COURT FILE NO.: CR-22-10000493-0000 DATE: 20240801

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – PETER NYGARD

Counsel: Ana Serban and Neville Golwalla, for the Crown Michelle Biddulph and Brian Greenspan, for Peter Nygard, Applicant

HEARD: November 6, 2023

RESTRICTION ON PUBLICATION: Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.

RULING ON COUNT-TO-COUNT SIMILAR FACT APPLICATION

R.F. GOLDSTEIN J.

[1] Peter Nygard was initially indicted that charged eight counts of sexual assault and three counts of forcible confinement in relation to eight complainants. The Crown did not proceed in relation to three of the complainants. Mr. Nygard was therefore tried before a jury on five counts of sexual assault and one count of unlawful confinement in relation to five complainants. He was acquitted of one count of sexual assault and the count of forcible confinement; he was therefore convicted of four counts of sexual assault.

[2] Prior to arraignment, the Crown brought an application to adduce similar fact evidence. In reality, it was two applications:

• A pre-trial application to adduce the evidence of S.R., who was not a complainant on the indictment; and,
• A count-to-count similar fact application in relation to the five complainants left on the indictment.

[3] I granted the pre-trial similar fact application in relation to the evidence of S.R.: R. v. Nygard, 2023 ONSC 4416. The Crown elected not to call that evidence at trial.

[4] All counsel agreed that, in the usual fashion, the count-to-count similar fact application would be determined during the pre-charge conference. I granted the application with reasons to follow. What follows are my reasons.

BACKGROUND

[5] The Crown theory was that Mr. Nygard used his wealth, power, and position to sexually assault women in his bedroom at 1 Niagara Street, his corporate headquarters. The jury heard evidence in relation to the five complainants over the course of several weeks. In my charge to the jury, I set out the evidence in relation to each of the complainants, as well as the defence evidence. The following includes some of the evidence that I summarized in my jury charge:

The Evidence In Relation To N.G.:

[6] Mr. Nygard was charged with one count of sexual assault and one count of unlawful confinement in relation to N.G.

[7] In 1987 or 1988 N.G. met Peter Nygard at a popular nightclub in Gatineau called Chez Henri. She knew who he was and recognized him. She was aware that he was a famous and successful fashion designer. She and Mr. Nygard spoke for a few moments, and she told him she was in fashion. He asked for N.G.’s number and told her he was sure he could help her. She would have been 20 or 21 at the time. She was the host of a CBC children’s television show and an aspiring fashion designer.

[8] In March 1989 N.G. travelled to Los Angeles for four days on a press junket in relation to her CBC show. While she was in Los Angeles her mother called her from Ottawa. Her mother told her that Mr. Nygard had called the family home and wanted her to come to Toronto to meet him. She then called Mr. Nygard. They had a brief chat and he told her she would come to Toronto, see the office, and they would talk. Either the next day or the day after N.G. flew to Toronto. She stayed at a hotel that was close to Mr. Nygard’s office at 1 Niagara Street. He booked the hotel. They met at a little bar at 6:00 pm that was a one or two minute walk to 1 Niagara Street. She had a drink. Mr. Nygard ordered oysters, which she did not like. Mr. Nygard commented that oysters are an aphrodisiac. He also said that eating oysters are like having a vagina in your mouth. She was shocked and uncomfortable. She felt it was a very inappropriate comment and did not respond. She kept trying to steer the conversation back to fashion, but he kept making sexualized comments. She was polite but tried to deflect. She did not leave even though it was uncomfortable because she wanted to pursue a possible business relationship or obtain business ideas. She was not flattered that Mr. Nygard thought she was attractive.

[9] Mr. Nygard did not recall ever meeting N.G. He did not eat raw oysters. The only time he ever ate oysters was when they were cooked at Wolfgang Puck’s restaurant in Santa Monica. He recalled a restaurant that he frequented near his office but could not recall the name. He testified that he would not have told a woman at a restaurant that eating an oyster feels like having a vagina in your mouth.

