Judge rules Barry and Honey Sherman murder case too sensitive to release more case documents

An Ontario court justice has lauded the Star for its ongoing efforts to hold police accountable in the unsolved Barry and Honey Sherman murder case but for now has closed the door to releasing more information from the homicide probe.

Justice Leslie Pringle said she is concerned that releasing additional police witness statements and theories of the case from search warrant documents would impact the integrity of the ongoing police investigation." In a ruling on the case, which was back in court Wednesday, Pringle said she is also concerned that to release more information would prejudice the interests of innocent persons." Pringle did not identify those individuals.

Previously, Pringle has allowed large swaths of information to be released, which has fuelled an ongoing investigative series in the Star that has revealed numerous problems with how the high-profile murders have been investigated. While refusing to release more, she acknowledged that considerable time has passed since the murders.

While old, this case is unfortunately still in the investigative phase," Pringle said in her ruling. Charges have not been laid, and it is necessary and in the public interest for the police to continue their investigation if the perpetrators are to be brought to justice."

Billionaire pharmaceutical titan Barry Sherman, founder of Apotex, and his wife Honey were murdered in their Toronto home on the evening of Dec. 13, 2017. Toronto police originally pursued a murder-suicide theory, but announced it was a double homicide six weeks later after the Star revealed the results of a second set of autopsies arranged by the Sherman family. Toronto homicide detectives had been invited to attend these post mortems, but declined the offer from the Sherman private detective team.

Pringle noted the Star has continued to hold the police to account" in the case through cross-examination of the lone full-time detective on the case, publishing stories and bringing details of the Sherman investigation to the public's attention."

This is appropriate and important," Pringle said of the Star's continued efforts to scrutinize the case. If the police have fallen short or made mistakes, freedom of expression requires that the media be free to criticize and second-guess their investigation."

The Star told court Wednesday it is considering seeking a judicial review of Pringle's decision to maintain sealing orders on the remaining documents. That would take place at the Superior Court of Justice, the court level above the Ontario Court of Justice.

Pringle is the judge to whom police have gone to approve a series of search warrants and production orders they required to obtain information for the probe - banking records, cellular phone data and other information. As is routinely done with warrants, Pringle approved the police request to seal the documents.

Details of the protracted Sherman investigation are contained within the more than 3,000 pages of search warrant and production order documents. Starting in March 2018, the Star has been arguing in court, in hearings every six months, for Pringle to unseal portions of the documents.

In her ruling, Pringle noted the Star's applications have been very successful," in leading to a large release in late 2020, and a second large release a few months ago. She said the Star has continued to hold the police to account" throughout the process.

In its arguments for more unsealing, the Star has made reference to Supreme Court judgments over the last 40 years which held that sealing orders are typically made so that the target of a warrant does not know it is about to be served. But courts have said that once served on the target, the need for secrecy all but evaporates.

Despite this, lower courts (warrants are typically signed by lower court judges) often maintain sealing orders and it is up to the media to fight for release of documents as a way of scrutinizing police activity and the investigation itself.

In recent months, Pringle has ordered the release of case details that showed Barry owed $1 billion leading up to his death and saying he was not going to pay; the estate of the Shermans is somehow part of the murder investigation; and a four-year attempt by police to determine the identity of the walking man" killer and whether he was in contact with someone the night of the murders failed. Police did not ask for the public's help in identifying the walking man during this four-year period, only seeking public help last December.

Among other information released through this court process: detailed descriptions of how the Sherman bodies were discovered; point-form notes of interviews with Sherman children and other family; notes of most but not all Sherman friends and associates canvassed by police; and a partial explanation of why it took six weeks for police to determine it was a double homicide - the first pathologist on the case was unable to make that determination.

A Star reporter has argued in court that there is no danger to the investigation if more of the files are released. The Star has pointed to numerous pieces of information released through the process that, once released, caused no harm to the probe (according to police). Some are inner business dealings of Apotex, some are the statements of the four Sherman children, and some are, the Star argued, obviously trivial (a police photo of Barry's messy office in one case, and a photo of Barry with Prime Minister Justin Trudeau in another instance).

Detective Constable Dennis Yim, the lone full-time Toronto homicide officer on the case, has repeatedly told Pringle during the Star's cross-examination that something that might seem meaningless at one point in the probe could take on deeper meaning at another point. That's why, he says, he errs on the side of asking for information to remain sealed.

Justice Pringle agreed with the Star that there was merit" to the Star's arguments earlier this year that police have been overly cautious in trying to keep so much of the file sealed. As an example, she noted how she has now approved the release of comments by family members saying Barry was complicated and brilliant but lacking in emotional and social intelligence" and Honey was a strong personality, loud, outgoing and loving." The Star had argued that to keep that sealed was nonsensical."

In its arguments, the Star has identified numerous categories that, it argued, should also be unsealed. They include: additional images of the walking man captured by security cameras in the vicinity of the Sherman home the night of the murders (police say this would reveal the man's direction of travel"); security camera photos of Barry and Honey arriving and leaving Apotex after a meeting and them arriving home the night they were murdered (police say this would reveal if someone was following them); specific details of what areas police canvassed following the murders - the Star has found places, including a synagogue down the street from the Sherman home that was not canvassed for video; a detailed timeline police have created of the walking man and the movements of the Shermans the day they died; the still-redacted statements of Sherman family members and others who were pointing fingers at several individuals they believed were involved in the murders; and the reason the estate documents related to Barry and Honey are apparently key to the case.

Paragraphs describing the Sherman estate documents, which reveal that the four Sherman children were the lone beneficiaries, have been released but the court will not say where they are in the documents or for what reason.

The Star has also argued that the court has wrongly maintained a seal on statements or partial statements of three individuals who have themselves said publicly that they have likely been considered as persons of interest" in the case - all three say they had nothing to do with the murders. A Star reporter referred to this as the elephant in the room" and argued that to maintain the seal on the statements is unfair to these individuals because it could make them appear as suspects when they are not.

Kevin Donovan is the Star's chief investigative reporter based in Toronto. He can be reached at 416-312-3503 or via email: kdonovan@thestar.ca