 2014 SCC 43,[2014] 2 S.C.R. 212; Coltsfoot Publishing Ltd. v. Foster-Jacques, 2012 NSCA 83, 320 N.S.R. (2d) 166; Goulet v. Transamerica LifeInsurance Co. of Canada, 2002 SCC 21, [2002] 1 S.C.R. 719; Godbout v. Longueuil (Ville de), (QC CA), [1995]R.J.Q. 2561, aff’d (SCC), [1997] 3 S.C.R. 844; A. v. B., ; R. v. Plant, (SCC), [1993]3 S.C.R. 281; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v.

Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; Work Safe Twerk Safe v.Her Majesty the Queen in Right of Ontario, 2021 ONSC 1100; Fedeli v. Brown, 2020 ONSC 994; R. v. Marakah, 2017 SCC 59, [2017]2 S.C.R. 608; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584; R. v. Chanmany,2016 ONCA 576, 352 O.A.C. 121; X. v. Y., 2011 BCSC 943, 21 B.C.L.R. (5th) 410; R. v. Esseghaier, 2017 ONCA 970, 356 C.C.C. (3d)455. Statutes and Regulations Cited Bill C-11,

An Act to enact the Consumer Privacy Protection Act and the Personal Information and Data Protection Tribunal Act and tomake consequential and related amendments to other Acts, 2nd Sess., 43rd Parl., 2020. Canadian Charter of Rights and Freedoms, ss. 2(b), 8. Charter of Human Rights and Freedoms, CQLR, c. C-12, s. 5. Civil Code of Québec, arts. 35 to 41. Code of Civil Procedure, CQLR, c. C-25.01, art. 12. Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31. Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5. Privacy Act, R.S.C. 1985, c. P-21.

Authors Cited Ardia, David S. “Privacy and Court Records: Online Access and the Loss of Practical Obscurity” (2017), 4 U. Ill. L. Rev. 1385. Austin, Lisa M. “Re-reading Westin” (2019), 20 Theor. Inq. L. 53. Bailey, Jane, and Jacquelyn Burkell. “Revisiting the Open Court Principle in an Era of Online Publication: Questioning PresumptivePublic Access to Parties’ and Witnesses’ Personal Information” (2016), 48 Ottawa L. Rev. 143. Cockfield, Arthur J. “Protecting the Social Value of Privacy in the Context of State Investigations Using New Technologies” (2007), 40U.B.C. L. Rev. 41. Eltis, Karen.

Courts, Litigants, and the Digital Age, 2nd ed. Toronto: Irwin Law, 2016. Eltis, Karen. “The Judicial System in the Digital Age: Revisiting the Relationship between Privacy and Accessibility in the CyberContext” (2011), 56 McGill L.J. 289. Ferland, Denis, et Benoît Emery. Précis de procédure civile du Québec, vol. 1, 6e éd. Montréal: Yvon Blais, 2020. Gewirtz, Paul. “Privacy and Speech”, [2001] Sup. Ct. Rev. 139. Guillemard, Sylvette, et Séverine Menétrey. Comprendre la procédure civile québécoise, 2e éd. Montréal: Yvon Blais, 2017.

Hughes, Kirsty. “A Behavioural Understanding of Privacy and its Implications for Privacy Law” (2012), 75 Mod. L. Rev. 806. Matheson, David. “Dignity and Selective Self-Presentation”, in Ian Kerr, Valerie Steeves and Carole Lucock, eds., Lessons from theIdentity Trail: Anonymity, Privacy and Identity in a Networked Society. New York: Oxford University Press, 2009, 319. McIsaac, Barbara, Kris Klein, and Shaun Brown. The Law of Privacy in Canada, vol. 1. Toronto: Thomson Reuters, 2000 (loose-leafupdated 2020, release 11).

McLachlin, Beverley. “Courts, Transparency and Public Confidence – To the Better Administration of Justice” (2003), 8 Deakin L. Rev. 1. Paton-Simpson, Elizabeth. “Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places” (2000), 50 U.T.L.J. 305. Perell, Paul M., and John W. Morden. The Law of Civil Procedure in Ontario , 4th ed. Toronto: LexisNexis, 2020. Québec. Ministère de la Justice. Commentaires de la ministre de la Justice: Code de procédure civile,

chapitre C-25.01 . Montréal: SOQUIJ, 2015. Rochette, Sébastien, et Jean-François Côté. “

Article 12 ”, dans Luc Chamberland, dir. Le grand collectif : Code de procédure civile — Commentaires et annotations , vol. 1, 5 e éd. Montréal: Yvon Blais, 2020. Rossiter, James. Law of Publication Bans, Private Hearings and Sealing Orders . Toronto: Thomson Reuters, 2006 (loose-leaf updated 2020, release 2). Solove, Daniel J. “Conceptualizing Privacy” (2002), 90 Cal. L. Rev. 1087. APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Rouleau and Hourigan JJ.A.), 2019 ONCA 376 , 47 E.T.R. (4th) 1, [2019] O.J.

No. 2373 (QL), 2019 CarswellOnt 6867 (WL Can.), setting aside a decision of Dunphy J., 2018 ONSC 4706 , 417 C.R.R. (2d) 321, 41 E.T.R. (4th) 126, 28 C.P.C. (8th) 102, [2018] O.J. No. 4121 (QL), 2018 CarswellOnt 13017 (WL Can.). Appeal dismissed. Chantelle Cseh and Timothy Youdan , for the appellants. Iris Fischer and Skye A. Sepp , for the respondents. Peter Scrutton , for the intervener the Attorney General of Ontario. Jaqueline Hughes , for the intervener the Attorney General of British Columbia. Ryder Gilliland , for the intervener the Canadian Civil Liberties Association.

Ewa Krajewska , for the intervener the Income Security Advocacy Centre. Robert S. Anderson , Q.C. , for the interveners Ad IDEM/Canadian Media Lawyers Association, Postmedia Network Inc., CTV, a Division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, The Globe and Mail Inc. and Citytv, a division of Rogers Media Inc. Adam Goldenberg , for the intervener the British Columbia Civil Liberties Association. Khalid Janmohamed , for the interveners the HIV & AIDS Legal Clinic Ontario, the HIV Legal Network and the Mental Health Legal Committee.

The judgment of the Court was delivered by Kasirer J. — I. Overview [ 1 ] This Court has been resolute in recognizing that the open court principle is protected by the constitutionally-entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy.

As a general rule, the public can attend hearings and consult court files and the press — the eyes and ears of the public — is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable. [ 2 ] Accordingly, there is a strong presumption in favour of open courts. It is understood that this allows for public scrutiny which can be the source of inconvenience and even embarrassment to those who feel that their engagement in the justice system brings intrusion into their private lives.

