|
Open Court - Sherman Test - Public Interest. B.E. v. O.R. [public interest in sexual privacy]
In B.E. v. O.R. (Ont CA, 2026) the Ontario Court of Appeal considered the appellant's motion for directions respecting 'open court' issues, these "about the extent to which protective measures should be taken to guard his and the respondent B.E.’s privacy and dignitary interests during the civil appeal process".
The court considers the public interest element of the Sherman test, here in the form of sexual privacy:[37] First, B.E. and O.R. each allege that they were sexually assaulted by the other. Information revealing that someone has been the victim of a sexual assault is a well-established category of “sensitive personal information that, if exposed, could give rise to a serious risk”: Sherman Estate, at para. 77; see also R. v. T.W.W., 2024 SCC 19, 492 D.L.R. (4th) 193, at para. 74; Law Society of Ontario v. AA, at paras. 213-17.
[38] In my view, it makes no difference that the trial judge accepted B.E.’s evidence that he was sexually assaulted by O.R., but rejected O.R.’s claim that he was sexually assaulted by B.E. The correctness of her factual findings are disputed in this appeal. In any event, as B.E. notes in his factum, “[s]exual assaults are severely underreported and there is a public interest in making the justice system more accessible to victims”. This public interest would be undermined if sexual assault complainants were viewed as losing protection over the public disclosure of their identities when a trial judge rejects their evidence on a balance of probabilities.
[39] Second, the trial record contains references to both B.E. and O.R.’s respective sexual orientations. This is a second well-established category of sensitive private information that is capable of meeting the first branch of the Sherman Estate test: see Sherman Estate, at para. 77; R. v. Paterson (1998), 1998 CanLII 14969 (BC CA), 122 C.C.C. (3d) 254 (B.C. C.A.), at paras. 76, 78 and 87-88. In my view, it does not matter that the accuracy of some of this information is disputed. False claims about highly personal matters such as a person’s sexual orientation can adversely affect that person’s dignity just as much as true claims.
[40] Third, the Appeal Book and Compendium and the Exhibit Book contain extensive copies of documents taken from B.E. and O.R.’s personal medical records. Some of these records contain “information related to stigmatized medical conditions”: Sherman Estate, at para. 77. Moreover, as in R. v. Starnaman, 2026 ONCA 183, at para. 63, the medical documentation in the Exhibit Book apparently “spans decades and includes highly private information about collateral medical diagnoses, medications, and treatment”.
[41] I agree with the parties that these three categories of documents all meet the Sherman Estate threshold: they all contain information that is “sufficiently sensitive” such that “there is a serious risk that, without an exceptional order, the affected individual will suffer an affront to their dignity”: at para. 35.
....
a. Information bearing on the parties’ sexual histories and/or orientations
[45] I will start by considering the first two categories of sensitive personal information discussed above, namely: (i) information bearing on B.E. and O.R.’s claims that they were sexually assaulted; and (ii) information, whether accurate or not, that reveals or implies details about their respective sexual orientations.
[46] Although this is a civil appeal, similar concerns about protecting the dignitary interests of sexual assault complainants frequently arise in criminal sexual offence appeals, which make up a very large part of this court’s docket.
[47] The Criminal Code, R.S.C. 1985 c. C-46, gives criminal sexual offence complainants various forms of privacy protection. Most notably, s. 486.4(1) and (2) requires judges presiding over sexual offence preliminary inquiries or trials to order publication bans over any information that “could identify the victim or a witness”, whenever such orders are requested by “the victim, the prosecutor or any such witness”. These orders remain in force after the trial is completed.
[48] However, the Criminal Code does not require all such proceedings to be conducted in camera, and court files in criminal sexual offence trials are not routinely ordered sealed. Complainants and witnesses typically testify in open court, and they are commonly referred to by name in the courtroom, in court documents, and in documents that are filed as exhibits. In short, the statutory prohibition on publishing information that could reveal complainants’ and witnesses’ identities is generally treated as striking an appropriate balance between the public interest in protecting their dignity and the competing public interests that are served by having open courts.
[49] In nearly all criminal sexual offence appeals that reach this court, there is already a s. 486.4 publication ban in effect. As a result, this court is rarely called on to make a new publication ban order. Rather, the court typically complies with the existing publication ban by anonymizing the names of sexual offence complainants and other persons closely associated with them in published documents, including reasons for decision and reasons for judgment. Judges of this court are also adept at crafting reasons that avoid revealing any personal information that might identify such persons indirectly. However, this court does not routinely order that its files in sexual offence appeals be sealed, even when these files include documents containing information that directly or indirectly reveals the complainant or witnesses’ identities. Moreover, nearly all sexual offence appeals are heard in open court.
[50] The Criminal Code has special rules for specific defence applications in sexual offence trials that raise heightened privacy concerns: namely, applications under s. 278.3 for the production of private records; and applications under s. 278.92 to determine the admissibility of a complainant’s prior sexual activity evidence and/or private records in the possession of the defence. These applications must be conducted in camera, and are subject to special statutory publication ban provisions: see Criminal Code, ss. 278.4 to 278.7, 278.9 and ss. 278.93 to 278.95.