[10] N.G. testified that after about an hour at the bar, Mr. Nygard paid the bill, and they went to his office building. She recalled going through the garage and seeing a very fancy car. She could not remember how she got from the bar to Mr. Nygard’s office. N.G. testified that at one point while they were in the building they were facing a wall when Mr. Nygard turned his back. It felt like he was doing something, perhaps adjusting the temperature. The wall was a flat white. It then slid open. She was surprised. She felt that they were high up in the building. The door disappeared into a pocket. She did not realize it was a door, because it felt like a blank wall and then suddenly opened. When N.G. entered the room she could see a king-sized bed, with a leopard print bedspread. The lighting was dim. She also did not see a handle on the door. N.G. noticed a jacuzzi made of what appeared to be stone. There were also two red leather mini-dresses hanging above the jacuzzi. On the wall were photo compilations of Mr. Nygard with famous people, as well a photo or photos with his daughter. There were several television monitors showing a promotional reel of Mr. Nygard. There was also a small bar in the room facing the bed. Mr. Nygard then made her a drink. N.G. was sitting on the bed when the monitors switched to pornography. She found that disturbing because she had never seen pornography before. The pornography was of an older man going down on a young woman. He said, “I’m going to do that to you later.” She could not recall her response but testified that she said something in the negative.

[11] N.G. testified that while she was sitting on the bed Mr. Nygard lunged at her and managed to lie her down on the bed. She was quickly pinned down. She was wearing a big baggy pink t-shirt, baggy pants, sneakers, and Mickey Mouse suspenders. She had worn that outfit to look like a big kid as she thought they would be talking about children’s clothing. Mr. Nygard managed to get the lower half of her clothing off. She was only wearing her bra and t-shirt. He kept asking her “why aren’t you cooperating?” N.G. testified that after Mr. Nygard got himself naked, he started performing oral sex on her. She kept saying “no, no.” He was very burly and strong. He had no problem holding her down. He then turned her over and put her on all fours. He put his mouth on her anus. She tried to make it difficult for him. Then he put a finger in her anus. She said “no”. He then berated her for not cooperating, telling her: “why don’t you let me do this” and noting that other girls let him do it, including a famous person he mentioned. He was getting angrier and angrier. He then tried to penetrate her anus with his penis. It entered a little bit. She kept trying to move to reject him and he became angry and frustrated and turned her over. He put his penis inside her vagina and started to say, “your mom would be ashamed of you” and said, “you’re a young woman acting like a silly girl”.

[12] N.G. further testified in chief that before he inserted his penis into her vagina, she said “what about AIDS”. He said, “I don’t worry about you”. N.G. replied, “what about you?” Mr. Nygard put on a condom and began to have sexual intercourse with her very forcefully and aggressively. He let out a loud roar. She assumed he ejaculated.

[13] N.G. testified that after Mr. Nygard ejaculated, she was effectively frozen. She could not move. She felt she was a prisoner as there was no way out. She asked him to let her out and he would not. He got angry and told her that she was going to stay. They would have sex again in two hours. She would become his girlfriend and stay with him at Marina Del Rey and meet his neighbours. She wanted to leave but there was no way to get out as there was no door handle and she was frightened that he could push her out of the open space. Finally, he got frustrated and did something to the phone. The wall opened again, and she left.

[14] Mr. Nygard testified that he did not lunge at N.G. while she was seated on the bed because it was not the sort of thing he would have done. He denied sexually assaulting her. He denied having a conversation with her about her becoming his girlfriend.

[15] After she arrived home in Ottawa, N.G. told her mother what happened. Her mother advised her not to go to the police. She said that Mr. Nygard was a wealthy and powerful man with big money lawyers who would simply ruin her. She decided not to go to the police. In 2020, however, she came forward after Mr. Nygard’s arrest.

[16] N.G. is not part of the class action lawsuit in the United States. She did not come forward previously because she was frightened over the years and feared retaliation. She came forward after Mr. Nygard’s arrest in February 2020. She had moved to Los Angeles. The Los Angeles rape treatment centre referred N.G. to a lawyer. She subsequently gave a statement to the Los Angeles Police.

[17] The jury convicted Mr. Nygard of sexual assault and acquitted him of unlawful confinement.

The Evidence In Relation To R.M.

[18] Mr. Nygard was charged with one count of sexual assault in relation to R.M. Although the jury acquitted Mr. Nygard in on that count, R.M.’s evidence was part of my similar fact instruction to the jury. Accordingly, I will summarize some of the key points of her evidence.

