R. v. Nygard

R. v. Nygard Collection Decisions of the Court of Appeal Date 2024-10-07 Neutral citation 2024 ONCA 744 Docket numbers COA-24-CR-0928, M55396 Judges Madsen, Lene Subject Criminal Decision Content WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4 or 486.6 of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order; (b) on application made by the victim, the prosecutor or any such witness, make the order; and (c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; (b) on application of the victim or the prosecutor, make the order; and (c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it. (3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall (a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order; (b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and (c) in any event, advise the prosecutor of their duty under subsection (3.2). (3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have (a) informed the witnesses and the victim who are the subject of the order of its existence; (b) determined whether they wish to be the subject of the order; and (4) An order made under this section does not apply in either of the following circumstances: (a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person. (5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness. 486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor, (a) the person knowingly failed to comply with the order; (b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and (c) a warning to the individual is not appropriate. (2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Nygard, 2024 ONCA 744 DATE: 20241007 DOCKET: M55396 (COA-24-CR-0928) Madsen J.A. (Motions Judge) BETWEEN His Majesty the King Respondent and Peter Nygard Appellant/Applicant Alan D. Gold, for the appellant Emily Marrocco, for the respondent Heard: October 2, 2024 ENDORSEMENT [1] On November 23, 2023, following a lengthy jury trial, the applicant was convicted of sexual assault in relation to four complainants, K.R., N.G., M.N., and K.H. He was acquitted of sexual assault in relation to R.M., and of forcible confinement in relation to N.G. [2] Following a two-day sentencing hearing, for reasons set out comprehensively by Goldstein J., the applicant was sentenced to a global sentence of 11 years. After credit for pre-trial custody, he was left with 6.7 years remaining of the sentence. The applicant is currently in custody in the Toronto South Detention Centre. [3] The applicant appeals his convictions and seeks leave to appeal the sentence. He seeks a stay of proceedings, or, alternately, an order for a new trial and a reduction of the sentence. He has applied for bail pending determination of the appeal pursuant to s. 679 of the Criminal Code, R.S.C. 1985, c. C-46. [4] For the reasons below, the application for bail is dismissed. I. Brief Background [5] The applicant is 83 years old. He grew up in a family of modest means in Manitoba and became a successful and wealthy entrepreneur in the fashion industry. He had residences in Toronto, Manitoba, California, and the Bahamas. The current extent of his wealth is uncertain. [6] The sexual assaults for which the applicant was convicted in this proceeding took place between 1988 and 2005 in the applicant’s private apartment within a commercial building that he owned in Toronto. The applicant penetrated three of the complainants with his penis and one complainant digitally, in what the sentencing judge described as violent and degrading assaults which had devastating effects on the victims—“effects felt over many years.” The youngest complainant, M.N., was 16 years old at the time of the sexual assault. [7] The applicant faces numerous other charges. The Minister of Justice has ordered his surrender under the Extradition Act, S.C. 1999, c. 18, to stand trial on nine charges in New York, including conspiracy to commit sex trafficking, sex trafficking, and transportation for the purpose of prostitution between 2007 and as recently as 2019.[1] His application for judicial review of the Minister’s decision was dismissed by the Manitoba Court of Appeal and he is currently seeking an extension of time to seek leave to appeal to the Supreme Court of Canada in relation to that decision. He has been denied bail at every stage of that proceeding. In addition, the applicant is currently facing further charges in Montreal for alleged sexual assault and forcible confinement in 1997; and a charge in Winnipeg for alleged sexual assault and forcible confinement in 1993. He has not applied for bail in relation to those charges. [8] The applicant states that if he is granted judicial release in this matter, he intends to seek release in the matter under the Extradition Act, as well as the proceedings in Montreal and Winnipeg. His counsel stated in submissions that if successful in this application, an application would proceed in Manitoba “as early as next week.” II. Grounds of Appeal [9] The applicant has set out several grounds of appeal, which can be briefly summarized as