But this discomfort is not, as a general matter, enough to overturn the strong presumption that the public can attend hearings and that court files can be consulted and reported upon by the free press. [ 3 ] Notwithstanding this presumption, exceptional circumstances do arise where competing interests justify a restriction on 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 openness presents a serious risk to a competing interest of public importance. That this requirement is considered a high bar serves to maintain the strong presumption of open courts. Moreover, the protection of open courts does not stop there.

The applicant must still show that the order is necessary to prevent the risk and that, as a matter of proportionality, the benefits of that order restricting openness outweigh its negative effects. [ 4 ] This appeal turns on whether concerns advanced by persons seeking an exception to the ordinarily open court file in probate proceedings — the concerns for privacy of the affected individuals and their physical safety — amount to important public interests that are at such serious risk that the files should be sealed.

The parties to this appeal agree that physical safety is an important public interest that could justify a sealing order but disagree as to whether that interest would be at serious risk, in the circumstances of this case, should the files be unsealed. They further disagree whether privacy is in itself an important interest that could justify a sealing order. The appellants say that privacy is a public interest of sufficient import that can justify limits on openness, especially in light of the threats individuals face as technology facilitates widespread dissemination of personally sensitive information.

They argue that the Court

of Appeal was mistaken to say that personal concerns for privacy, without more, lack the public interest component that is properly the subject-matter of a sealing order. [ 5 ] This Court has, in different settings, consistently championed privacy as a fundamental consideration in a free society. Pointing to cases decided in other contexts, the appellants contend that privacy should be recognized here as a public interest that, on the facts of this case, substantiates their plea for orders sealing the probate files.

The respondents resist, recalling that privacy has generally been seen as a poor justification for an exception to openness.

After all, they say, virtually every court proceeding entails some disquiet for the lives of those concerned and these intrusions on privacy must be tolerated because open courts are essential to a healthy democracy. [ 6 ] This appeal offers, then, an occasion to decide whether privacy can amount to a public interest in the open court jurisprudence and, if so, whether openness puts privacy at serious risk here so as to justify the kind of orders sought by the appellants. [ 7 ] For the reasons that follow, I propose to recognize an aspect of privacy as an important public interest for the purposes of the relevant test from Sierra Club of Canada v.

Canada (Minister of Finance) , 2002 SCC 41 , [2002] 2 S.C.R. 522. Proceedings in open court can lead to the dissemination of highly sensitive personal information that would result not just in discomfort or embarrassment, but in an affront to the affected person’s dignity.

Where this narrower dimension of privacy, rooted in what I see as the public interest in protecting human dignity, is shown to be at serious risk, an exception to the open court principle may be justified. [ 8 ] In this case, and with this interest in mind, it cannot be said that the risk to privacy is sufficiently serious to overcome the strong presumption of openness. The same is true of the risk to physical safety here. The Court of Appeal was right in the circumstances to set aside the sealing orders and I would therefore dismiss the appeal. II.

Background [ 9 ] Prominent in business and philanthropic circles, Bernard Sherman and Honey Sherman were found dead in their Toronto home in December of 2017. Their deaths had no apparent explanation and generated intense public interest and press scrutiny. In January of the following year, the Toronto Police Service announced that the deaths were being investigated as homicides.

As the present matter came before the courts, the identity and motive of those responsible remained unknown. [ 10 ] The couple’s estates and estate trustees (collectively the “Trustees”) [1] sought to stem the intense press scrutiny prompted by the events.

The Trustees hoped to see to the orderly transfer of the couple’s property, at arm’s length from what they saw as the public’s morbid interest in the unexplained deaths and the curiosity around apparently great sums of money involved. [ 11 ] When the time came to obtain certificates of appointment of estate trustee from the Superior Court of Justice, the Trustees sought a sealing order so that the estate trustees and beneficiaries (“affected individuals”) might be spared any further intrusions into their privacy and be protected from what was alleged to be a risk to their safety.

The Trustees argued that if the information in the court files was revealed to the public, the safety of the affected individuals would be at risk and their privacy compromised as long as the deaths were unexplained and those responsible for the tragedy remained at large.

In support of their request, they argued that there was a real and substantial risk that the affected individuals would suffer serious harm from the public exposure of the materials in the circumstances. [ 12 ] Initially granted, the sealing orders were challenged by Kevin Donovan, a journalist who had written a series of articles on the couple’s deaths, and Toronto Star Newspapers Ltd., for which he wrote (collectively the “Toronto Star”) . [2] The Toronto Star said the orders violated its constitutional rights of freedom of expression and freedom of the press, as well as the attending principle that the workings of the courts should be open to the public as a means of guaranteeing the fair and transparent administration of justice.

III. Proceedings Below A. Ontario Superior Court of Justice, 2018 ONSC 4706 , 41 E.T.R. (4th) 126 (Dunphy J.) [ 13 ] In addressing whether the circumstances warranted interference with the open court principle, the application judge relied on this Court’s judgment in Sierra Club .

He noted that a confidentiality order should only be granted when: “(1) such an order is necessary . . . to prevent a serious risk to an important interest because reasonable alternative measures will not prevent the risk; and (2) the salutary effects of the confidentiality order outweigh its deleterious effects, including the effects on the right to free expression and the public interest in open and accessible court proceedings” (para. 13(d)). [ 14 ] The application judge considered whether the Trustees’ interests would be served by granting the sealing orders.

In his view, the Trustees had correctly identified two legitimate interests in support of making an exception to the open court principle: “protecting the privacy and dignity of victims of crime and their loved ones” and “a reasonable apprehension of risk on behalf of those known to have an interest in receiving or administering the assets of the deceased” (paras. 22-25). With respect to the first interest, the application judge found that “[t]he degree of intrusion on that privacy and dignity has already been extreme and . . . excruciating” (para. 23).

For the second interest, although he noted that “it would have been preferable to include objective evidence of the gravity of that risk from, for example, the police responsible for the investigation”, he concluded that “the lack of such evidence is not fatal” (para. 24). Rather, the necessary inferences could be drawn from the circumstances notably the “willingness of the perpetrator(

s) of the crimes to resort to extreme violence to pursue whatever motive existed” ( ibid. ). He concluded that the “current uncertainty” was the source of a reasonable apprehension of the risk of harm and, further, that the foreseeable harm was “grave” ( ibid. ). [ 15 ] The application judge ultimately accepted the Trustees’ submission that these interests “very strongly outweigh” what he called the proportionately narrow public interest in the “essentially administrative files” at issue (paras. 31 and 33). He therefore concluded that the harmful effects of the sealing orders were substantially outweighed by the salutary effects on the rights and interests of the affected individuals.

[ 16 ] Finally, the application judge considered what order would protect the affected individuals while infringing upon the open court principle to the minimum extent possible. He decided no meaningful part of either file could be disclosed if one were to make the redactions necessary to protect the interests he had identified. Open-ended sealing orders did not, however, sit well with him. The application judge therefore sealed the files for an initial period of two years, with the possibility of renewal. B.