[19] R.M. testified that in 1996 she was living in downtown Toronto. She worked as a professional celebrity hostess. She met Mr. Nygard on an airplane returning from the Turks and Caicos in March 1996. She had been in the Turks and Caicos with her boss for a photo shoot. Mr. Nygard approached and introduced himself. She and her boss were invited to Mr. Nygard’s place in The Bahamas for dinner. At dinner there was a television with VHS tapes playing promotions of Mr. Nygard, including his fashion shows and his accomplishments. At the dinner she learned that Mr. Nygard was in the fashion business. She met his girlfriend, D.L..

[20] After dinner R.M. helped the butler carry drinks to the grotto. She described the grotto as a cave with water. There was a sexual orgy taking place with some 25 people. R.M. testified that she went to a New Year’s Eve Party at Mr. Nygard’s place in The Bahamas in 1996. Mr. Nygard recalled R.M.. He met her at a New Year’s Eve party in The Bahamas in 1997. He testified that R.M. did come to The Bahamas for about four or five years after 1997.

[21] Mr. Nygard testified that D.L.was his girlfriend in the 1990’s.

[22] R.M. testified that Mr. Nygard called her not long after the Bahamas trip and asked her to do some work for him. She assumed that her boss gave Mr. Nygard her number. He hired her to host a fashion show at Massey Hall. After the Massey Hall fashion show Mr. Nygard called and asked her to host a party at his office. When she arrived Darlyne, the woman R.M. believed was Mr. Nygard’s girlfriend, was there. It was the first time R.M. visited the building. There were about 20 people there. They were well-dressed and appeared as if they had come from a party. Although there was a glass elevator, she walked up three or four sets of stairs. A door popped open to another room. The door appeared to be one piece of glass but then it opened up into an apartment or bedroom. It had a mirror reflection. She described it as a wall of glass leading into the bedroom. It had a kind of swinging door. It just swiveled and opened when Mr. Nygard did something.

[23] R.M. described the bedroom. She remembered that the headboard was like the root of a tree. He had something like the root of a tree as his headboard in The Bahamas. People were taking off their clothes when she walked in. She wanted to be more relaxed, but she wanted to get out of there. Three televisions hung on the wall. The televisions were on. Pornography was playing on one television and CNN on another. She made two drinks for herself – vodka and cranberry. She was very uncomfortable and thought it would help. She has no memory after the second drink. She blacked out. When she woke up Mr. Nygard was on top of her, and she was naked on the bed. He had her pinned by the wrists and was thrusting his penis against her vagina. Mr. Nygard was having sexual intercourse with her. He was a large man. Everyone else in the room was watching. She said “no”. He let go of her wrists and re-adjusted his penis. He was naked. She felt that he was trying to put his penis inside her vagina, but he was too limp. She yelled at him as loud as she could. He got off her and started yelling and screaming that she had ruined the party. She got up, gathered her clothing, and went to the bathroom. She tried to find a door to get out but couldn’t find one. There was no handle where she had come in and she could not figure out how to get out.

[24] Mr. Nygard testified that this absolutely did not occur and he would not have engaged in such behaviour. D.L., Mr. Nygard’s girlfriend at the time, testified that she never saw R.M. in the private space at 1 Niagara Street and did not see Mr. Nygard engaged in sexual activity with R.M. She did testify that she witnessed group sex activities in The Bahamas and in Toronto at 1 Niagara Street.

[25] R.M. did not discuss the alleged sexual assault with anyone until 2020 when she became aware of the U.S. class action through an article in the Toronto Sun. She saw a second article two weeks later and it included the name of the class action lawyer in New York, Lisa Haba. R.M. contacted Ms. Haba. R.M. was referred to Shannon Moroney, her therapist, by a place in The Bahamas called Sanctuary, who gave her three names. She chose Ms. Moroney.

[26] The jury acquitted Mr. Nygard in relation to the sexual assault on R.M.

The evidence In Relation To K.R.

[27] Mr. Nygard was charged with one count of sexual assault in relation to K.R.

[28] K.R. is a trained theatre actress. She met Mr. Nygard in The Bahamas in the summer of 1989. She was on the tarmac at the airport waiting to get on the airplane to go home to Toronto. A man touched her back and said “it is a very nice colour” referring to her top. They chatted. It was Mr. Nygard. He said that he had owned property in The Bahamas, Manitoba, Los Angeles, and Toronto, and that he was a fashion designer. K.R. testified that she initially found him to be an attractive man. She did not know who he was. She was 27 or 28 at the time. He appeared to be in his 40’s. When they were in flight Mr. Nygard’s assistant invited her to come to business class, where he was seated, to chat. She agreed and went forward. They chatted and discussed fashion. He insisted that he would have his driver take her home when they landed. Mr. Nygard reconnected with her at the baggage area. His driver drove K.R., Mr. Nygard, and others to his building at 1 Niagara Street.