follows: a. the trial judge erred in admitting the evidence of Dr. Lori Haskell, a psychologist who testified about the neurobiology of trauma, based on the recent decision of this court, R. v. Hoggard, 2024 ONCA 613; b. the trial judge erred in admitting cross-count similar fact evidence; c. the trial judge erred in his instructions to the jury relevant to the complainants’ prior consistent statements in relation to the defense claims of fabrication; d. the trial judge invited the jury to infer that the applicant drugged two of the complainants before sexually assaulting them; and e. the sentence imposed by the trial judge was excessive and reflects errors in principle. [10] The applicant seeks to admit fresh evidence relating to his health circumstances. III. The Applicant’s Proposal for Release [11] The applicant’s proposal for release, as set out in his draft order, is that he will reside in Winnipeg in a property now owned by his employee, Greg Fenske, but purchased with the applicant’s resources. He and Mr. Fenske promise to pay $500,000[2] if the applicant breaches the release order and he will be subject to GPS monitoring using an ankle bracelet provided by SafeTracks. In addition, he will “report to relevant authorities each by telephone or video call.” (It is not clear if he means each day, each week, or some other frequency.) He also proposes a no-contact term in relation to the complainants, as well as several ancillary terms. [12] Mr. Fenske states in his brief affidavit that he will take the applicant to medical appointments. Affidavits of two proposed caregivers (not sureties) have been provided indicating that they will provide homecare including cooking, cleaning, administering medication, and will accompany the applicant to medical appointments. Both proposed caregivers state that they will install any required applications on their mobile devices in relation to the ankle monitoring. IV. Analysis (a) Prematurity [13] The Crown argues that this application is brought prematurely and this court ought to await the outcome of the applicant’s application before the Supreme Court of Canada in relation to the extradition matter. The Crown argues that if the application is dismissed, as is likely, the applicant will have no practical ability to secure his release. The Crown submits there is no prejudice to the applicant in awaiting that determination as he is also detained on that matter, as well as on the Winnipeg and Montreal charges. [14] I decline to treat this matter as premature on the basis of the practicalities asserted. (b) Applications for Bail Generally [15] Applications for bail are governed by s. 679(3) of the Criminal Code, which provides that a judge of this court may grant the appellant’s release pending the determination of the appeal where satisfied that: a) the appeal is not frivolous; b) the appellant will surrender into custody in accordance with the terms of the order; and c) the appellant’s detention is not necessary in the public interest. The onus is on the applicant on a balance of probabilities: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19. [16] Having been convicted, the applicant no longer benefits from the presumption of innocence: Oland, at para. 35. (i) The appeal is not frivolous [17] An appeal is not frivolous if it presents an arguable issue. The Supreme Court of Canada instructs that this is a very low bar: Oland, at para. 20; R. v. Manasseri, 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38. [18] The applicant asserts that the case on appeal is “very strong.” The Crown concedes that at least in relation to the issue regarding the expert evidence of Dr. Haskell, the appeal is not frivolous, but argues that the merits are nevertheless weak. [19] In light of this court’s recent decision in Hoggard, I am satisfied that this appeal is not frivolous. (ii) The applicant has not established that he will surrender himself into custody [20] In assessing whether a proposed release plan will reassure the court that the accused will not flee and will surrender himself into custody when required, I consider, inter alia, the circumstances of the applicant under the proposed release terms and the suitability of the proposed surety. Applicant’s Circumstances [21] The applicant argues that he is not a flight risk and that he will surrender himself into custody. He states that he is a frail and elderly man, who has presented a detailed plan regarding his residence and circumstances pending the hearing of the appeal. His counsel asserts that he is “barely ambulatory,” and suffering from deteriorating health, such that he is “not really capable of significant movement or travel.” He states that there is no evidence that he has attempted to avoid criminal prosecution. [22] The applicant’s counsel also asserts that the applicant’s previous unsuccessful release applications, rendered when he was entitled to the presumption of innocence, have limited application in their “unfavourable respects” due to the passage of time, the applicant’s health, and the completion of this trial. [23] I do not agree. The applicant’s incentive to flee has increased with his convictions in this matter and must be considered in the context of the multiplicity of additional serious charges he faces in Canada and the United States. Cumulatively, if convicted in relation to the other matters, the applicant faces a lengthy period of incarceration. Though the applicant is presumed innocent of the additional charges, his potential jeopardy has increased, which, on the facts of this case, enhances flight risk. [24] There is a documented history of non-compliance by the applicant with court orders in the Bahamas.