Court of Appeal for Ontario, 2019 ONCA 376 , 47 E.T.R. (4th) 1 (Doherty, Rouleau and Hourigan JJ.A.) [ 17 ] The Toronto Star’s appeal was allowed, unanimously, and the sealing orders were lifted. [ 18 ] The Court of Appeal considered the two interests advanced before the application judge in support of the orders to seal the probate files. As to the need to protect the privacy and dignity of the victims of violent crime and their loved ones, it recalled that the kind of interest that is properly protected by a sealing order must have a public interest component.

Citing Sierra Club , the Court of Appeal wrote that “[p]ersonal concerns cannot, without more, justify an order sealing material that would normally be available to the public under the open court principle” (para. 10).

It concluded that the privacy interest for which the Trustees sought protection lacked this quality of public interest. [ 19 ] While it recognized the personal safety of individuals as an important public interest generally, the Court of Appeal wrote that there was no evidence in this case that could warrant a finding that disclosure of the contents of the estate files posed a real risk to anyone’s physical safety. The application judge had erred on this point: “the suggestion that the beneficiaries and trustees are somehow at risk because the Shermans were murdered is not an inference, but is speculation.

It provides no basis for a sealing order” (para. 16). [ 20 ] The Court of Appeal concluded that the Trustees had failed the first stage of the test for obtaining orders sealing the probate files. It therefore allowed the appeal and set aside the orders. C. Subsequent Proceedings [ 21 ] The Court of Appeal’s order setting aside the sealing orders has been stayed pending the disposition of this appeal. The Toronto Star brought a motion to adduce new evidence on this appeal, comprised of land titles documents, transcripts of the cross-examination of a detective on the murder investigation, and various news articles.

This evidence, it says, supports the conclusion that the sealing orders should be lifted. The motion was referred to this panel. IV. Submissions [ 22 ] The Trustees have appealed to this Court seeking to restore the sealing orders made by the application judge. In addition to contesting the motion for new evidence, they maintain that the orders are necessary to prevent a serious risk to the privacy and physical safety of the affected individuals and that the salutary effects of sealing the court probate files outweigh the harmful effects of limiting court openness.

The Trustees argue that two legal errors led the Court of Appeal to conclude otherwise. [ 23 ] First, they submit the Court of Appeal erred in holding that privacy is a personal concern that cannot, without more, constitute an important interest under Sierra Club . The Trustees say the application judge was right to characterize privacy and dignity as an important public interest which, as it was subject to a serious risk, justified the orders.

They ask this Court to recognize that privacy in itself is an important public interest for the purposes of the analysis. [ 24 ] Second, the Trustees submit that the Court of Appeal erred in overturning the application judge’s conclusion that there was a serious risk of physical harm. They argue that the Court of Appeal failed to recognize that courts have the ability to draw reasonable inferences by applying reason and logic even in the absence of specific evidence of the alleged risk. [ 25 ] The Trustees say that these errors led the Court of Appeal to mistakenly set aside the sealing orders.

In answer to questions at the hearing, the Trustees acknowledged that an order redacting certain documents in the file or a publication ban could assist in addressing some of their concerns, but maintained neither is a reasonable alternative to the sealing orders in the circumstances. [ 26 ] The Trustees submit further that the protection of these interests outweighs the deleterious effects of the orders. They argue that the importance of the open court principle is attenuated by the nature of these probate proceedings.

Given that it is non-contentious and not strictly speaking necessary for the transfer of property at death, probate is a court proceeding of an “administrative” character, which diminishes the imperative of applying the open court principle here (paras. 113-14). [ 27 ] The Toronto Star takes the position that the Court of Appeal made no mistake in setting aside the sealing orders and that the appeal should be dismissed.

In the Toronto Star’s view, while privacy can be an important interest where it evinces a public component, the Trustees have only identified a subjective desire for the affected individuals in this case to avoid further publicity, which is not inherently harmful. According to the Toronto Star and some of the interveners, the Trustees’ position would allow that measure of inconvenience and embarrassment that arises in every court proceeding to take precedence over the interest in court openness protected by the Canadian Charter of Rights and Freedoms in which all of society has a stake.

The Toronto Star argues further that the information in the court files is not highly sensitive. On the issue of whether the sealing orders were necessary to protect the affected individuals from physical harm, the Toronto Star submits that the Court of Appeal was right to conclude that the Trustees had failed to establish a serious risk to this interest. [ 28 ] In the alternative, even if there were a serious risk to one or another important interest, the Toronto Star says the sealing orders are not necessary because the risk could be addressed by an alternative, less onerous order.

Furthermore, it says the orders are not proportionate. In seeking to minimize the importance of openness in probate proceedings, the Trustees invite an inflexible approach to balancing the effects of the order that is incompatible with the principle that openness applies to all court proceedings. In any event, there is a public interest in openness specifically here, given that the certificates sought can affect the rights of third parties and that openness ensures the fairness of the proceedings, whether they are contested or not.

V. Analysis [29] The outcome of the appeal turns on whether the application judge should have made the sealing orders pursuant tothe test for discretionary limits on court openness from this Court’s decision in Sierra Club. [30] Court openness is protected by the constitutional guarantee of freedom of expression and is essential to the properfunctioning of our democracy (Canadian Broadcasting Corp. v. New Brunswick (Attorney General), (SCC), [1996] 3S.C.R. 480, at para. 23; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 23-26).

Reporting on court proceedings by afree press is often said to be inseparable from the principle of open justice. “In reporting what has been said and done at a public trial, themedia serve as the eyes and ears of a wider public which would be absolutely entitled to attend but for purely practical reasons cannot doso” (Khuja v. Times Newspapers Ltd., [2017] UKSC 49, [2019] A.C. 161, at para. 16, citing Edmonton Journal v. Alberta (AttorneyGeneral), (SCC), [1989] 2 S.C.R. 1326, at pp. 1339-40, per Cory J.).

Limits on openness in service of other publicinterests have been recognized, but sparingly and always with an eye to preserving a strong presumption that justice should proceed inpublic view (Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835, at p. 878; R. v. Mentuck, 2001SCC 76, [2001] 3 S.C.R. 442, at paras. 32-39; Sierra Club, at para. 56). The test for discretionary limits on court openness is directed atmaintaining this presumption while offering sufficient flexibility for courts to protect these other public interests where they arise(Mentuck, at para. 33).

The parties agree that this is the appropriate framework of analysis for resolving this appeal. [31] The parties and the courts below disagree, however, about how this test applies to the facts of this case and this callsfor clarification of certain points of the Sierra Club analysis. Most centrally, there is disagreement about how an important interest in theprotection of privacy could be recognized such that it would justify limits on openness, and in particular when privacy can be a matter ofpublic concern.