[29] In cross-examination, K.R. testified that Mr. Nygard offered her a tour of the building, and she accepted because she was intrigued. She assumed that his driver would take her home after the tour. She waited in a room where there were posters of Mr. Nygard and magazines featuring articles about him. After some time, Mr. Nygard got her and showed her the building. She thought it was an impressive building.

[30] She recalled some details about the building. There were five floors. There were aquariums between floors. There was a retractable glass roof on the top floor, a stage, and a glass elevator. He explained that he had designed the building.

[31] K.R. also saw Mr. Nygard’s private space. Mr. Nygard appeared to push a button in the secretarial area and the door opened. She did not recall him normally opening the door, only that it was activated by something other than a normal doorknob. She believed it opened into the room, but she could not truly remember. It felt like a cabin in the forest as shown in Architectural Digest. It had a large bathtub sculpted in rock, a large bed with fur, and a ceiling that she recalled was covered in wood. There was also a kitchenette. There were three televisions embedded in the wall facing the bed. The door into the private space on the fifth floor was a mirrored door that swung inwards. It was used to enter the room both times she was in the building. She recalled the place of the refrigerator and the televisions. She did not recall a handle on the door. She did recall a washroom area. She did not recall seeing a door that led from the washroom to the public space.

[32] K.R. testified that about a week later Mr. Nygard called and invited her for dinner. They went to dinner at a restaurant called Joso’s. They went to dinner a second time at an Italian restaurant on Church Street. He drove a very fancy car.

[33] Mr. Nygard did not recall meeting K.R. in the Bahamas in August 1989 or giving her a tour of 1 Niagara Street, including the private space, but it is possible he did. He did not recall exchanging numbers with K.R. but also agreed it was possible. He did not recall going for dinner with her. He did own a very fancy car called an Excalibur.

[34] A few months later Mr. Nygard, through his secretary, invited her to see the Rolling Stones at the Skydome (now the Rogers Centre). The evening of the concert she met Mr. Nygard and his group at an entrance to the Skydome. After the concert they were picked up by Mr. Nygard’s driver. Mr. Nygard told the driver that he would drive K.R. home. She and Mr. Nygard were dropped off on Niagara Street. He invited her to have a drink with him. She agreed to go. They took the elevator to his fifth-floor private space. The door was covered in a mirror. He pressed some kind of button and the door opened. It was a flush door, and you could not tell it was a door from the outside. They walked in and the door closed and locked behind them. There was no way to get out. There was no doorknob. There was a keypad of some kind in the bedroom. When Mr. Nygard pushed some buttons, the door opened. He told her the code but when she tried the keypad, however, it would not open. K.R. went to the kitchen and started making him a sandwich at his request. He then started to insult her and call her names. K.R. testified that he told her: “you’re wasting my time, you’re a cock tease”. She did not understand why he was so angry. He kept calling her names and saying demeaning things.

[35] K.R. testified that after Mr. Nygard started berating her s he tried to leave. He chased her around the room, and he grabbed her. He removed her clothing and pinned her down using his weight. He unzipped or unbuttoned his jeans while he was undressing her. He removed her clothing and pinned her down using his weight. He unzipped or unbuttoned his jeans while he was undressing her. K.R. testified that she felt she could do nothing, so she told Mr. Nygard to “at least put a fucking condom on.” After going and getting a condom, Mr. Nygard put it on and penetrated her vagina with his penis. She said he was like an animal. He ejaculated in the condom.

[36] After the assault, K.R. felt ashamed and embarrassed. She told her roommate, an articling student at the time, what happened. Her roommate advised her against going to the police. She said that her sexual history would be brought up, and she would be destroyed. It would be her word against a wealthy, well-established man who had resources and knew the prime minister. She went to the police in 1998 and gave a statement but ultimately decided not to go ahead with charges. She received a call from a police officer who warned her that Mr. Nygard’s head of security had flown in from Los Angeles to find out who had spoken to the police. She panicked and was afraid for her life.

