Why bail appeal was denied for 92-year-old Nygard

Law360 Canada (October 10, 2024, 11:08 AM EDT) --

John L. Hill

Peter Nygard was convicted on Nov. 23, 2023, of sexually assaulting four complainants. He was sentenced to 11 years but given credit for pretrial custody, leaving 6.7 years of imprisonment yet to be served. Nygard’s application to be released from the Toronto South Detention Centre pending his appeal was heard by a single Ontario Court of Appeal judge, Justice Lene Madsen, on Oct. 2, 2024. The decision was handed down on Oct. 7 (R. v. Nygard, 2024 ONCA 744).

The decision to deny appeal bail became a significant public conversation topic. I received this email from a woman in my home community: “Is the criminal justice system insane? Just let him pay off all the women who are accusing him and let him go — I can’t imagine that a 92-year-old man could do much damage to anyone at this stage! What a joke and waste of time.”

Although Nygard grew up in Manitoba in a family of modest means, he became a wealthy entrepreneur in the fashion industry. His wealth allowed him to have homes in Toronto, Manitoba, California and the Bahamas.

His wealth and fame resulted in significant public interest when he was convicted of sexual assaults between 1988 and 2005 found to have occurred in a Toronto commercial building he owned. He was also ordered extradited to face sex trafficking charges that allegedly took place in New York between 2007 and 2019. The extradition order has been appealed to the Supreme Court of Canada.

Nygard’s release plan would have him live in Winnipeg on a property supposedly owned by his employee, Greg Fenske, which Fenske purchased with funds from Nygard. Nygard would agree to reporting conditions and a no-contact order with the complainants. Fenske would care for him, taking him to medical appointments and hiring staff to meet his household needs. Fenske would agree to post a $500,000 bond should he breach bail conditions. Nygard did not offer to surrender his passport.

Section 679(3) of the Criminal Code establishes three criteria that must be met for an applicant to be granted appeal bail: (a) the appeal is not frivolous, (b) the appellant will surrender into custody as required and (3) the detention is not necessary for the public interest. It is up to the applicant to satisfy the court of these requirements on the balance of probabilities (R. v. Oland, 2017 SCC 17).

The Crown conceded that the appeal was not frivolous, given the very low bar to establish (R. v. Manasseri, 2013 ONCA 647). Nygard’s counsel argued he was not a flight risk. He has presented a detailed plan for residential accommodation. Nygard is suffering from deteriorating health and is “barely ambulatory.”

Justice Madsen found this argument on flight risk unconvincing. His incentive to abscond is heightened now that he has been convicted and faces multiple charges abroad. He has a record of non-compliance with Bahamian court orders (R. v. Nygard, 2022 ONCJ 20). He has access to significant financial resources (United States v. Nygard, 2021 MBQB 27).

With no family, he cannot demonstrate sufficient roots in the community (R. v. Mah, 2014 SKCA 26). Moreover, his proposed surety, Greg Fenske, was found to be evasive, not credible and unwilling to follow court orders in the USA v. Nygard case cited above. Fenske cannot be seen as a person of good character who will discharge his obligations as a surety and has the financial resources to meet the monetary conditions of a release order (R. v. Patko, 2005 BCCA 183). Fenske’s ownership of property bought with Nygard’s money seems dubious.

Nygard also failed to convince the court that his release would not jeopardize public confidence in the administration of justice (the Crown conceded that Nygard was not a risk to public safety). Public confidence in the justice system will be undermined when a serious crime is committed, and the offender is released. The more serious the crime, the greater the risk of losing public confidence. In this case, the potential grounds for appeal do not clearly surpass the “not frivolous” test established in the Oland decision.

Given the issues involved in enforcing a release order, the very serious nature of the charges, the substantial flight risk, and the limited arguable issues on an appeal, Justice Madsen determined that granting a release order would undermine public confidence in the administration of justice.

With public confidence being central to the decision, how can this be reconciled with my correspondent denouncing the sanity of the legal system when a frail old man is kept incarcerated? Perhaps the answer is that while this decision is sound, it does not resolve the distinction between public safety and enforceability. The judgment sets out the rationale for continued detention. However, press coverage of the continued detention paints the picture of an older man in ill health being locked away. Perhaps our criticism is not about the law but how popular media covers the story.

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.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.