Words and Phrases - "open court presumption"

The Sherman Estate had sought sealing orders to block public access to estate files. The sealing orders were initially granted, but challenged by a journalist and the Toronto Star newspaper on the basis that the sealing orders violated their constitutional rights of freedom of expression and freedom of the press, as well as the principle that courts should be open to the public.

Kasirer J found that the sealing ordersopen c were properly set aside by the Court of Appeal. The Court upheld the open court principle as protected by the constitutional right to freedom of expression and as an essential feature of our democracy, even though “public scrutiny … 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.” (paras. 1, 2 and 3). It said the Sherman Estate had to prove that the information in the court file was “sufficiently sensitive such that it can be said to strike at the biographical core of the individual and, in the broader circumstances, that there is a serious risk that, without an exceptional order, the affected individual will suffer an affront to their dignity” (para 35), but found that the information in the court files was not of such a highly sensitive nature nor was the safety of individuals at serious risk.(para. 36)

Kasirer J further stated (at para. 38):

The test for discretionary limits on presumptive court openness has been expressed as a two‑step inquiry involving the necessity and proportionality of the proposed order (Sierra Club, at para. 53). Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seeking an exception to the open court principle. 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.

Only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments (Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at paras. 7 and 22).

Kaiser J dismissed the appeal, finding (at para. 107}:

The conclusion that the Trustees have failed to establish a serious risk to an important public interest ends the analysis. …