[3] [25] Further, the applicant appears, although the extent is uncertain, to have access to significant resources.[4] He does not suggest that he has current family or other ties to the Winnipeg community in which he proposes to reside. He does not propose to relinquish his passport. It is unclear what his current links are to that municipality other than the property of which he is the beneficial owner. To be successful at this stage of the analysis, the applicant must be prepared to demonstrate sufficient roots in the community: see eg. R. v. Mah, 2014 SKCA 26, at para. 12; R. v. M. (A.), 2012 NCLA 49, at para. 20. Proposed Surety [26] A functional approach to identifying a suitable surety emphasizes that: the proposed surety be a person of good character to whom the duties of surety may be entrusted; the person has meaningful links to the applicant; the proposed surety has the ability and authority to discharge the obligations and exercise the powers of a surety; and the individual has the financial resources sufficient to meet any monetary conditions of the release order: Gary Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2024), at s. 7:10; R. v. Moazami, 2019 BCCA 226, at para. 31, citing R. v. Patko, 2005 BCCA 183, 197 C.C.C. (3d) 192 (B.C. C.A.), at para. 22. [27] The applicant proposes to reside in the property currently occupied by Mr. Fenske and his family but beneficially owned by the applicant. Mr. Fenske proposes to pay $500,000 if the applicant breaches his bail, secured by the value of the home in which he resides. Mr. Fenske is an employee of the applicant who has previously been dishonest with the Manitoba Court of King’s Bench about the provenance of the funds used to purchase that property. He has been found to be evasive, not credible, and unwilling to follow court orders.[5] Mr. Fenske’s statements in support of this application cannot be relied upon. Further, Mr. Fenske has now acknowledged that he is only the “nominal” owner of the property. The funds being put at risk are not his, but in fact belong to the applicant. [28] In my view, in all of the circumstances, the applicant poses a flight risk if released and cannot be trusted to surrender into custody when required. (iii) The applicant’s detention is necessary in the public interest [29] Courts have instructed that there are two components to the public interest requirement: public safety and public confidence in the administration of justice: Oland, at para. 23, citing R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont C.A.), at pp. 47-48. (a) Public Safety [30] Public safety concerns the protection and safety of the public if the applicant is released pending the hearing of the appeal. To be denied bail based on public safety considerations, an applicant must: (1) pose a “substantial likelihood” of committing an offence or interfering with the administration of justice; (2) the “substantial likelihood” must endanger the “protection of the public”; and (3) the individual’s detention must be “necessary” for public safety: R. v. Abdullahi, 2020 ONCA 350, 150 O.R. (3d) 790, at para. 19, citing R. v. Morales, [1992] 3 S.C.R. 711, at p. 737. [31] The Crown does not pursue the public safety argument. (b) Public Confidence [32] The second component – public confidence in the administration of justice – is the focus of the Crown’s argument. This component requires a weighing of society’s interest in the immediate enforcement of criminal judgments, known as the “enforceability interest”, against society’s interest in the reviewability of judgments for error, known as the “reviewability interest”. The latter reflects society’s acknowledgment that our justice system is not infallible and those who challenge the legality of their convictions should be entitled to a review process: Oland, at para. 25, citing Farinacci, at pp. 47-49. [33] In Oland, the Supreme Court of Canada held that the factors set out in s. 515(10) with respect to assessing whether bail pending trial is justified are also instructive in the bail pending appeal context when considering public confidence in the administration of justice: Oland, at paras. 31-33. Per Oland, at paras. 