The parties bring two settled principles of this Court’s jurisprudence to bear in support of their respective positions. First,this Court has often observed that privacy is a fundamental value necessary to the preservation of a free and democratic society (Lavignev. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773, at para. 25; Dagg v. Canada(Minister of Finance), (SCC), [1997] 2 S.C.R. 403, at paras. 65-66, per La Forest J. (dissenting but not on this point);New Brunswick, at para. 40).

Courts have invoked privacy, in some instances, as the basis for an exception to openness under the SierraClub test (see, e.g., R. v. Henry, 2009 BCCA 86, 270 B.C.A.C. 5, at paras. 11 and 17). At the same time, the jurisprudence acknowledgesthat some degree of privacy loss — resulting in inconvenience, even in upset or embarrassment — is inherent in any court proceedingopen to the public (New Brunswick, at para. 40).

Accordingly, upholding the presumption of openness has meant recognizing that neitherindividual sensibilities nor mere personal discomfort associated with participating in judicial proceedings are likely to justify theexclusion of the public from court (Attorney General of Nova Scotia v. MacIntyre, (SCC), [1982] 1 S.C.R. 175, atp. 185; New Brunswick, at para. 41). Determining the role of privacy in the Sierra Club analysis requires reconciling these two ideas,which is the nub of the disagreement between the parties.

The right of privacy is not absolute; the open court principle is not withoutexceptions. [32] For the reasons that follow, I disagree with the Trustees that the ostensibly unbounded privacy interest they invokequalifies as an important public interest within the meaning of Sierra Club. Their broad claim fails to focus on the elements of privacythat are deserving of public protection in the open court context. That is not to say, however, that privacy can never ground anexceptional measure such as the sealing orders sought in this case.

While the mere embarrassment caused by the dissemination ofpersonal information through the open court process does not rise to the level justifying a limit on court openness, circumstances do existwhere an aspect of a person’s private life has a plain public interest dimension. [33] Personal information disseminated in open court can be more than a source of discomfort and may result in anaffront to a person’s dignity. Insofar as privacy serves to protect individuals from this affront, it is an important public interest relevantunder Sierra Club.

Dignity in this sense is a related but narrower concern than privacy generally; it transcends the interests of theindividual and, like other important public interests, is a matter that concerns the society at large. A court can make an exception to theopen court principle, notwithstanding the strong presumption in its favour, if the interest in protecting core aspects of individuals’personal lives that bear on their dignity is at serious risk by reason of the dissemination of sufficiently sensitive information.

Thequestion 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. [34] This public interest in privacy appropriately focuses the analysis on the impact of the dissemination of sensitivepersonal information, rather than the mere fact of this dissemination, which is frequently risked in court proceedings and is necessary in asystem that privileges court openness.

It is a high bar — higher and more precise than the sweeping privacy interest relied upon here bythe Trustees.

This public interest will only be seriously at risk where the information in question strikes at what is sometimes said to bethe core identity of the individual concerned: information so sensitive that its dissemination could be an affront to dignity that the publicwould not tolerate, even in service of open proceedings. [35] I hasten to say that applicants for an order making exception to the open court principle cannot content themselveswith an unsubstantiated claim that this public interest in dignity is compromised any more than they could by an unsubstantiated claimthat their physical integrity is endangered.

Under Sierra Club, the applicant must show on the facts of the case that, as an importantinterest, this dignity dimension of their privacy is at “serious risk”.

For the purposes of the test for discretionary limits on court openness,this requires the applicant to show that the information in the court file is sufficiently sensitive such that it can be said to strike at thebiographical core of the individual and, in the broader circumstances, that there is a serious risk that, without an exceptional order, theaffected individual will suffer an affront to their dignity. [36] In the present case, the information in the court files was not of this highly sensitive character that it could be said tostrike at the core identity of the affected persons; the Trustees have failed to show how the lifting of the sealing orders engages thedignity of the affected individuals.

I am therefore not convinced that the intrusion on their privacy raises a serious risk to an importantpublic interest as required by Sierra Club. Moreover, as I shall endeavour to explain, there was no serious risk of physical harm to theaffected individuals by lifting the sealing orders. Accordingly, this is not an appropriate case in which to make sealing orders, or anyorder limiting access to these court files. In the circumstances, the admissibility of the Toronto Star’s new evidence is moot. I propose todismiss the appeal.

A. The Test for Discretionary Limits on Court Openness [37] Court proceedings are presumptively open to the public (MacIntyre, at p. 189; A.B. v. Bragg Communications Inc.,2012 SCC 46, [2012] 2 S.C.R. 567, at para. 11). [38] The test for discretionary limits on presumptive court openness has been expressed as a two-step inquiry involving thenecessity and proportionality of the proposed order (Sierra Club, at para. 53). Upon examination, however, this test rests upon three coreprerequisites that a person seeking such a limit must show.

Recasting the test around these three prerequisites, without altering itsessence, helps to clarify the burden on an applicant seeking an exception to the open court principle.

In order to succeed, the personasking 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 notprevent 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, apublication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered. This test applies to alldiscretionary limits on court openness, subject only to valid legislative enactments (Toronto Star Newspapers Ltd. v.

Ontario, 2005 SCC41, [2005] 2 S.C.R. 188, at paras. 7 and 22). [39] The discretion is structured and controlled in this way to protect the open court principle, which is understood to beconstitutionalized under the right to freedom of expression at s. 2(

b) of the Charter (New Brunswick, at para. 23). Sustained by freedomof expression, the open court principle is one of the foundations of a free press given that access to courts is fundamental tonewsgathering. This Court has often highlighted the importance of open judicial proceedings to maintaining the independence andimpartiality of the courts, public confidence and understanding of their work and ultimately the legitimacy of the process (see, e.g.,Vancouver Sun, at paras. 23-26).

In New Brunswick, La Forest J. explained the presumption in favour of court openness had become“‘one of the hallmarks of a democratic society’” (citing Re Southam Inc. and The Queen (No.1) (1983), (ON CA), 41O.R. (2d) 113 (C.A.), at p. 119), that “acts as a guarantee that justice is administered in a non-arbitrary manner, according to the rule oflaw . . . thereby fostering public confidence in the integrity of the court system and understanding of the administration of justice”(para. 22).

The centrality of this principle to the court system underlies the strong presumption — albeit one that is rebuttable — infavour of court openness (para. 40; Mentuck, at para. 39). [40] The test ensures that discretionary orders are subject to no lower standard than a legislative enactment limiting courtopenness would be (Mentuck, at para. 27; Sierra Club, at para. 45).

