When lawyers for the estate of murdered billionaires Barry and Honey Sherman asked a judge to seal probate files in 2018, they warned the court of “risks of violence and kidnapping” to heirs and the estate trustees if the files became public.
That specific written warning was footnoted to a sealed court document known until recently only as the “affidavit of AB.”
But now that the mysterious affidavit has been unsealed by the Supreme Court of Canada, one thing is clear: The words “violence” and “kidnapping” were never there.
So, where did those words come from?
A lawyer for the Sherman estate told the Star that there was nothing wrong with including “examples” of what might happen — violence and kidnapping — in their arguments to the court, even though they did not appear in the footnoted evidence they told the court they were relying on.
The Sherman lawyer, Chantelle Cseh, said these two words were provided as “examples of the sorts of risks of serious harm” that could result if the documents were unsealed.
The case raises important issues of public access to court information, something strongly reaffirmed by the recent Supreme Court decision in the Toronto Star’s favour.
The Sherman estate’s attempt to seal the documents from public view make for interesting reading. As part of the its continuing investigation into the case, the Star has been seeking information related to Sherman’s business affairs, associates, the police investigation and his estate. Toronto police have said the estate of the Shermans is “embedded” in their investigation.
The bodies of Barry and Honey Sherman were discovered almost four years ago in December, 2017, in the basement swimming pool room of their Toronto home. Initially pursued by the Toronto police as a double suicide or murder suicide, detectives (following a Star investigation) announced it was a case of targeted double homicide. The case remains unsolved, with a lone detective working full time on the probe.
Barry was the founder and owner of Apotex, Canada’s generic drug giant. Honey was, like, Barry, a philanthropist and involved in numerous charities.
Six months after the Shermans were found dead, the four trustees of their estate applied to the court to verify the assets, trustees and beneficiaries, a process know as “passing” the accounts of an estate. When the Star asked in June 2018, to see the estate file (these files are normally public), it was told by a clerk at the University Avenue courthouse in Toronto there was a “protective order” sealing the file.
A Star reporter challenged the order in a hearing before Justice Sean Dunphy of the Superior Court of Justice. The Sherman estate was represented by Tim Youdan and Chantelle Cseh of the Davies law firm.
In its arguments, the Star was, in effect, working blind; the sealing order prevented it from seeing what evidence the Sherman estate lawyers were advancing to prove their case that the file should remain sealed. To maintain the seal on the files, the Davies firm had to show evidence of a risk. The documents at issue were Barry’s will and the identities of his beneficiaries and the four estate trustees. The Star argued that this information was largely in the public domain.
In the Davies factum, provided to court and to the Star, lawyers provided arguments related to the evidence they were advancing to keep the documents sealed.
“The Requested Materials contain sensitive personal information (including full names and addresses), the disclosure of which would cause serious harm, detriment and/or injustice to the Estate Trustees and the Beneficiaries. In particular, there is a legitimate and ongoing risk to the personal safety and security of each of these individuals, including risks of violence and kidnapping. In circumstances where the identity and motivation of the perpetrator (s) of the murders remains a mystery.” That paragraph in the Davies factum is footnoted to the A.B. affidavit.
Usually, media counsel arguing “sealing” motions are permitted to see, at the very least, the evidence submitted to justify a sealing order, for the purpose of making arguments on whether a sealing order is appropriate.
Remarks Emma Carver, the Star’s lawyer: “This allows the adversarial legal process to work as it’s supposed to and ensures that the media’s procedural rights are protected.
“Media counsel will scrutinize the evidence and make argument on whether it supports the order being requested.”
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However, the Star was not allowed to view the AB affidavit, and, as the case proceeded to Ontario Court of Appeal and finally 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 of 2021, when the Supreme Court of Canada, in a ruling that reaffirmed the open court principle in Canada, ordered the entire estate file unsealed.
AB turned out to be Bradley Krawczyk, husband of Sherman daughter Alexandra. Krawczyk was one of the four estate trustees appointed by the late Barry Sherman to handle their affairs. The others were Sherman son Jonathon, Sherman family company executive Alexander Glasenberg, and Jack Kay, Barry’s close friend and second in charge at Apotex. Krawczyk swore the short, 13-paragraph affidavit to justify the sealing.
No other evidence was provided.
In the now-unsealed Krawczyk affidavit, the lone paragraph warning of risks gives his general risk assessment:
“There is a real and substantial risk that the (trustees) and members of the Sherman family will suffer serious harm, detriment or injustice from public exposure of the materials, particularly in the circumstances that the identity and motivation of the perpetrator(s) of the murders remain a mystery.”
The Star asked the Davies firm why they would use such specific words like “kidnapping” and “risks of violence” in their argument, when those words were never in the Krawczyk (AB) affidavit.
Lawyer Cseh (Tim Youdan was the senior lawyer on the case) said the Davies’ arguments were “entirely consistent with and supported by the Affidavit of AB.” She said the Star “may be operating under the misapprehension that every argument made in a factum must track identically, 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 saw their factum also had an unsealed copy of the AB affidavit and “were easily able to assess the examples of risk referred to in the factum of the Estate Trustees.”
The Star lost at Superior Court, where the judge, having seen the affidavit, wrote in his judgment: “The risk of harm is foreseeable and the foreseeable harm is grave.” The Star appealed to Ontario Court of Appeal, winning the appeal. In the ruling, the three justice panel concluded that the “single paragraph” in the AB affidavit (still sealed from public and the Star’s eyes at that point) provided “no evidence that could warrant a finding that disclosure of the content of the estate files posed a real risk to anyone’s personal safety.”
The Sherman estate appealed to the Supreme Court of Canada and, three years after the Star first asked to see the file, the court ruled in the its favour and made the entire file public.
In the ruling, the Supreme Court agreed with Toronto Star lawyer Iris Fischer that the probability of harm occurring is “speculative.
“On this record, the bare assertion that such a risk exists fails to meet the threshold necessary to establish a serious risk of physical harm,” the court wrote.
In addition to the Krawczyk affidavit, the Sherman estate files revealed that Barry’s will divided his estate equally between the four children. No will of Honey’s 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 given that there was very little information in the documents.
In an interview last December (before the Supreme Court ruling), Sherman son Jonathon said while he, one of his father’s estate trustees, initially wanted the estate documents kept secret, he eventually changed his mind and hoped the Star would be successful in unsealing them, as they contain information he wants the newspaper to see. “My M.O. was f-k Donovan, I don’t want him prying into my life …. My own personal view has changed …. There is nothing in there that is worth keeping secret.”)
As the Star has previously reported, Jonathon and his sister, Alexandra, are battling over control of the family fortune and philanthropy pursuits.
Kevin Donovan can be reached at 416-312-3503 or [email protected]
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