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Open Court - Sherman Test (3)

. Law Society of Ontario v. AA

In Law Society of Ontario v. AA (Ont CA, 2026) the Ontario Court of Appeal allowed an LSO appeal, that against the decision on an LSO-brought JR which upheld a LST Appeal Division decision supporting a lawyer application on good character grounds.

The court conducts a full open court Sherman 'test', here in a motion to make anonymization and non-publication orders:

i. Is an important public interest put at risk if anonymization and non-publication are not granted?

[202] As noted above, the first stage of the test in Sherman Estate requires AA to identify an important public interest that would be put at serious risk if the open court principle is not restricted in this appeal. Here, AA argues that disclosure of his name will cause his children, one of whom is the victim of his abuse, serious psychological harm because they will learn of his misconduct through a court process. He also argues, seemingly for the first time, that the online threats he has received heighten the risk to his family and create a risk of harm to him personally that can only be remedied with an anonymization and non-publication order.

[203] Each of these arguments relates to the public interest in privacy. As Kasirer J. observed in Sherman Estate, at para. 34:

This public interest will only be seriously at risk where the information in question strikes at what is sometimes said to be the core identity of the individual concerned: information so sensitive that its dissemination could be an affront to dignity that the public would not tolerate, even in service of open proceedings.

[204] The Supreme Court of Newfoundland and Labrador applied Sherman Estate on an application for a publication ban in a criminal proceeding brought by a practicing lawyer charged with sexual assault: R.R. v. Newfoundland and Labrador, 2022 NLSC 46, 417 C.C.C. (3d) 154. The court rejected the argument that disclosing the identity of the lawyer charged with the sexual assault met the public interest threshold under the Sherman Estate test, explaining, at para. 72:

I reject the Applicant’s assertion that the release of his identity on the facts of this case attack his biographical core. The information which would be revealed is his name and the fact that he is being charged with a number of sexual offences. While it would undoubtedly be embarrassing, it does not impact his biographical core. It does not raise a serious risk to an important public interest. It does not reach the “high bar” established in Sherman Estate and the authorities cited therein. The interests of the Applicant engaged in this case are purely private and personal.

[205] A similar analysis is applicable here.

[206] I would adopt the description of the open court principle in the good character context given by the panelist of the Hearing Division at paras. 4-5 of his reasons:

As the Appeal Division has expressed, it is a basic principle of Canadian law that proceedings of courts and administrative Tribunals be open to the public, with the ability to be publicized and reported upon. The open court principle protects democracy by ensuring that the exercise of decision-making power can be scrutinized.

These principles are particularly apt to a good character hearing. The public is entitled to know why an applicant for a licence who has engaged in serious misconduct in the past is entitled to be licensed in the future. Hearing panels engaged in examination of good character frequently have to examine the details of personal misconduct which may involve criminality, moral turpitude, ethical lapses, and errors of judgment. Good character hearings by definition involve a public examination of events which may cause embarrassment, distress or humiliation for the applicant and others involved. In the typical good character hearing the pressing need for Tribunal processes to be open, transparent and accountable far outweigh any concern regarding its impingement on personal privacy for the applicant, witnesses or third parties.

[207] Accordingly, I would reject AA’s argument that the risk of harm to him personally constitutes a matter of public interest.

[208] I would also reject AA’s argument that concern for his children’s well-being, generally, could constitute a serious risk to an important public interest. In my view, while children are inherently vulnerable and this court is entitled to identify “objectively discernible harm on the basis of logical inferences”, this “inferential reasoning is not a license to engage in impermissible speculation”: A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at para. 17; Sherman Estate, at para. 97. The lack of any contemporaneous evidence in this case renders a finding that revealing AA’s name would cause harm to his children, in general, mere speculation.

[209] AA couched his request for anonymization and non-publication before the Tribunal in terms of the harm his children would suffer if they learned of his misconduct “prematurely”. Much of the contemporaneous evidence of this potential harm came from statements in AA and his former spouse, BB’s, affidavits. The panelist of the Hearing Division accepted that “protecting vulnerable children from suffering trauma caused by their parents' legal proceedings” met the first prong of the Sherman Estate test: at para. 68.