[37] Susan Crone, a Toronto Police Detective, was the investigating officer who took K.R.’s 1998 statement. A man named Brian Evans had contacted her unit commander indicating that he was in Toronto from Winnipeg and had asked for an update. Mr. Evans was Mr. Nygard’s head of security. He had flown in from Winnipeg to Toronto. On August 13, 1998, at 12:50 pm, Detective Crone was waiting for an unrelated witness when the front desk clerk called and indicated that a Mr. Evans was there at police headquarters to see her. She indicated she was busy and did not meet with him. The next day August 14, 1998, she met again with her unit commander as well as the general counsel of the TPS, Jerry Wiley. The meeting was about the investigation into Mr. Nygard. On September 21, 1998, she called K.R. because Mr. Evans was in Toronto, and she wanted to make K.R. aware of that fact.

[38] Mr. Nygard denied taking K.R. to a Rolling Stones Concert and inviting her for a drink in his 1 Niagara Street property. He denied that he sexually assaulted K.R.

[39] Mr. Nygard testified that he only learned later that his lawyer sent a security person to Toronto to assist the investigation.

[40] K.R. was on a yoga retreat in Indonesia in 2020 and saw an article in the New York Times about Mr. Nygard. It referenced a lawsuit in the United States. She became involved in the class action lawsuit against Mr. Nygard. She googled the law firm and contacted it. She did speak to a lawyer named Lisa Haba, who told her that she could join the lawsuit. She did so. The class action lawyers had referred her to a therapist, Shannon Moroney. Ms. Moroney put her in touch again with the TPS in 2020.

[41] The jury convicted Mr. Nygard of sexual assault in relation to K.R.

The Evidence In Relation To M.N.

[42] Mr. Nygard was charged with one count of sexual assault in relation to M.N.

[43] M.N. was 16 in 2004-2005 when she met Mr. Nygard. She was dating an older man, O.M., who invited her to a party. He told her he met a fashion designer at a club. The party would be very elaborate. This fashion designer was very wealthy. M.N. picked out a special outfit for the party. She did not know of Mr. Nygard prior to meeting him. She did not know of Mr. Nygard’s products or fashion lines.

[44] M.N. and O.M. drove to downtown Toronto on a Friday or a Saturday. She expected a party with models. They parked nearby and went into the building. She thought that the building was impressive. It had a big lobby area, with glass, wood, trees, and a botanical feel. Mr. Nygard met them on the stairs inside the building with a woman. There was no party. Instead, Mr. Nygard took them on a tour of the building. They went upstairs into a back room. It had a bed, a bar, and windows. There was a bar, a big screen, a computer, and windows. She did not recall much conversation. She did recall Mr. Nygard describing the building.

[45] M.N. testified that as they went into the room, she did not recall anything about the door. The room they entered had dark colours and wood. She thought it was impressive from a design standpoint. They remained in the room. Mr. Nygard pulled out a bottle and wanted to talk about how old and expensive it was. He made drinks for everyone. He talked about himself and the things he owned. He also showed a picture of a jet he owned and invited M.N. and O.M. to come to The Bahamas on his plane.

[46] There was no mention of a party. M.N. thought that they were having a pre-party drink. The other woman moved to the bed and so M.N. followed her lead and moved to the bed as well. The men began to speak in a more sexual way. O.M. said to Mr. Nygard that he needed to see M.N.’s vagina. That scared her. Mr. Nygard said, “I have to see it.” He and O.M. started wrestling with her and she was pushing down her skirt. O.M. said “just let him”. She was saying no. Mr. Nygard’s hands were on her thighs, pulling on her skirt and O.M. was indicating that she should let him. She felt she didn’t have a choice. She felt dizzy, weak, and nervous. Mr. Nygard wrestled with her and pulled of her skirt and underwear while O.M. kept saying “just let him see it.” Mr. Nygard held one knee while O.M. held the other. They were looking at her vagina and commenting on it.

[47] Mr. Nygard began to perform cunnilingus on her. O.M. started to perform cunnilingus on the other woman. O.M. also made a racially insensitive comment about the other woman and said he didn’t want her. O.M. then put his penis in M.N.’s mouth. Mr. Nygard then told the other woman to suck on M.N.’s nipples, which she did. Mr. Nygard then penetrated M.N. vaginally with his penis.

[48] After it was over M.N. went to the bathroom and began to throw up. While she was in the bathroom Mr. Nygard came in and told her that the condom was still in her body. As he put it, it was because her “pussy was so tight”. She fished it out of her vagina and then continued to vomit. She knew that Mr. Nygard ejaculated because she could see semen in the condom.

