Analysis of Nygard bail denial appeal

Law360 Canada (November 13, 2024, 10:22 AM EST) --

John L. Hill

Peter Nygard is being detained in custody awaiting an appeal from conviction and sentence for sexual assaults that he has been accused of committing between 1988 and 2005. On Oct. 7, 2024, he was denied appeal bail (R. v. Nygard, 2024 ONCA 744).

He sought to appeal the denial of bail by bringing a motion to kickstart a review by a Court of Appeal panel by having the chief justice determine there is an arguable case for review, the first step in a s. 680 Criminal Code application. In this review, Associate Chief Justice Michal Fairburn stood in for the chief justice and heard the motion on Nov. 5, and her decision was released three days later (R. v. Nygard, 2024 ONCA 828).

Alan D. Gold and Ellen C. Williams argued that a full Court of Appeal review was warranted based on the bail judge’s errors in dealing with facts and law that skewed the results toward detention. Had that judge reasoned correctly, they argued justice would have been served with Nygard’s release on house arrest and electronic monitoring.

The defence team maintained that the bail judge unfairly discounted the probative value of Dr. Leslie Goldenberg’s medical report concerning Nygard’s frail physical condition. That report first surfaced after Nygard’s conviction and relied heavily on Nygard’s self-reporting, among other things. The defence argued that the bail judge’s discounting of that report was unfair in that the trial judge did not have the benefit of reviewing it before imposing a sentence. Further, the self-reported details comprised only a portion of the medical report. The bail judge should have realized that Nygard is almost blind, requires a wheelchair and requires regular medical testing. He should not be considered a flight risk.

Justice Fairburn was not convinced. The bail judge rightfully considered the trial judge’s assessment of Nygard’s health needs and concluded that correctional authorities could provide medical care. Nygard is elderly, and his health concerns are part of aging. The Goldenberg report added nothing new on that front.

The defence also argued that the bail judge erred in misapprehending the nature of Nygard’s proposed release plan. The court was concerned that Nygard would surrender himself into custody, and the bail judge was worried that his incentive to flee had increased given his convictions and the outstanding charges yet to be decided in Canada and the United States. The bail judge had referenced non-compliance with court orders in the Bahamas (R. v. Nygard, 2022 ONCJ 20), and he has access to significant financial resources outside the country (United States v. Nygard, 2021 MBQB 27, leave to appeal to S.C.C. refused, Nygard v. United States of America, [2021] S.C.C.A. No. 131). Further, he lacks ties to the Winnipeg community where he proposes to reside.

That point raised another fault pointed out by the defence. It was admitted he has no roots in that community. Instead, Nygard had proposed he would put up $1 million to secure his release. The money was in the value of a Winnipeg home presently in the name of an employee, Greg Fenske, who agreed to a seizure of the property if Nygard fell in default of his bail terms. The bail judge had misapprehended Fenske’s involvement and believed he was being offered as a surety.

Justice Fairburn pointed out that the draft release order named Fenske as a proposed surety pledging half the value of his home. But even if the trial judge had misunderstood that the defence was not proposing a surety bail, the onus was on Nygard to show he would surrender himself into custody if released. The bail judge correctly concluded Nygard had a greater incentive to flee now than when facing trial. He had deep pockets, a history of non-compliance with court orders and lacked roots in the Winnipeg community.

Finally, the defence maintained that the bail judge erred in assessing reviewability by failing to appreciate the strength of the admission of expert evidence regarding the response to traumatic events that was recently found to be inadmissible (R. v. Hoggard, 2024 ONCA 613). That case decided in August, depended in large part on the acceptance of an expert opinion on the credibility of a complainant in a sexual assault trial of Jacob Hoggard. Although an error was found, the Court of Appeal applied the curative proviso to maintain the conviction.

However, Justice Fairburn distinguished the facts in Hoggard from those in the Nygard case. Expert opinion in Nygard was not central to the prosecution’s case. In weighing reviewability with enforceability and finding that the grounds of appeal do not surpass the “not frivolous” standard, it is in the public interest to refuse to direct a panel review.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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