[210] These affidavits do not specify the harm that the children would suffer if they learned of AA’s conduct, apart from vague references to the children’s mental health. In H. (M.E.) v. Williams, 2012 ONCA 35, 108 O.R. (3d) 321, this court held that convincing evidence was needed for a non-publication order protecting the identity of a serial murderer’s spouse, and that the affidavit of a treating psychiatrist alone was insufficient for that purpose. The same absence of specific evidentiary foundation exists here. The updated affidavits filed before this court shed no contemporaneous light on the record with respect to harm.

[211] The Law Society points out that courts have been hesitant to impose publication bans in cases where mere stigma may attach to the relatives of serious offenders: see e.g., R. v. Hosannah, 2015 ONSC 380, at para. 25; R. v. Jha, 2015 ONSC 1064, at paras. 14-16. Indeed, if violent misconduct does not form part of the perpetrator’s biological core, as R.R. makes clear, it is hard to see how it would form part of their relatives’.

[212] Moreover, the decision of AA and BB to tell or not tell their children about AA’s assaults, including the assault on their daughter, has little bearing on the Sherman Estate analysis. To put it bluntly, it is not up to individuals coming before the courts to dictate whether the open court principle applies based on their parenting preferences.

[213] In my view, the only public interest put at risk if anonymization and non-publication are not granted relates to the identity of AA’s daughter, as well as the other victims of his assaults. Recent jurisprudence shows that the existence and details of an assault that a sexual abuse survivor has suffered is information so sensitive that its publicity could be an affront to dignity that the public would not tolerate, even in service of open proceedings.

[214] For example, in Fedeli v. Brown, 2020 ONSC 994, Faieta J. held that disclosing the identity of a sexual assault complainant posed a serious risk to the public interest in maintaining the privacy and dignity of survivors of sexual violence:

The privacy interests of a person who makes an allegation of sexual assault or sexual harassment in a civil proceeding is high, particularly when she has not initiated the civil proceeding. A complainant may be subject to unnecessary trauma and embarrassment, both for herself and her family, if she is identified. Without protection of her privacy interests, a person who has been sexually assaulted or sexually harassed may be unwilling to come forward. Further, the failure to afford such protection to a person alleging sexual assault or sexual harassment may deter other persons from coming forward to report sexual misconduct. Such interests are recognized and protected in a criminal proceeding as s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46, provides that an order banning publication of any information that could identify a victim of sexual assault is mandatory if sought by the Crown or victim. In my view, the policy reflected by s. 486.4 of the Criminal Code is equally applicable in these civil proceedings.

[215] The Supreme Court, in Sherman Estate, at para. 77, specifically refers to Fedeli to conclude that the “range of sensitive personal information that gives rise to a serious risk” to an important public interest includes whether a person has been subject to “sexual assault or harassment”.

[216] The Supreme Court returned to this question in R. v. T.W.W., 2024 SCC 19, 437 C.C.C. (3d) 1, at para. 74, concluding:

The sexual nature of the evidence in this case touches on the complainant’s dignity and right of privacy, and that publication of this type of information gives rise to a serious risk of affront to the public interests of personal privacy and dignity (Sherman Estate, at para. 77; Fedeli v. Brown, 2020 ONSC 994, 60 C.P.C. (8th) 417, at para. 9). Privacy and personal dignity are public interests that have been recognized in our jurisprudence (see MacIntyre, at pp. 185-87; C.B.C. v. New Brunswick) including in cases involving sexual offences (see R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 82). Protecting the complainant’s privacy and personal dignity, as far as practicable, promotes the objectives of the Criminal Code’s statutory protections for complainants in encouraging reporting of offences, participation in the process, and overall confidence in the administration of justice (R. v. Kirkpatrick, 2022 SCC 33, at para. 30). [Emphasis added.]