[51] However, the Supreme Court of Canada has interpreted these statutory provisions as not applying to appeals: T.W.W., at paras. 55-67. Appellate courts still have a discretionary implied authority to order publication bans and make other protective orders, including sealing orders and directions that hearings be conducted in camera, but O’Bonsawin J. cautioned that “a court’s discretion to make orders that limit court openness is not to be exercised lightly”: T.W.W., at paras. 68-69; see also paras. 58, 77. She also emphasized some of the important contextual differences between trial proceedings and appeals, including the fact that appeals are conducted against the backdrop of whatever protective orders were made in the courts below: T.W.W., at paras. 70, 77.
[52] Consistent with T.W.W., this court does not routinely hold criminal sexual offence appeal hearings in camera, even when the trial court’s decision on an application under s. 278.3 or s. 278.92 is in issue: see, e.g., R. v. J.O.P., 2025 ONCA 121, at paras. 7-11.
[53] In my view, this court’s standard practices in criminal appeals involving sexual offences, reinforced by the Supreme Court of Canada’s guidance in T.W.W., have important implications for where the appropriate balance should be situated in O.R.’s civil appeal.
[54] B.E. and O.R.’s privacy and dignitary interests as civil sexual assault complainants strike me as indistinguishable from those of criminal sexual offence complainants, who have the same legitimate concerns that their dignity will be affronted if their identities become public. As I have discussed, in the context of criminal appeals these concerns are nearly always treated as adequately addressed by the existence of a statutory publication ban. B.E. and O.R.’s concerns, and the public interest in protecting their privacy, would in my view be similarly well-protected in this civil appeal if I were to make a discretionary common law order, analogous to an order under s. 486.4 of the Criminal Code, prohibiting publication of their names, and of any other information that would reveal their identities.
[55] I accept that making a sealing order would give B.E. and O.R. even more protection. The Appeal Book and Compendium and the Exhibit Book contain numerous documents that refer to them by their full names, as well as many more documents that contain personal details about them, such as their addresses, the name of the community in which they live, their professions and work histories, and their educational backgrounds. I agree with counsel that it would not be difficult for anyone – especially someone who knows B.E. and/or O.R. personally – to piece this information together and determine their identities. However, the same can be said of the court files in nearly all criminal sexual offence appeals, which are not routinely ordered sealed. At paras 72-87 the court considers specifically the privacy interests in medical records, where there is cross-over on sexual privacy regarding "stigmatized medical diagnoses".
. B.E. v. O.R.
In B.E. v. O.R. (Ont CA, 2026) the Ontario Court of Appeal considered the appellant's motion for directions respecting 'open court' issues, these "about the extent to which protective measures should be taken to guard his and the respondent B.E.’s privacy and dignitary interests during the civil appeal process".
Here the court considers the open court 'public interest' element:3. Serious risk to an important public interest
[35] As Kasirer J. observed in Sherman Estate, at para. 31, “some degree of privacy loss — resulting in inconvenience, even in upset or embarrassment — is inherent in any court proceeding open to the public”. A litigant or witness’s personal privacy interests will only justify interfering with court openness in situations where publicly disclosing “highly sensitive” private information about the person would compromise their dignity: para. 33. Kasirer J. explained at para. 35:[T]he applicant must show on the facts of the case that, as an important interest, 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 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. . Askary v. Information and Privacy Commissioner
In Askary v. Information and Privacy Commissioner (Ont Div Ct, 2026) the Ontario Divisional Court considers exceptions to the Sherman Estate 'open court' doctrine:[8] As noted by the Supreme Court of Canada in Sherman Estate at paras. 2, 3 , and 7, there is a strong presumption in favour of open courts. Inconvenience, embarrassment, and intrusion into private lives may result from accessing the courts. That is not generally enough to overturn the strong presumption that court proceedings and records are open to the public. Exceptional circumstances may exist where competing interests justify a restriction on the open court principle.
[9] The person seeking to infringe on the open court principle by obtaining a sealing order is required to meet the high bar of demonstrating that openness presents a serious risk to a competing interest of public importance, that the order is necessary to prevent the risk, and that the benefits of that order outweigh its negative effects.
[10] The Supreme Court of Canada in Sherman Estate also instructs as follows:a. Protecting human dignity from serious risk may constitute a competing interest of public importance that warrants an exception to the open court principle (para. 7).
b. The court may protect the dissemination of information related to core aspects of individuals’ personal lives of a highly sensitive nature that bears on their dignity (paras. 33 - 35).
c. Dignity will be at risk in only limited cases (para 63).
d. It may include a loss of control over a “highly sensitive aspect of who they are that they did not consciously decide to share” (para. 71).
e. The information must relate the a person’s biographical core (para 75) At paras 11-15 the court consequently walks through it's analysis of the applicant's 'sealing order' arguments.
|