[49] The other woman gave her some pills and some water. She also put a tissue in the pocket of her jacket. The tissue contained more pills. She took M.N. into the bathroom to fix her up as she was a mess and smelled like vomit. She did not know what the pills were. Later, M.N. became familiar with the emergency contraceptive pill Plan B. She came to understand that the pills given to her were Plan B contraceptive pills.

[50] Mr. Nygard testified he did not recognize M.N. when he saw her testifying. He did not recognize her picture when the TPS showed it to him. He did not know O.M. He did not recall meeting any man in his late 20’s or early 30’s and inviting him and a woman to 1 Niagara in late 2004 or early 2005. He said that the incident did not happen.

[51] M.N. did not go to the police after the sexual assault occurred. She said that it was difficult to rationalize what her 16-year-old self was thinking. She was somewhere she shouldn’t have been; she had lied to her parents; and the lies were stacking up. M.N. contacted the class action lawyers in the United States after she read an article in February 2020 on Yahoo News. She spoke to a private investigator who was gathering statements in relation to the class action. She was introduced to Shannon Moroney through the class action lawyers. She described Ms. Moroney as a trauma coach/counsellor. She agreed that Ms. Moroney encouraged her to make a statement to the police.

[52] She gave a statement to the TPS on January 8, 2021, although she did tell her boyfriend at the time and later an ex-husband.

[53] The jury convicted Mr. Nygard of sexual assault in relation to M.N.

The Evidence In Relation to K.H.

[54] Mr. Nygard was charged with one count of sexual assault in relation to K.H.

[55] K.H. testified that she met Peter Nygard on a flight to The Bahamas in 1988. She was seated in economy class, near the back of the airplane. K.H. was very excited because she had only ever been on an airplane once before. At that time passengers could take photographs of the cockpit. She did so. On the way back to her seat Mr. Nygard approached her and introduced himself. Mr. Nygard asked if she was a photographer or a model. She said no to both. He told her he liked her personality and wanted her to work for him. She told him she was a project coordinator for a hardware company and making good money. He said he was in the business of importing and exporting textiles for his businesses in Toronto and The Bahamas. He may have also mentioned New York or Florida. He said that she could be the import/export manager. He said she would be travelling. She did not think that he was making a bona fide job offer. She laughed it off. Mr. Nygard gave her a piece of paper with his Toronto number.

[56] After the trip to the Bahamas K.H. saw Mr. Nygard on television. It turned out that he was prominent in the fashion industry. She called him a week or two later. Mr. Nygard told her “let’s get together” and invited her to go to Finland for the weekend. She was surprised and said “no” but they made arrangements for her to call him back and attend at his office. He sent her flowers that day as well.

[57] On the day of the meeting K.H. went to the building. It was in the Fashion District in Toronto, near Front Street and a major intersection. She was wearing a blouse and a pencil skirt. She thought the building was not very tall, perhaps 7 or 8 stories. She met the receptionist, and then Mr. Nygard came down. Mr. Nygard asked K.H. if she wanted a tour, and she agreed. He then showed her around the building. She described the interior of the building as gorgeous. She noticed that there was a runway for fashion shows. She particularly noticed the retractable roof. At the time she worked for a company that was working on the Skydome, as it was then called. She was interested in the retractable roof. There was also an aquarium with Koi fish that a person could see looking down from the runway. She was thinking that it would be cool to work in that building.

[58] Mr. Nygard then went into his personal space. K.H. followed him. A door with a mirror swung open somehow. She did not see him open it. The room was darker. She saw a bed, a hot tub, and a shower. She was not expecting an apartment-like space. She was expecting an interview room or a professional office. She recalled that the shower was full glass and that Mr. Nygard said that he could see out, but people could not see in. He seemed very proud of the space.

[59] When K.H. entered Mr. Nygard’s private space she felt uncomfortable and tried to leave but Mr. Nygard tackled her, and they both fell on the bed. She was not expecting that. He ended up on top of her, holding her with one hand while his hands were up her skirt. She thought she was going to die. She thought of fight or flight. She was just thinking of getting out. As they struggled on the bed one of her hands was pinned. K.H. testified that while they struggled, Mr. Nygard inserted a few fingers in her vagina. She felt instant pain. She felt as if she were being ripped open. She told him that he was hurting her, but he ignored her. He tried to lift her while holding her vagina. He ripped her blouse in the struggle. She was in shock as Mr. Nygard was a big man and very strong. She described him as being like an animal – very forceful and aggressive. She was saying “no” and “get off me” and trying to fight him off. The assault only ended when the intercom went off and his secretary or receptionist informed him that his next appointment had arrived. Mr. Nygard then got off her as if nothing had happened. He said, “it’s your lucky day.” He pointed to a rack of shirts and told her she could take one to wear to replace her ripped blouse.