31-32, factors for consideration include: (1) the strength of the prosecution’s case, measured through the grounds of appeal; (2) the gravity of the offences; (3) the circumstances surrounding the commission of the offences; and (4) whether the accused is liable for a lengthy term of incarceration. [34] The stronger the appeal, the more likely it is that the reviewability interest will overcome the enforcement interest: R. v. J.P., 2024 ONCA 700, at para. 13; Oland, at paras. 43-44. At the same time, the more serious the crime, the greater the risk that the public’s confidence in the administration of justice will be undermined if the person convicted is released on bail pending appeal: R. v. T.M., 2022 ONCA 46, at para. 28; R. v. T.S.D., 2020 ONCA 773, at para. 52; Oland, at para. 37. [35] Any consideration of the strength of the grounds of appeal at the bail application stage is preliminary only. At issue is the “legal plausibility” of the grounds of appeal and their foundation in the record: R. v. Ruthowsky, 2018 ONCA 552, at para. 15. This court will assess whether the grounds of appeal clearly surpass the minimal standard required to meet the “not frivolous” standard: Oland, at paras. 44-45. [36] In my view, only one argument raised by the applicant on appeal is “legally plausible” and “clearly surpasses” the “not frivolous” standard; namely that the trial judge erred in admitting the expert evidence of Dr. Haskell regarding the neurobiology of trauma. The trial judge did not, during the trial, have the benefit of Benotto J.A.’s decision in Hoggard, in which she held that expert evidence to assist in understanding myths and stereotypes is not necessary and that a jury instruction would provide the necessary guidance. The evidence admitted in the applicant’s trial appears to have been similar to that admitted at trial in Hoggard. The Crown argues that the circumstances in this case were different, as the question was not whether the complainants consented but whether the events took place at all, and Dr. Haskell’s evidence might have been helpful on the issue of a complainant’s “scrambled memory”. Further, the Crown points out that Dr. Haskell testified first in this lengthy trial, and neither the Crown nor the defense referred to the evidence in their closing statements, such that it was not emphasized in any way. I note that in Hoggard the appeal to this court was nevertheless unsuccessful as the trial decision was upheld under the curative proviso. Nevertheless, this is an arguable ground of appeal. [37] The balance of the remaining grounds of appeal, which I discuss briefly below, do not “clearly surpass” the “not frivolous” standard set out on Oland, and at least two of the arguments may not even pass the threshold. The appeal is, in my view, a weak appeal, notwithstanding the presence of one arguable issue. [38] Cross-count similar fact evidence: The applicant argues that the trial judge erred in admitting cross-count similar fact evidence, suggesting in oral submissions before this court that the only similarities were that the accused was the same person. This argument is weak. The trial judge gave detailed reasons for granting the similar fact application in which he set out in detail the evidence of each complainant, comprehensively setting out seven important similarities in the evidence of the complainants which “tipped the balance in favour of admitting the evidence.” The jury instructions fairly set out both the similarities and dissimilarities of that evidence, instructed the jury on the permissible uses, as well as regarding alleged tainting or collusion. It was open to the trial judge to find that the probative value of the similar fact evidence outweighed the prejudicial effect and that ruling of the trial judge is entitled to significant deference on appeal: R. v. Wright, 2024 ONCA 310, at para. 23. [39] Prior Consistent Statements and Recent Fabrication: The applicant argues that the trial judge erred in his instructions to the jury regarding the prior consistent statements of the complainants. The trial judge found that those statements were admissible to rebut claims of recent fabrication. I see no error in his instruction to the jury that the prior disclosures could be used only in assessing the defense claim that they had recently fabricated their allegations. Again, this argument on appeal is weak, at best. [40] Allegation of Drugging: The applicant argues that the trial judge invited the jury to infer that the applicant drugged two of the complainants before sexually assaulting them. Two complainants testified that they had drinks in the apartment before the assaults. R.M. testified that she blacked out and woke up to find the applicant subjecting her to sexual intercourse. M.N. testified that she felt effects of the drink and ended up vomiting in the bathroom. In response to the Crown’s suggestion in closing argument that there was opportunity for the applicant to spike their drinks, the trial judge instructed the jury: “It is up to you to decide if [the applicant] did have that opportunity but I must tell you that the evidence supporting that assertion is thin…” [emphasis added]. The trial judge emphasized that the applicant had not been cross examined on this and told the jury not to speculate about what he might have said if asked. The applicant was in fact acquitted of the charges as they related to R.M. In my view, this argument is frivolous. [41] The Sentence Appeal: Finally, the sentence appeal, in my view, is manifestly frivolous. Sentencing decisions are owed significant deference are reviewable only where they can be shown to be demonstrably unfit or the sentencing judge made an error in principle: R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at paras. 