To that end, this Court developed a scheme of analysis by analogy tothe Oakes test, which courts use to understand whether a legislative limit on a right guaranteed under the Charter is reasonable anddemonstrably justified in a free and democratic society (Sierra Club, at para. 40, citing R. v. Oakes, (SCC), [1986] 1S.C.R. 103; see also Dagenais, at p. 878; Vancouver Sun, at para. 30). [41] The recognized scope of what interests might justify a discretionary exception to open courts has broadened over time.In Dagenais, Lamer C.J. spoke of a requisite risk to the “fairness of the trial” (p. 878).

In Mentuck, Iacobucci J. extended this to a riskaffecting the “proper administration of justice” (para. 32). Finally, in Sierra Club, Iacobucci J., again writing for a unanimous Court,restated the test to capture any serious risk to an “important interest, including a commercial interest, in the context of litigation”(para. 53). He simultaneously clarified that the important interest must be expressed as a public interest.

For example, on the facts of thatcase, a harm to a particular business interest would not have been sufficient, but the “general commercial interest of preservingconfidential information” was an important interest because of its public character (para. 55). This is consistent with the fact that this testwas developed in reference to the Oakes jurisprudence that focuses on the “pressing and substantial” objective of legislation of generalapplication (Oakes, at pp. 138-39; see also Mentuck, at para. 31).

The term “important interest” therefore captures a broad array of publicobjectives. [42] While there is no closed list of important public interests for the purposes of this test, I share Iacobucci J.’s sense,explained in Sierra Club, that courts must be “cautious” and “alive to the fundamental importance of the open court rule” even at theearliest stage when they are identifying important public interests (para. 56). Determining what is an important public interest can bedone in the abstract at the level of general principles that extend beyond the parties to the particular dispute (para. 55).

By contrast,whether that interest is at “serious risk” is a fact-based finding that, for the judge considering the appropriateness of an order, isnecessarily made in context. In this sense, the identification of, on the one hand, an important interest and, on the other, the seriousnessof the risk to that interest are, theoretically at least, separate and qualitatively distinct operations.

An order may therefore be refusedsimply because a valid important public interest is not at serious risk on the facts of a given case or, conversely, that the identifiedinterests, regardless of whether they are at serious risk, do not have the requisite important public character as a matter of generalprinciple. [43] The test laid out in Sierra Club continues to be an appropriate guide for judicial discretion in cases like this one.

Thebreadth of the category of “important interest” transcends the interests of the parties to the dispute and provides significant flexibility toaddress harm to fundamental values in our society that unqualified openness could cause (see, e.g., P. M. Perell and J. W. Morden, TheLaw of Civil Procedure in Ontario (4th ed. 2020), at para. 3.185; J. Bailey and J. Burkell, “Revisiting the Open Court Principle in an Eraof Online Publication: Questioning Presumptive Public Access to Parties’ and Witnesses’ Personal Information” (2016), 48 Ottawa L.Rev. 143, at pp. 154-55).

At the same time, however, the requirement that a serious risk to an important interest be demonstrated imposesa meaningful threshold necessary to maintain the presumption of openness. Were it merely a matter of weighing the benefits of the limiton court openness against its negative effects, decision-makers confronted with concrete impacts on the individuals appearing beforethem may struggle to put adequate weight on the less immediate negative effects on the open court principle. Such balancing could beevasive of effective appellate review.

To my mind, the structure provided by Dagenais, Mentuck, and Sierra Club remains appropriate

and should be affirmed. [44] Finally, I recall that the open court principle is engaged by all judicial proceedings, whatever their nature (MacIntyreat pp. 185-86; Vancouver Sun, at para. 31). To the extent the Trustees suggested, in their arguments about the negative effects of thesealing orders, that probate in Ontario does not engage the open court principle or that the openness of these proceedings has no publicvalue, I disagree. The certificates the Trustees sought from the court are issued under the seal of that court, thereby bearing theimprimatur of the court’s authority.

The court’s decision, even if rendered in a non-contentious setting, will have an impact on thirdparties, for example by establishing the testamentary paper that constitutes a valid will (see Otis v. Otis (2004), 7 E.T.R. (3d) 221 (Ont.S.C.), at paras. 23-24). Contrary to what the Trustees argue, the matters in a probate file are not quintessentially private or fundamentallyadministrative.

Obtaining a certificate of appointment of estate trustee in Ontario is a court proceeding and the fundamental rationale foropenness — discouraging mischief and ensuring confidence in the administration of justice through transparency — applies to probateproceedings and thus to the transfer of property under court authority and other matters affected by that court action. [45] It is true that other non-probate estate planning mechanisms may allow for the transfer of wealth outside the ordinaryavenues of testate or intestate succession — that is the case, for instance, for certain insurance and pension benefits, and for certainproperty held in co-ownership.

But this does not change the necessarily open court character of probate proceedings. That non-probatetransfers keep certain information related to the administration of an estate out of public view does not mean that the Trustees here, byseeking certificates from the court, somehow do not engage this principle. The Trustees seek the benefits that flow from the publicjudicial probate process: transparency ensures that the probate court’s authority is administered fairly and efficiently (Vancouver Sun, atpara. 25; New Brunswick, at para. 22).

The strong presumption in favour of openness plainly applies to probate proceedings and theTrustees must satisfy the test for discretionary limits on court openness. B. The Public Importance of Privacy [46] As mentioned, I disagree with the Trustees that an unbounded interest in privacy qualifies as an important publicinterest under the test for discretionary limits on court openness. Yet in some of its manifestations, privacy does have social importancebeyond the person most immediately concerned.

On that basis, it cannot be excluded as an interest that could justify, in the rightcircumstances, a limit to court openness. Indeed, the public importance of privacy has been recognized by this Court in various settings,and this sheds light on why the narrower aspect of privacy related to the protection of dignity is an important public interest. [47] I respectfully disagree with the manner in which the Court of Appeal disposed of the claim by the Trustees that thereis a serious risk to the interest in protecting personal privacy in this case.

For the appellate judges, the privacy concerns raised by theTrustees amounted to “[p]ersonal concerns” which cannot, “without more”, satisfy the requirement from Sierra Club that an importantinterest be framed as a public interest (para. 10). The Court of Appeal in our case relied, at para. 10, on H. (M.E.) v. Williams, 2012ONCA 35, 108 O.R. (3d) 321, in which it was held that “[p]urely personal interests cannot justify non-publication or sealing orders”(para. 25).

Citing as authority judgments of this Court in MacIntyre and Sierra Club, the court continued by observing that “personalconcerns of a litigant, including concerns about the very real emotional distress and embarrassment that can be occasioned to litigantswhen justice is done in public, will not, standing alone, satisfy the necessity branch of the test” (para. 25). Respectfully stated, theemphasis that the Court of Appeal placed on personal concerns as a means of deciding that the sealing orders failed to meet the necessityrequirement in this case and in Williams is, I think, mistaken.