[60] Mr. Nygard testified that he did not recognize K.H. when she testified. Mr. Nygard testified that he did not recall meeting her on a plane to The Bahamas in 1988. Mr. Nygard testified that he did not tackle and sexually assault K.H. It was not the sort of thing he would have done.

[61] K.H. did not go to the police. Afterwards she spoke to her mother and told her what happened. Her that it was her word against his, and that she would not be believed. Her mother advised her to put it behind her. She did not seek medical attention as she was embarrassed. She felt humiliated and second-guessed herself for having bad judgment.

[62] K.H. read about the class action in the United States online and learned that the American lawyers were looking for witnesses. She contacted the class action lawyers and gave them a statement. She joined the class action. The class action lawyers offered counselling. A group called Sanctuary gave her the names of a few different therapists to choose from. She chose Ms. Moroney. Toronto Police officers contacted her through Ms. Moroney. She spoke to the police in 2020, but did not give a statement to the police until 2021, when she felt comfortable that the police would follow through.

[63] The jury convicted Mr. Nygard of sexual assault in relation to K.H.

Shannon Moroney

[64] Ms. Moroney is a therapist. She has treated several women who have made complaints about Mr. Nygard. On the original indictment including eight complainants Ms. Moroney had treated six of them. Of the five remaining complainants on the indictment on which Mr. Nygard was tried, Ms. Moroney treated all but N.G. Mr. Nygard sought 7 categories of records from Ms. Moroney in a third party records application. I dismissed the application (with some exceptions) in a Stage 1 ruling found at: R. v. Nygard, 2023 ONSC 3814. I summarized the defence position in the ruling at para. 22 as follows:

The same therapist engaged very deeply in therapy with 7 of the 9 complainants and guided them to the police. The therapist, Ms. Moroney, engages in “deprogramming” of the therapists and has been part of a campaign against Mr. Nygard. Indeed, he argues that she is part of the “investigative team” through her contacts with complainants, the police, and U.S. class action lawyers. In a text to DC Taylor, the lead investigator, she exclaimed “Happy day!” when Mr. Nygard was detained. She was part of the same team when she went to the Bahamas to take photographs of the Nygard estate. Because Ms. Moroney has been “deprogramming” these complainants, there is a potential for collusion. Mr. Greenspan does not allege malice, or even direct collusion, but rather indirect collusion.

[65] In my ruling I pointed out that the Court of Appeal has generally expressed a preference for the term “inadvertent tainting” rather than “inadvertent collusion”: R. v. C.G., 2021 ONCA 809 at para. 28.

[66] Of the seven categories, I found that five categories did not meet the test of likely relevance (with two minor exceptions in one category) and that two categories did meet the test. I ordered production to me for review on Stage 2. After Stage 2, I ultimately ordered disclosure of a limited number of documents.

The U.S. Class Action

[67] All of the complainants except for N.G. are participating in a class action against Mr. Nygard. The defence position, broadly, was that the existence of the class action gave each complainant a motive to fabricate. Thus, each complainant (save and except for N.G.) had a financial motive. The four complainants who are involved in the class action were referred to Ms. Moroney and/or the police through the class action lawyers.

[68] Media

[69] Each of the complainants (except N.G.) contacted the class action lawyers in the United States after reading media reports about the lawsuit against Mr. Nygard.

POSITIONS OF THE PARTIES

The Crown’s Position:

[70] Ms. Serban, for the Crown, argued that the cross-count similar fact evidence was relevant to the actus reus of the sexual assaults. The Crown’s position was that each sexual assault disclosed a pattern of behaviour. The cross-count similar fact evidence was also relevant to rebut Mr. Nygard’s denials that sexual assaults ever happened and that he did not remember any of the women except R.M. The cross-count similar fact evidence was also relevant to the credibility of each complainant – the cross-count evidence confirmed important details, such as the layout of 1 Niagara Street. Similarities between the accounts of the complainants also showed the relevance of the evidence. Similarities can but need not include similarities between sexual acts. It is not a box-ticking exercise.

