A judge has reserved her ruling in former fashion mogul Peter Nygard’s appeal of an earlier decision denying him bail, following his arrest on allegations of racketeering and sex offences.
Manitoba Court of Appeals Justice Jennifer Pfuetzner withheld her decision after hearing arguments virtually Thursday from Nygard’s defence team, which wants him released from Headingley Correctional Facility, just outside of Winnipeg.
Another judge rejected Nygard’s bail request last month.
The 79-year-old was arrested in mid-December on numerous charges filed by a Southern District of New York court, including racketeering and sex trafficking. He faces the possibility of extradition to the U.S.
No allegations have been proven in court.
Nygard’s condition has worsened considerably since he was taken into custody, his doctor said in an affidavit filed as part of the bail application.
On Thursday, one of Nygard’s lawyers, Brian Greenspan, told court Nygard remains at risk of severe health outcomes, including those due to COVID-19, if he remains in jail. There are currently no known active cases of the illness in Headingley.
In February, Manitoba Court of Queen’s Bench Justice Shawn Greenberg acknowledged Nygard’s health risks, but ultimately denied bail. She wasn’t satisfied that a bail plan tabled by Nygard’s lawyers would keep him or an associate from contacting victims or witnesses.
Greenspan said there has to be a “substantial” likelihood of tampering with witnesses, not just a possibility, to justify keeping Nygard behind bars.
He also argued there have been material changes in the case since Justice Greenberg’s decision, and accused U.S. prosecutors of overreach and “inflammatory” rhetoric that has “fuelled a media frenzy.”
Greenspan said the number and nature of allegations that appeared in a provisional arrest request along with bail letters authored by U.S. prosecutors, which influenced Greenberg’s decision, were not entirely reflected in a subsequent record of the case that’s since been filed.
The previous two documents contained details of offences and allegations that spanned 25 years, and included charges of racketeering, sex trafficking conspiracy, sex trafficking, transportation of a minor for prostitution, and transportation for prostitution.
U.S. authorities made a formal extradition request in February.
Canada’s Minister of Justice issued an authority to proceed — which authorizes an extradition hearing, and is the first step in the extradition process — but did so based only on the sex trafficking offence, which is punishable by up to 14 years in prison.
Greenspan suggested that weakens the extradition case and argument against granting bail.
The defence team previously put forward a bail plan that would have seen Nygard confined to his Winnipeg home with surveillance systems and sureties in place to monitor him and the property.
Court heard they’ve since tweaked the plan to include a variety of electronic monitors and technological checks and balances.
Greenspan said the likelihood of Nygard communicating with anyone undetected would be mitigated by a camera surveillance system and other measures that would allow third-party surveillance of his calls, texts, emails and internet use.
‘It’s the same case’
Scott Farlinger, a lawyer representing the attorney general of Canada, said none of that would stop Nygard from instructing others to act on his behalf.
Farlinger said the defence has tried to recast the nature of the allegations and extradition request.
He said in allowing the extradition hearing process to move ahead, Canada’s justice minister assessed evidence in the case and totality of Nygard’s conduct, and found evidence of control and influence of victim movements, along with evidence of exploitation, sexual and physical assault, and confinement that could cause a person to fear for their safety.
There is no requirement for U.S. authorities to show all their cards at this stage in the extradition process, which can be based on conduct of an accused, said Farlinger.
He said bail letters and provisional arrest requests are often accepted without controversy in the beginning stages of extradition hearings.
Farlinger also pointed to summaries of evidence in those documents from six accusers that describe Nygard’s conduct, including allegations he took a minor to a swingers’ club in New York where he directed her to have sex with other men, and an allegation by a woman who said she was drugged and sexually assaulted by Nygard and five other men.
He stood by Justice Greenberg’s original decision to reject bail on the grounds that she felt Nygard was likely to tamper with witnesses. He expects Justice Pfuetzner to arrive at the same decision as Justice Greenberg.
“It’s the same case,” he said.
Publication ban on victims
Farlinger sought a publication ban on identifying the names of accusers and witnesses in affidavits that are now part of the proceedings. U.S. authorities were concerned revealing identities could impair investigations south of the border.
Justice Pfuetzner granted Farlinger’s request for a ban on identifying the women who have made allegations against Nygard. Sean Moreman, a lawyer representing CBC, sought approval on behalf of the public broadcaster to publish names of witnesses.
Pfuetzner denied that request on an interim basis and is expected to revisit the decision.