[217] Favreau J. (as she then was) adopted a similar line of reasoning on a motion for a publication ban and sealing order in Ricard v. The University of Windsor, 2021 ONSC 5877 (Div. Ct.), at para 7:

With respect to the first part of the test, in Sherman Estate, the Supreme Court recognized that preservation of an individual’s dignity is a matter of public interest. At para. 75, the Court held that a person’s dignity can be at risk if sensitive personal information relevant to core aspects of that person’s life are made public through court proceedings. At para 77, the Court specifically identified “subjection to sexual assault or harassment” as the type of personal sensitive information that, if exposed, could pose a serious risk to a person’s dignity. Keeping the identity of complainants confidential in the context of cases involving allegations of sexual assault is also consistent with sealing orders and publication bans made in civil cases that predate the Sherman Estate decision.

[218] While this reasoning strikes me as applicable to this motion, it is worth reiterating that AA’s daughter is not a complainant, and there has been no criminal or civil proceeding in relation to AA’s admitted sexual assaults. Nevertheless, AA’s daughter is, by his own admission, a victim of his sexual abuse. In these unique circumstances, the absence of criminal or civil proceedings in which AA’s daughter is a complainant or a party does not diminish the public interest in maintaining confidentiality over that information. In my view, the Supreme Court in Sherman Estate made it clear that “subjection to sexual abuse or harassment” is a piece of sensitive personal information that, if exposed, could give rise to a serious risk to an important public interest: at para. 77. I do not take this statement to be restricted to complainants in criminal proceedings or parties to civil litigation.

[219] Indeed, the issue of the public interest risk in relation to the sexual assault of children has also been considered in the family context. In S.E.L. v. O.V.P., 2022 ONSC 1390, at paras. 29-30 and 61-69, the court recognized a public interest risk in relation to children who had been victims of sexual abuse by a third party (i.e. where the children were not complainants). The record in the family proceedings disclosed details about the abuse, CAS records, and interviews with the children: at paras. 18-20. The trial judge anonymized the identities of the parents and the children, observing that Sherman Estate recognized sexual abuse as an example of personal information that would give rise to a serious risk to an important public interest if exposed: at paras. 61-80.

[220] On the basis of the principles recognized in Sherman Estate and these lines of cases, I would accept there is a public interest risk in disclosing the identity of AA or his daughter because doing so could have the effect of disclosing that AA sexually assaulted her.

ii. Is the order necessary to prevent the serious risk?

[221] At this stage, the court’s focus is on minimally impairing the open court principle by considering reasonably alternative measures that restrict openness less significantly without sacrificing the prevention of risk: XYZ School, at para. 46, citing Sherman Estate, at para. 105.

[222] AA takes the position that his name is uncommon, and that his family is part of a close-knit religious community. In that context, he says that if he were identified, his children’s identities would be readily discoverable.

[223] I am not able to determine on the record before the court if it is accurate to describe AA’s name as so distinct that identifying AA will invariably identify his children.

[224] For the purposes of the second stage of the Sherman Estate analysis, however, I would accept, based on their familial relationship, that identifying AA could lead to identifying his daughter, and therefore the order is necessary to prevent the public interest risk in identifying a victim of a child sexual assault. In other words, it is not possible to guard against this risk without anonymizing AA’s name and imposing the publication ban sought, and so the order sought is minimally impairing.

iii. Do the benefits of the order outweigh its negative effects?

[225] At this stage, I am satisfied that the benefits of the anonymization and publication ban order AA seeks outweigh the negative effects on the open court principle. As part of this exercise, I must consider whether the information the order seeks to protect from public access is central or peripheral to the judicial process, acknowledging that the more central the information is, the more serious the deleterious effects are in protecting it: Sherman Estate, at para. 106. AA and his daughter’s identities are peripheral issues in this litigation, and I am satisfied that the orders sought sensitively balance protecting the important privacy interests at play in this case with the need to maintain court openness.

[226] However, this calculus likely changes if AA is eventually licensed. In light of the conclusion set out above that a new good character assessment by the Hearing Division is needed, AA’s status as a licensed lawyer remains to be decided.

[227] There is an argument that irrespective of whether AA is licensed to be a lawyer, there is a negative effect in shielding his identity in these proceedings. As the intervener Toronto Star Newspapers Limited argues:

While AA has not been convicted of a criminal offence, he has admitted to sexually assaulting several children, and his efforts to withhold or conceal those actions form the basis of the good character proceedings that underlie this motion. His identity and actions are undoubtedly central to those proceedings. In this context, there is significant public interest in that information being known, and the deleterious effects of the order sought outweigh the benefits it might provide.