Personal concerns that relate to aspects of the privacy of an individual whois before the courts can coincide with a public interest in confidentiality. [48] Like the Court of Appeal, I do agree with the view expressed particularly in the pre-Charter case of MacIntyre, thatwhere court openness results in an intrusion on privacy which disturbs the “sensibilities of the individuals involved” (p. 185), thatconcern is generally insufficient to justify a sealing or like order and does not amount to an important public interest under Sierra Club.But I disagree with the Court of Appeal in this case and in Williams that this is because the intrusion only occasions “personal concerns”.Certain personal concerns — even “without more” — can coincide with important public interests within the meaning of Sierra Club.

Toinvoke the expression of Binnie J. in F.N. (Re), 2000 SCC 35, [2000] 1 S.C.R. 880, at para. 10, there is a “public interest inconfidentiality” that is felt, first and foremost, by the person involved and is most certainly a personal concern. Even in Williams, theCourt of Appeal was careful to note that where, without privacy protection, an individual would face “a substantial risk of seriousdebilitating emotional . . . harm”, an exception to openness should be available (paras. 29-30).

The means of discerning whether aprivacy interest reflects a “public interest in confidentiality” is therefore not whether the interest reflects or is rooted in “personalconcerns” for the privacy of the individuals involved. Some personal concerns relating to privacy overlap with public interests inconfidentiality. These interests in privacy can be, in my view, important public interests within the meaning of Sierra Club. It is true thatan individual’s privacy is pre-eminently important to that individual.

But this Court has also long recognized that the protection ofprivacy is, in a variety of settings, in the interest of society as a whole. [49] The proposition that privacy is important, not only to the affected individual but to our society, has deep roots in thejurisprudence of this Court outside the context of the test for discretionary limits on court openness. This background helps explain whyprivacy cannot be rejected as a mere personal concern. However, the key differences in these contexts are such that the publicimportance of privacy cannot be transposed to open courts without adaptation.

Only specific aspects of privacy interests can qualify asimportant public interests under Sierra Club. [50] In the context of s. 8 of the Charter and public sector privacy legislation, La Forest J. cited American privacy scholarAlan F. Westin for the proposition that privacy is a fundamental value of the modern state, first in R. v. Dyment, (SCC),[1988] 2 S.C.R. 417, at pp. 427-28 (concurring), and then in Dagg, at para. 65 (dissenting but not on this point). In the latter case,La Forest J. wrote: “The protection of privacy is a fundamental value in modern, democratic states.

An expression of an individual’sunique personality or personhood, privacy is grounded on physical and moral autonomy — the freedom to engage in one’s own thoughts,actions and decisions” (para. 65 (citations omitted)). That statement was endorsed unanimously by this Court in Lavigne, at para. 25. [51] Further, in Alberta (Information and Privacy Commissioner) v.

United Food and Commercial Workers, Local 401,2013 SCC 62, [2013] 3 S.C.R. 733 (“UFCW”), decided in the context of a statute regulating the use of information by organizations, theobjective of providing an individual with some control over their information was recognized as “intimately connected to individual

autonomy, dignity and privacy, self-evidently significant social values” (para. 24). The importance of privacy, its “quasi-constitutionalstatus” and its role in protecting moral autonomy continues to find expression in our recent jurisprudence (see, e.g., Lavigne, at para. 24;Bragg, at para. 18, per Abella J., citing Toronto Star Newspaper Ltd. v. R., 2012 ONCJ 27, 289 C.C.C. (3d) 549, at paras. 40-41 and 44;Douez v. Facebook, Inc., 2017 SCC 33, [2017] 1 S.C.R. 751, at para. 59).

In Douez, Karakatsanis, Wagner (as he then was) andGascon JJ. underscored this same point, adding that “the growth of the Internet, virtually timeless with pervasive reach, has exacerbatedthe potential harm that may flow from incursions to a person’s privacy interests” (para. 59). [52] Privacy as a public interest is underlined by specific aspects of privacy protection present in legislation at the federaland provincial levels (see, e.g., Privacy Act, R.S.C. 1985, c.

P-21; Personal Information Protection and Electronic Documents Act,S.C. 2000, c. 5 (“PIPEDA”); Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31; Charter of Human Rights and Freedoms, CQLR, c.

C-12, s. 5; Civil Code of Québec, arts. 35 to 41).[3] Further, in assessing the constitutionality of a legislativeexception to the open court principle, this Court has recognized that the protection of individual privacy can be a pressing and substantialobjective (Edmonton Journal, at p. 1345, per Cory J.; see also the concurring reasons of Wilson J., at p. 1354, in which “the publicinterest in protecting the privacy of litigants generally in matrimonial cases against the public interest in an open court process” wasexplicitly noted).

There is also continued support for the social and public importance of individual privacy in the academic literature(see, e.g., A. J. Cockfield, “Protecting the Social Value of Privacy in the Context of State Investigations Using New Technologies”(2007), 40 U.B.C. L. Rev. 41, at p. 41; K. Hughes, “A Behavioural Understanding of Privacy and its Implications for Privacy Law”(2012), 75 Mod. L. Rev. 806, at p. 823; P. Gewirtz, “Privacy and Speech” (2001), Sup. Ct. Rev. 139, at p. 139).

It is thereforeinappropriate, in my respectful view, to dismiss the public interest in protecting privacy as merely a personal concern. This does notmean, however, that privacy generally is an important public interest in the context of limits on court openness. [53] The fact that the case before the application judge concerned individuals who were advancing their own privacyinterests, which were undeniably important to them as individuals, does not mean that there is no public interest at stake.

In F.N. (Re),this was the personal interest that young offenders had in remaining anonymous in court proceedings as a means of encouraging theirpersonal rehabilitation (para. 11). All of society had a stake, according to Binnie J., in the young person’s personal prospect forrehabilitation. This same idea from F.N. (Re) was cited in support of finding the interest in Sierra Club to be a public interest.

Thatinterest, rooted first in an agreement of personal concern to the contracting parties involved, was a private matter that evinced, alongsideits personal interest to the parties, a “public interest in confidentiality” (Sierra Club, at para. 55).

Similarly, while the Trustees have apersonal interest in preserving their privacy, this does not mean that the public has no stake in this same interest because — as this Courthas made clear — it is related to moral autonomy and dignity which are pressing and substantial concerns. [54] In this appeal, the Toronto Star suggests that legitimate privacy concerns would be effectively protected by adiscretionary order where there is “something more” to elevate them beyond personal concerns and sensibilities (R.F., at para. 73).

TheIncome Security Advocacy Centre, by way of example, submits that privacy serves the public interests of preventing harm and ofensuring individuals are not dissuaded from accessing the courts. I agree that these concepts are related, but in my view care must betaken not to conflate the public importance of privacy with that of other interests; aspects of privacy, such as dignity, may constituteimportant public interests in and of themselves. A risk to personal privacy may be tied to a risk to psychological harm, as it was in Bragg(para. 14; see also J.

