Toronto Police are planning more search warrants in the Barry and Honey Sherman murder probe and may use “surreptitious or covert” techniques to find the killer or killers, according to police documents.

Locked up under seal in a North York court are hundreds of pages filed by police in the last three months in support of 15 warrants or production orders already used to obtain medical, banking and other records related to the Sherman probe.

Toronto Police say these documents “contain a fairly comprehensive (although by no means exhaustive) summary of the investigation, including summaries of many witness interviews, summaries of the forensic examination of the crime scene and post-mortem examinations … and images from surveillance footage and scene photos.” Police made these comments in a court affidavit opposing the Toronto Star’s attempt to gain access to some or all of these files.

Justice Leslie Pringle of the Ontario Court of Justice recently released portions of search warrant materials to the Star, but ruled most will remain sealed “at this stage of the case.” She told the Star it could reapply if something changes, such as an arrest being made or if the investigation “concludes.”

The Shermans strangled bodies were discovered by a real estate agent at their Toronto home on Fri., Dec. 15, 2017. Initially, and for at least a month, Toronto police pursued the case as if it was most likely a murder-suicide, with Honey, 70, listed on warrant documents as the only victim.

On Jan. 26, the lead investigator in the case announced to the press that the case is being probed as a targeted, double murder. This came a week after the Star reported that a second autopsy by a veteran pathologist retained by the Sherman family had concluded it was a double murder. Barry, 75, was first noted on the police warrant documents as a victim of murder in February. Previously, only Honey was listed as a victim.

Police have refused to answer questions about the investigation.

When police investigate, they often apply to court for search warrants (for a place) or production orders (for banking and other records). As reported earlier this month, police have obtained a number of judicial authorizations granting them access to banking information (the account owners were not released to the Star), the Shermans’ medical records dating back to 2010 (likely to see if either was treated for depression), and loyalty cards, probably for airlines.

Justice Pringle released the cover pages of the warrants and production orders, but not the extensive backup documents, called “information to obtain” (ITO), used by police to get these judicial authorizations. She was the justice who signed all of the warrants and production orders known to be issued in the case, between Dec. 20, 2017 and Feb. 15, 2018.

Det.-Sgt. Susan Gomes during a press conference at Police Headquarters, January 26, 2018.

As is typically the case, Justice Pringle sealed the materials, and sealed the sealing order that sealed the materials.

In Canada, the workings of the courts, including court documents, are presumed to be open unless there is a good reason for them to be sealed.

The Supreme Court of Canada has previously ruled that once a warrant is executed, the warrant and the information upon which it is issued must be made available to the public unless police can demonstrate that releasing it would “subvert the ends of justice.” Translation in this case: If police can show that making the details public would hurt an ongoing investigation.

Due to the controversy surrounding the initial stages of the police investigation (the murder-suicide theory, now debunked), the Star argued in court that access to some or all of the warrant material would allow the public to scrutinize the activities of police. Why, for example, did the police think it was a murder-suicide?

In their response, the Toronto Police filed an affidavit from police detective Dennis Yim of the 32 Division, Major Crime Unit. He has been seconded to the homicide squad under the direction of Detective Sergeant Susan Gomes.

In court, Yim, and Crown attorney Peter Scrutton, provided numerous reasons to maintain the seal.

Yim explained that the case is active, with “474 investigative actions” being “vigorously pursued.” He said police have 64 tips to follow up on, 240 people have been identified to be interviewed or have already been interviewed, and 51 officers are working the case.

Yim said the first concern the police have is that they have intentionally “held back” from the public certain information, and they want to use that to assess the reliability of other information they may receive.

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“At this stage of the investigation, while witnesses are still being interviewed, a witness might on his or her own reveal a detail that police come to realize has never been publicly disclosed,” Yim said. The police state they are also concerned that, if the sealed material detailing the investigation to date is released, it “could contaminate subsequent witness statements … by enabling a witness to provide an account of events that coheres with other evidence known to them.”

Toronto Police also say they are worried that disclosure “could also prejudice any ongoing or future investigative actions that are surreptitious or covert in nature.” No details were provided.

Another police concern was that, if the specific locations searched, and the items seized, were disclosed “the perpetrator(s) would know exactly what items or evidence have not been obtained and could take steps to frustrate our attempts to collect evidence.”

The Star argued that the “perpetrator(s)” likely already knew what would needed to be done to frustrate the police. Similarly, police said they were worried that, if the public were told who had been interviewed, this would allow the “perpetrator (s)” to approach people who have not been interviewed “with a view to influencing their participation in the investigation.”

Near the end of his affidavit, detective Yim raises the concern of the safety of witnesses.

“Given the violent nature of the crime under investigation, the identification of witnesses raises potential concerns about witness safety. I do not mean to imply that I have knowledge of any specific safety risks,” Yim stated. “I am merely making this connection from the apparently premeditated nature of the homicides being investigated.”

Finally, Yim told court in his affidavit that by making warrant material public, “the perpetrator(s) would know whether the police have identified any suspects of persons of interest, which could precipitate the perpetrator (s) flight, or other actions designed to frustrate the investigation or prosecution.”

Yim did not say if police had a suspect.

In her ruling, Justice Pringle agreed with the Star that, “just because a police officer deposes that access to, and publication of sealed materials poses a serious risk to the investigation, does not mean that the test to maintain the sealing order is met.”

Justice Pringle added it is “also true that some of the police concerns in this case are expressed in rather generalized, as opposed to specific terms, such as the potential for violence to witnesses or destruction of evidence.”

But, while Justice Pringle said she agrees “wholeheartedly” with the importance of the press in telling the public about what transpires in court, she said, in this case, preserving the “integrity” of the probe trumps the public’s right to know information at this time.

She noted that this is a “temporary” ban and invited the Star to reapply if there is a change in the investigation.

Kevin Donovan can be reached at (416) 312-3503 or kdonovan@thestar.ca

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