25-26; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 41 and 44. No specific error in principle is alleged. The sentence is not demonstrably unfit. The trial judge applied the relevant factors and carefully considered the mitigating and aggravating circumstances. Applying the totality principle, the trial judge discounted the sentence to 11 years, leaving 6.7 years to serve. [42] In relation to the sentence appeal, the applicant has tendered two recent medical reports of Dr. Leslie Goldenberg, who states that the applicant has significant health needs that cannot be adequately met in prison. I have some difficulty with that evidence. First, in the Reasons for Sentence, the trial judge extensively considered the applicant’s age, presenting health issues, and the ability of prison authorities to meet his medical needs. He found that the applicant has received special treatment, spending most of his time in the infirmary; that there was no specific evidence that the correctional authorities could not meet his medical needs; and that there was a degree of “exaggeration and malingering” on the applicant’s part. He noted that during cross-examination, the applicant showed no obvious signs of fatigue, but once convicted “he appeared to have suffered a shocking deterioration.” The trial judge was skeptical of the true depth of the applicant’s health problems. He stated that given his advanced age, “[the applicant] will obviously continue to deteriorate, jail or no jail. He is paying the same bill that every one of us must eventually pay.” [43] The new medical reports rely heavily on the applicant’s self-reports. Dr. Goldenberg states that there is a range of testing that the applicant requires and expresses the opinion that the applicant needs to be released for his medical needs to be addressed. In my view, the health needs of the applicant were squarely before the sentencing judge and were fully and comprehensively considered. The new reports do not auger in favour either of the reviewability of the sentence, or of release pending appeal in the circumstances of this case. [44] In sum, in terms of the reviewability interest, while the admission of the expert evidence at trial is an arguable ground of appeal, overall, on the current record, this appeal appears weak. [45] As indicated in Oland, in addressing the public interest portion of the test, ultimately appellate judges draw on their legal experience in evaluating the factors that inform public confidence, including the strength of the grounds of appeal, the seriousness of the offence, and the flight risks: Oland, at para. 47. Public confidence is measured through the eyes of a reasonable member of the public, a person who is thoughtful, dispassionate, informed of the circumstances of the case, and respectful of society’s fundamental values: R. v. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 75-80. [46] In my view, in this case, public confidence in the administration of justice would be undermined by the release of the applicant pending the hearing of this appeal. [47] The applicant was convicted of four violent and degrading penetrative sexual assaults which the trial judge found have had profound impacts on the complainants. Aggravating factors included the intentional humiliation of each complainant and the young age of M.N. at the time of the assault. The applicant was found to have used his power, wealth, and status to prey upon young women. The applicant has presented a weak plan for release, faces charges internationally, and presents a flight risk. [48] Given the significant enforceability issues and my view of the limited arguable issues on this appeal, I find that the balance tips in favour of enforceability. In reaching this conclusion, I have considered the length of the sentence and the possibility of a successful appeal. However, weighing the factors, I have determined that the confidence of the public in the administration of justice would be undermined by release of the applicant pending appeal. [49] The application for bail pending appeal is therefore dismissed. “L. Madsen J.A.” [1] R. v. Nygard, 2022 ONCJ 20, at para. 10. [2] Counsel stated in oral submissions that $1,000,000 is available as security; however, the draft order indicates $500,000. [3] R. v. Nygard, 2022 ONCJ 20, at para. 18. [4] R. v. Nygard, 2022 ONCJ 20, at paras. 19-20; United States v. Nygard, 2021 MBQB 27, at para. 35. [5] United States of America v. Nygard, 2021 MBQB 27, at paras. 32-38.