[228] That negative effect on the public interest is no doubt greater if AA is licensed to be a lawyer. In that scenario, the intervener Law360 Canada submits that:

Keeping A.A.’s identity secret would prevent the public, including future clients, colleagues, law firms, employers and volunteer organizations, from knowing about A.A.’s sexual abuse of children, including his own—a fact that people might consider relevant to their interactions with him. Tribunal-mandated secrecy could prevent members of the public from exercising their choice, and ability to make informed decisions about, interactions with A.A., including in his role as a lawyer—contrary to the public interest.

Keeping A.A.’s identity secret would make it impossible for members of the bar, bench and governments to decide whether he is worthy of trust as a lawyer, especially in matters involving children, and whether they should refer vulnerable clients to him, work with him or indeed appoint him to the judiciary.

[229] I agree with the interveners and accept that the harm to the open court principle resulting from an anonymization and non-publication order is present irrespective of whether AA is licensed, but is heightened if AA is licensed as a lawyer. In that scenario, the harm includes the importance that members of the public know the identity of AA as a lawyer licensed notwithstanding his prior misconduct, and that members of the public have the ability to make an informed choice regarding selecting AA as their lawyer.

[230] I note that during oral submissions, AA argued this aspect of the public interest in his identity might be satisfied by the fact the condition imposed by the Tribunal was a distinguishing feature of his licensure and would be published together with his actual name on the Law Society’s website registry of licensed lawyers. Therefore, his past misconduct would be clear to potential clients. However, in light of my conclusion that this condition would be inconsistent with a finding of good character, if he were licensed after a future, positive good character assessment, presumably this would occur without the same identifying condition.

[231] Therefore, with no other way for the public and potential clients to identify AA and connect him to and review the proceedings leading to his licensure, the public interest in AA’s identity being known, in my view, would be sufficiently significant so as to potentially outweigh the risk that his daughter’s identity may be discoverable.

[232] To summarize, at this time, while AA remains merely an applicant seeking to be licensed as a lawyer, the benefits of the anonymization and non-publication order in protecting the identity of AA’s daughter, as a victim of his sexual assault, outweigh its negative effects. I would therefore impose a publication ban and anonymization order over the names of AA, his ex-spouse and their children, along with any other information that might identify them.

[233] As set out above, this balancing exercise may well lead to a different result if AA were licensed as a lawyer. Even if AA could still satisfy the first and second steps of the Sherman Estate test, absent a further record not currently before the court, AA may well fail at the third step. In other words, at the point AA is licensed as a lawyer, the benefits of an anonymization and non-publication order may be outweighed by its negative effects, including the harm to the open court principle and to public confidence in the administration of justice, at least based on the information that is currently before this court.

[234] To that end, while I would impose the requested anonymization order and publication ban at this stage, it would be open to any party to return to this court to request that they be set aside or varied following the resolution of the good character proceedings, consistent with the court’s ongoing supervisory jurisdiction over its own record: CBC v. Manitoba, at paras. 37-42. A decision of this court to set aside or vary the order being issued as a result of this motion would not affect the existing orders at the Divisional Court or Tribunal, which would remain in effect.

[235] While I set out above how the balancing exercise might change if AA were licensed as a lawyer, I emphasize that this issue is not before the court at the moment. The balancing exercise with respect to AA as a mere licensing applicant leads to the conclusion, set out above, that the benefits of the anonymization and non-publication order in protecting the identity of AA’s daughter outweigh the negative effects of the order on the open court principle.

c. Conclusion

[236] In light of this analysis, AA has established that an anonymization order with respect to this court’s record of the appeal, and a publication ban with respect to information which could identify AA, his ex-spouse or his children, are warranted.

[237] This analysis does not bind the Tribunal, which must make its own determination with respect to its record.

[238] It is neither necessary nor advisable to predetermine the result of the Tribunal’s proceedings, as there may be other arguments or facts which arise at that time which could affect its Sherman Estate analysis.