Supreme Court raises bar high for restrictions on court proceedings with Sherman ruling
By unsealing the estate records of murdered billionaires Barry and Honey Sherman on Friday, the Supreme Court of Canada has also clarified the kind of privacy interests that could justify restrictions on court proceedings.
“The court unanimously clarified that it is not enough to simply call ‘privacy’ and get a sealing order or a publication ban,” said Star’s lawyer Iris. Fischer. “It’s not going to do it.”
The information in question must be sensitive enough to constitute an “attack on the dignity of the affected person” if it is disseminated, which, according to the court, is a “narrower dimension of privacy”, according to the unanimous decision of Friday.
Fischer called this a “high bar” to be respected in order to deviate from the principle of open court.
To prove a serious risk to the public interest in matters of privacy, the information “must be sensitive enough to touch the biographical core of those concerned,” Judge Nicholas Kasirer wrote on behalf of the court.
“In other words, the more personal, confidential and highly sensitive the information, the more it could justify a restriction of access and constitute a violation of personal dignity if the information is published,” said Iain MacKinnon, President from the Canadian Association of Media Lawyers.
Anyone seeking a restriction such as a sealing order in legal proceedings must demonstrate that there is a “serious risk of prejudice to a public interest” which cannot be addressed otherwise; then a judge must determine whether the benefits of the restriction outweigh the benefits of transparency.
Arguing last year to keep the estate records sealed, Sherman’s estate trustees argued they had a “reasonable expectation of confidentiality,” which their lawyers said should be enough to meet the the first part of the test for a sealing order.
But the bar must be higher than that, the highest court said on Friday. “The question in each case is whether the information reveals something intimate and personal about the individual, their lifestyle or their experiences,” Kasirer wrote.
The Supreme Court “has never gone so far in explaining exactly what kind of privacy interests are sufficient to tip the scales in favor of restricting access and limiting the open court principle “MacKinnon said.