Rossiter, Law of Publication Bans, Private Hearings, and Sealing Orders (loose-leaf), s. 2.4.1). But concerns forprivacy may not always coincide with a desire to avoid psychological harm, and may focus instead, for example, on protecting one’sprofessional standing (see, e.g., R. v. Paterson (1998), (BC CA), 102 B.C.A.C. 200, at paras. 76, 78 and 87-88).Similarly, there may be circumstances where the prospect of surrendering the personal information necessary to pursue a legal claimmay deter an individual from bringing that claim (see S. v. Lamontagne, 2020 QCCA 663, at paras. 34-35 ).

In the same way,the prospect of surrendering sensitive commercial information would have impaired the conduct of the party’s defence in Sierra Club (atpara. 71), or could pressure an individual into settling a dispute prematurely (K. Eltis, Courts, Litigants and the Digital Age(2nd ed. 2016), at p. 86). But this does not necessarily mean that a public interest in privacy is wholly subsumed by such concerns.

I note,for example, that 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 anyprivacy impacts (see, e.g., Himel v. Greenberg, 2010 ONSC 2325, 93 R.F.L. (6th) 357, at para. 58; see also Rossiter, s. 2.4.2(2)).

In anyevent, the recognition of these related and valid important public interests does not answer the question as to whether aspects of privacyin and of themselves are important public interests and does not diminish the distinctive public character of privacy, considered above. [55] Indeed, the specific harms to privacy occasioned by open courts have not gone unnoticed nor been discounted asmerely personal concerns.

Courts have exercised their discretion to limit court openness in order to protect personal information frompublicity, including to prevent the disclosure of sexual orientation (see, e.g., Paterson, at paras. 76, 78 and 87-88), HIV status (see, e.g.,A.B. v. Canada (Citizenship and Immigration), 2017 FC 629, at para. 9 ), and a history of substance abuse and criminality (see,e.g., R. v. Pickton, 2010 BCSC 1198, at paras. 11 and 20 ). This need to reconcile the public interest in privacy with the opencourt principle has been highlighted by this Court (see, e.g., Edmonton Journal, at p. 1353, per Wilson J.).

Writing extra-judicially,McLachlin C.J. explained that “[i]f we are serious about peoples’ private lives, we must preserve a modicum of privacy. Equally, if weare serious about our justice system, we must have open courts. The question is how to reconcile these dual imperatives in a fair andprincipled way” (“Courts, Transparency and Public Confidence – To the Better Administration of Justice” (2003), 8 Deakin L. Rev. 1, atp. 4).

In seeking that reconciliation, the question becomes whether the relevant dimension of privacy amounts to an important publicinterest that, when seriously at risk, would justify rebutting the strong presumption favouring open courts. C. The Important Public Interest in Privacy Bears on the Protection of Individual Dignity [56] While the public importance of privacy has clearly been recognized by this Court in various settings, caution isrequired in deploying this concept in the test for discretionary limits on court openness.

It is a matter of settled law that open courtproceedings by their nature can be a source of discomfort and embarrassment and these intrusions on privacy are generally seen as ofinsufficient importance to overcome the presumption of openness. The Toronto Star has raised the concern that recognizing privacy as animportant public interest will lower the burden for applicants because the privacy of litigants will, in some respects, always be at risk incourt proceedings.

I agree that the requirement to show a serious risk to an important interest is a key threshold component of theanalysis that must be preserved in order to protect the open court principle. The recognition of a public interest in privacy could threatenthe strong presumption of openness if privacy is cast too broadly without a view to its public character.

[57] Privacy poses challenges in the test for discretionary limits on court openness because of the necessarydissemination of information that openness implies. It bears recalling that when Dickson J., as he then was, wrote in MacIntyre that“covertness is the exception and openness the rule”, he was explicitly treating a privacy argument, returning to and dismissing the view,urged many times before, “that the ‘privacy’ of litigants requires that the public be excluded from court proceedings” (p. 185 (emphasisadded)).

Dickson J. rejected the view that personal privacy concerns require closed courtroom doors, explaining that “[a]s a general rulethe sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings” (ibid.). [58] Though writing before Dagenais, and therefore not commenting on the specific steps of the analysis as we nowunderstand them, to my mind, Dickson J. was right to recognize that the open court principle brings necessary limits to the right toprivacy.

While individuals may have an expectation that information about them will not be revealed in judicial proceedings, the opencourt principle stands presumptively in opposition to that expectation. For example, in Lac d’Amiante du Québec Ltée v. 2858-0702Québec Inc., 2001 SCC 51, [2001] 2 S.C.R. 743, LeBel J. held that “a party who institutes a legal proceeding waives his or her right toprivacy, at least in part” (para. 42).

MacIntyre and cases like it recognize — in stating that openness is the rule and covertness theexception — that the right to privacy, however defined, in some measure gives way to the open court ideal. I share the view that the opencourt principle presumes that this limit on the right to privacy is justified. [59] The Toronto Star is therefore right to say that the privacy of individuals will very often be at some risk in courtproceedings. Disputes between and concerning individuals that play out in open court necessarily reveal information that may haveotherwise remained out of public view.

Indeed, much like the Court of Appeal in this case, courts have explicitly adverted to this concernwhen concluding that mere inconvenience is insufficient to cross the initial threshold of the test (see, e.g., 3834310 Canada inc. v.Chamberland, (Que. C.A.), at para. 30). Saying that any impact on individual privacy is sufficient to establish aserious risk to an important public interest for the purposes of the test for discretionary limits on court openness could render this initialrequirement moot. Many cases would turn on the balancing at the proportionality stage.

Such a development would amount to adeparture from Sierra Club, which is the appropriate framework and one which must be preserved. [60] Further, recognizing an important interest in privacy generally could prove to be too open-ended and difficult to apply.Privacy is a complex and contextual concept (Dagg, at para. 67; see also B. McIsaac, K. Klein and S. Brown, The Law of Privacy inCanada (loose-leaf), vol. 1, at pp. 1-4; D. J. Solove, “Conceptualizing Privacy” (2002), 90 Cal. L. Rev. 1087, at p. 1090).

Indeed, thisCourt has described the nature of limits of privacy as being in a state of “theoretical disarray” (R. v. Spencer, 2014 SCC 43, [2014] 2S.C.R. 212, at para. 35). Much turns on the context in which privacy is invoked. I agree with the Toronto Star that a bald recognition ofprivacy as an important interest in the context of the test for discretionary limits on court openness, as the Trustees advance here, wouldinvite considerable confusion.

It would be difficult for courts to measure a serious risk to such an interest because of its multi-facetednature. [61] While I acknowledge these concerns have merit, I disagree that they require that privacy never be considered indetermining whether there is a serious risk to an important public interest. I reach this conclusion for two reasons.

