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BCCLA Reacts: Supreme Court of Canada confirms that protecting personal privacy can justify limits on the open court principle

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For Immediate Release

Ottawa, ON (Unceded Algonquin Anishnaabeg Territory): The BC Civil Liberties Association welcomes the Supreme Court of Canada’s decision in Sherman Estate v. Donovan, released today, which provides strong support for the open court principle. The Court unanimously held that court openness is protected by the constitution and is essential to the proper functioning of democracy. The Court also held, importantly, that the public interest in privacy is sufficient, in exceptional circumstances, to justify restrictions on public access to court proceedings and court files.

This appeal was brought by the estate trustees of the murdered billionaire couple, Bernard and Honey Sherman. The trustees sought unsuccessfully to overturn the Ontario Court of Appeal’s decision to lift a sealing order on the Shermans’ court files.

The BCCLA intervened in this case to propose a principled approach to balancing privacy rights with the right to open courts. Consistent with the BCCLA’s position, the Court recognized that personal information disclosed in open court can harm individuals’ dignity, and that courts must have the power to prevent such harm by limiting public access in exceptional circumstances. The BCCLA also successfully urged the Court to acknowledge that information technology now allows highly personal information revealed in court to be shared more quickly and more widely than ever before, and that judges should bear this in mind in deciding whether to grant orders that restrict access to court proceedings and court files.

Adam Goldenberg, Counsel for the BCCLA: “Orders that limit judicial openness must always be exceptional, but they must also be available when core privacy interests are at stake. Today’s decision will ensure that courts have the tools they need to prevent the publicity of court proceedings from being a bar to access to justice for vulnerable individuals. The Court has also appropriately maintained a strong presumption in favour of open courts, a fundamental feature of our justice system. Reconciling these competing interests will remain a challenge, but today’s guidance from the Court is both timely and welcome.”

The BCCLA was represented by Adam Goldenberg and Kathryn Gullason of McCarthy Tétrault LLP.

Media Contact:

Adam Goldenberg, Counsel for the BCCLA: [email protected] or (416) 601-8357