When lawyers for the estate of slain billionaires Barry and Honey Sherman asked a judge to seal the probate files in 2018, they warned the court of the “risks of violence and kidnapping” for heirs and estate administrators if they files were made public.
That specific written warning was included in a footnote to a sealed court document known until recently only as the “AB Affidavit.”
But now that the Supreme Court of Canada released the mysterious affidavit, one thing is clear: the words “violence” and “kidnapping” were never there.
So where did those words come from?
An attorney for the Sherman estate told the Star that there was nothing wrong with including “examples” of what could happen (violence and kidnapping) in his arguments in court, even though they did not appear in the footprint evidence. of page that they told the court they were trusting.
Sherman’s attorney, Chantelle Cseh, said these two words were provided as “examples of the types of serious injury risks” that could result if the documents were opened.
The case raises important questions of public access to judicial information, something that was strongly reaffirmed in the recent Supreme Court decision in favor of the Toronto Star.
The Sherman estate’s attempt to seal the documents from public view makes for interesting read. As part of her ongoing investigation into the case, Star has been seeking information related to Sherman’s business affairs, the associates, the police investigation, and his estate. Toronto police have said the Shermans’ heritage is “embedded” in their investigation.
The bodies of Barry and Honey Sherman were discovered nearly four years ago in December 2017, in the basement pool room of their home in Toronto. Initially pursued by Toronto police as a double suicide or murder suicide, detectives (following a Star investigation) announced that it was a targeted double homicide case. The case remains unsolved, with a lone detective working full time on the investigation.
Barry was the founder and owner of Apotex, Canada’s generic drug giant. Honey was like Barry, a philanthropist and was involved in numerous charities.
Six months after the Shermans were found dead, the four trustees of their estate asked the court to verify assets, trustees and beneficiaries, a process known as “passing” the accounts of an estate. When the Star asked in June 2018 to see the probate file (these files are normally public), a clerk at the University Ave. court in Toronto told him there was a “protection order” sealing the file.
A Star reporter challenged the order in a hearing before Superior Court Judge Sean Dunphy. Sherman’s estate was represented by Tim Youdan and Chantelle Cseh of the Davies Law Firm.
In his arguments, the Star was, in effect, working blindly; the sealing order prevented him from seeing what evidence Sherman’s estate attorneys were presenting to prove their case that the record should remain sealed. To keep the seal on file, the Davies firm had to show evidence of a hazard. The documents in question were Barry’s will and the identities of his beneficiaries and the four trustees of the estate. The Star argued that this information was largely in the public domain.
In the Davies factum, provided to the court and the Star, the attorneys provided arguments related to the evidence they were presenting to keep the documents sealed.
“The Requested Materials contain sensitive personal information (including full names and addresses), the disclosure of which would cause serious damage, prejudice and / or injustice to the Estate Trustees and the Beneficiaries. In particular, there is a legitimate and ongoing risk to the personal safety of each of these individuals, including risks of violence and kidnapping. In circumstances where the identity and motivation of the perpetrators of the murders remains a mystery. “That paragraph of Davies’ factum is included in a footnote to AB’s affidavit.
Generally, media attorneys arguing “sealing” motions are allowed to see, at a minimum, the evidence presented to justify a sealing order, for the purpose of presenting arguments as to whether a sealing order is appropriate.
Emma Carver, an attorney for Star, comments: “This allows the prosecution process to work as it is supposed to and ensures that the procedural rights of the media are protected.
“Lawyers for the media will examine the evidence and argue whether they support the requested order.”
However, the Star was not allowed to see AB’s affidavit, and as the case progressed to the Ontario Court of Appeals and eventually the nation’s highest court, the affidavit remained sealed.
What else was in the affidavit? Who was the author? A security specialist? A private detective? In response to a question raised in court, the Star was only told that the affidavit did not come from a Toronto police officer.
The identity of the author remained unanswered until June 2021, when the Supreme Court of Canada, in a ruling that reaffirmed the principle of a public hearing in Canada, ordered that the entire estate file be opened.
AB turned out to be Bradley Krawczyk, husband of Sherman’s daughter Alexandra. Krawczyck was one of four wealth managers appointed by the late Barry Sherman to handle his affairs. The others were Sherman’s son Jonathon, Sherman family business executive Alexander Glasenberg, and Jack Kay, Barry’s close friend and second in charge of Apotex. Krawczyck swore in the short 13-paragraph affidavit to justify the sealing.
No other evidence was provided.
In Krawczyk’s affidavit, now unsealed, the only paragraph warning of the risks gives his overall risk assessment:
“There is a real and substantial risk that the (trustees) and members of the Sherman family will suffer serious harm, injury or injustice from the public display of the materials, particularly in circumstances where the identity and motivation of the perpetrators of the murders remain a mystery. “
The Star asked the Davies firm why they would use such specific words as “kidnapping” and “risks of violence” in their argument, when those words were never in the Krawczyk (AB) affidavit.
Attorney Cseh (Tim Youdan was lead counsel in the case) said the Davies’ arguments were “fully consistent with AB’s Affidavit” and supported by it. She said the Star “may be operating under the misunderstanding that every argument made in a factum must identically track, word for word, the content of an underlying affidavit. That is not now and has never been the case. ”
Cseh noted that the three levels of court that viewed his factum also had an unsealed copy of AB’s affidavit and “were able to easily assess the risk examples referenced in the estate trustees factum.”
The Star lost in Superior Court, where the judge, upon seeing the affidavit, wrote in his sentence: “The risk of harm is foreseeable and the foreseeable harm is serious.” The Star appealed to the Ontario Court of Appeal and won the appeal. In the ruling, the three-judge panel concluded that the “single paragraph” of AB’s affidavit (still sealed to the public and in Star’s eyes at the time) did not provide “any evidence that could justify a conclusion that the disclosure of the contents of the heritage files posed a real risk to anyone’s personal safety. “
Sherman’s estate appealed to the Supreme Court of Canada, and three years after Star first asked to see the record, the court ruled in his favor and released the entire record.
In the ruling, the Supreme Court agreed with Toronto Star attorney Iris Fischer that the likelihood of harm occurring is “speculative.
“In this record, the mere assertion that such a risk exists does not meet the threshold necessary to establish a serious risk of physical harm,” the court wrote.
In addition to Krawczyk’s affidavit, Sherman’s estate files revealed that Barry’s will divided his estate equally among the four children. No will of Honey was ever discovered.
The Star has asked the Sherman children for an explanation of why the Sherman estate fought so hard for so many years to keep the files sealed, particularly since there was very little information in the documents.
In an interview last December (before the Supreme Court ruling), Sherman’s son Jonathon said that while he, one of the trustees of his father’s estate, initially wanted the estate documents to stand. secretly, he finally changed his mind and hoped that Star would be successful in opening them. as they contain information that you want the newspaper to see. “My modus operandi was fk Donovan, I don’t want him to intrude on my life … My personal point of view has changed … There is nothing there worth keeping secret”).
As The Star previously reported, Jonathon and his sister, Alexandra, are fighting for control of the family fortune and philanthropic activities.
Reference-www.thestar.com