First, the problem ofprivacy’s complexity can be attenuated by focusing on the purpose underlying the public protection of privacy as it is relevant to thejudicial process, in order to fix precisely on that aspect which transcends the interests of the parties in this context. That narrowerdimension of privacy is the protection of dignity, an important public interest that can be threatened by open courts.

Indeed, rather thanattempting to apply a single unwieldy concept of privacy in all contexts, this Court has generally fixed on more specific privacy intereststailored to the particular situation (Spencer, at para. 35; Edmonton Journal, at p. 1362, per Wilson J.). That is what must be done here,with a view to identifying the public aspect of privacy that openness might inappropriately undermine. [62] Second, I recall that in order to pass the first stage of the analysis one must not simply invoke an important interest,but must also overcome the presumption of openness by showing a serious risk to this interest.

The burden of showing a risk to such aninterest on the facts of a given case constitutes the true initial threshold on the person seeking to restrict openness. It is never sufficient toplead a recognized important public interest on its own. The demonstration of a serious risk to this interest is still required. What isimportant is that the interest be accurately defined to capture only those aspects of privacy that engage legitimate public objectives suchthat showing a serious risk to that interest remains a high bar.

In this way, courts can effectively maintain the guarantee of presumptiveopenness. [63] Specifically, in order to preserve the integrity of the open court principle, an important public interest concerned withthe protection of dignity should be understood to be seriously at risk only in limited cases. Nothing here displaces the principle thatcovertness in court proceedings must be exceptional.

Neither the sensibilities of individuals nor the fact that openness isdisadvantageous, embarrassing or distressing to certain individuals will generally on their own warrant interference with court openness(MacIntyre, at p. 185; New Brunswick, at para. 40; Williams, at para. 30; Coltsfoot Publishing Ltd. v. Foster-Jacques, 2012 NSCA 83,320 N.S.R. (2d) 166, at para. 97). These principles do not preclude recognizing the public character of a privacy interest as importantwhen it is related to the protection of dignity.

They merely require that a serious risk be shown to exist in respect of this interest in orderto justify, exceptionally, a limit on openness, as is the case with any important public interest under Sierra Club. As Professors SylvetteGuillemard and Séverine Menétrey explain, [translation] “[t]he confidentiality of the proceedings may be justified, in particular, in orderto protect the parties’ privacy . . . .

However, the jurisprudence indicates that embarrassment or shame is not a sufficient reason to orderthat proceedings be held in camera or to impose a publication ban” (Comprendre la procédure civile québécoise (2nd ed. 2017), atp. 57). [64] How should the privacy interest at issue be understood as raising an important public interest relevant to the test fordiscretionary limits on court openness in this context? It is helpful to recall that the orders below were sought to limit access todocuments and information in the court files.

The Trustees’ argument on this point focused squarely on the risk of immediate andwidespread dissemination of the personally identifying and other sensitive information contained in the sealed materials by theToronto Star. The Trustees submit that this dissemination would constitute an unwarranted intrusion into the privacy of the affectedindividuals beyond the upset they have already suffered as a result of the publicity associated with the death of the Shermans. [65] In my view, there is value in leaving individuals free to restrict when, how and to what extent highly sensitive

information about them is communicated to others in the public sphere, because choosing how we present ourselves in public preservesour moral autonomy and dignity as individuals. This Court has had occasion to underscore the connection between the privacy interestengaged by open courts and the protection of dignity specifically.

For example, in Edmonton Journal, Wilson J. noted that the impugnedprovision which would limit publication about matrimonial proceedings addressed “a somewhat different aspect of privacy, one moreclosely related to the protection of one’s dignity . . . namely the personal anguish and loss of dignity that may result from havingembarrassing details of one’s private life printed in the newspapers” (pp. 1363-64).

In Bragg, as a further example, the protection of ayoung person’s ability to control sensitive information was said to foster respect for “dignity, personal integrity and autonomy” (para. 18,citing Toronto Star Newspaper Ltd., at para. 44). [66] Consistent with this jurisprudence, I note by way of example that the Quebec legislature expressly highlighted thepreservation of dignity when the Sierra Club test was codified in the Code of Civil Procedure, CQLR, c. C-25.01 (“C.C.P.”), art. 12 (seealso Ministère de la Justice, Commentaires de la ministre de la Justice: Code de procédure civile,

chapitre C-25.01 (2015), art. 12).Under art. 12 C.C.P., a discretionary exception to the open court principle can be made by the court if “public order, in particular thepreservation of the dignity of the persons involved or the protection of substantial and legitimate interests”, requires it. [67] The concept of public order evidences flexibility analogous to the concept of an important public interest underSierra Club yet it recalls that the interest invoked transcends, in importance and consequence, the purely subjective sensibilities of thepersons affected.

Like the “important public interest” that must be at serious risk to justify the sealing orders in the present appeal, publicorder encompasses a wide array of general principles and imperative norms identified by a legislature and the courts as fundamental to agiven society (see Goulet v. Transamerica Life Insurance Co. of Canada, 2002 SCC 21, [2002] 1 S.C.R. 719, at paras. 42-44, citingGodbout v. Longueuil (Ville de), (QC CA), [1995] R.J.Q. 2561 (C.A.), at p. 2570, aff’d (SCC),[1997] 3 S.C.R. 844).

As one Quebec judge wrote, referring to Sierra Club prior to the enactment of art. 12 C.C.P., the interest must beunderstood as defined [translation] “in terms of a public interest in confidentiality” (see 3834310 Canada inc., at para. 24, per GendreauJ.A. for the Court of appeal). From among the various considerations that make up the concept of public order and other legitimateinterests to which art. 12 C.C.P. alludes, it is significant that dignity, and not an untailored reference to either privacy, harm or access tojustice, was given pride of place.

Indeed, it is that narrow aspect of privacy considered to be a fundamental right that courts had fixedupon before the enactment of art. 12 C.C.P. — [translation] “what is part of one’s personal life, in short, what constitutes a minimumpersonal sphere” (Godbout, at p. 2569, per Baudouin J.A.; see also A. v. B., (Que. C.A.), at para. 20, per RothmanJ.A.). [68] The “preservation of the dignity of the persons involved” is now consecrated as the archetypal public order interestin art. 12 C.C.P.

It is the exemplar of the Sierra Club important public interest in confidentiality that stands as justification for anexception to openness (S. Rochette and J.-F. Côté, “Article 12”, in L. Chamberland, ed., Le grand collectif: Code de procédure civile —Commentaires et annotations (5th ed. 2020), vol. 1, at p. 102; D. Ferland and B. Emery, Précis de procédure civile du Québec (6th ed.2020), vol. 1, at para. 1-111). Di

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