[71] Crown counsel provided a detailed chart indicating the relevant similarities. Some of the key similarities included:

• Meeting on airplanes or airplane travel, which applied to K.R. and R.M.;
• Offering to arrange travel and accommodation, which applied to K.H., N.G., and K.R. (and actually doing it In the case of N.G.);
• The women were relatively young (all in their 20’s, with the exception of MN, who was 16;
• Mr. Nygard told K.H. and K.R. about his wealth and success; R.M., N.G., and M.N. certainly learned about his wealth and success;
• Mr. Nygard discussed his wealth and success with all five complainants;
• Mr. Nygard made sexualized comments or exposed the complainants to sexual activity prior to the assaults with all complainants except K.H.;
• Mr. Nygard gave every complainant a tour of 1 Niagara Street prior to sexual activity (except R.M. who was there to work);
• Each complainant described 1 Niagara Street and the private space in very similar terms;
• Mr. Nygard offered to mentor, help, or hire R.M., N.G., and K.H.;
• All of the sexual assaults occurred in the private suite at 1 Niagara Street;
• The complainants all described how the private suite at 1 Niagara Street was, in essence, hidden, and that Mr. Nygard controlled access in and out of the private suite;
• Mr. Nygard had control of 1 Niagara Street through his employees and his ownership of the building;
• Each of the complainants described how a much bigger and stronger Mr. Nygard used his physical strength to hold them down and sexually assault them; R.M. described blacking out but described waking up to Mr. Nygard pinning her wrists while having sexual intercourse with her;
• The sexual assaults on K.R., K.H., and M.N. were predatory in the sense that he lured them into 1 Niagara Street and violently sexually assaulted them; but the assaults on R.M. and N.G. are better described as targets of opportunity.

[72] Ms. Serban also argued that there is no evidence of actual collusion or tainting. There may have been some opportunity, but that is not the same. Where there is opportunity but not actual evidence of tainting, it is a matter of weight best left to the jury.

The Defence Position:

[73] Ms. Biddulph, for the defence, had two major points. She argued that there were significant differences (and granular differences) between the accounts of the alleged sexual assaults of the complainants. Moreover, the pattern of conduct evidence usually goes to the identity of the accused. Here, there is no identity issue. The only real issue in this case is credibility. Given the significant differences between the complainants and the lack of an identity issue, the probative value of the evidence is slight. It is outweighed by the prejudicial effect.

[74] Some of the important differences included:

• Mr. Nygard met the complainants under different circumstances. He met K.R., K.H., and R.M. on an airplane or airport tarmac; he met N.G. at a nightclub; and he met M.N. when someone else brought her to 1 Niagara Street.
• R.M. was hired to work at a party at 1 Niagara Street; M.N. was brought to 1 Niagara by someone else;
• Mr. Nygard made no sexualized comments to R.M. prior to the sexual assault;
• Mr. Nygard went on at least two dinner dates with K.R. and their relationship prior to the assault did not involve employment, fashion, or an offer to assist her; in fact, K.R. was the only complainant that Mr. Nygard took on a date;
• Mr. Nygard made no offer of employment or assistance to M.N.;
• R.M., unlike the other complainants, blacked out;
• Mr. Nygard gave or arranged to give morning-after pills only to M.N.;

[75] Ms. Biddulph further argued that there were significant opportunities for collusion. Four of the five complainants are part of the class-action lawsuit against Mr. Nygard in the United States. Four of the five complainants have gone to the same therapist, Ms. Moroney. The jury should be instructed that the complainants had that opportunity.

ISSUES:

[76] Given that the evidence was already admitted – the usual method in a jury trial, after all – the only question was what kind of instruction I should have given the jury. Was I required to instruct the jury that they must only consider the evidence as it related to each count? In other words, was I to instruct them that the presumption against similar acts applies? Or was I to instruct them that they may use the similar acts?

[77] To answer this question, it was necessary to delve into the following three issues:

(a) Did the alleged similarities show a specific propensity by Mr. Nygard? (b) Did the alleged similarities and have some connection with the issues in the case? (c) How was I to instruct the jury regarding tainting and/or collusion? (d) Did the probative value of the similar fact evidence outweigh the prejudicial effect?

ANALYSIS:

(a) Do the alleged similarities show a specific propensity by Mr. Nygard?

[78] The law presumes that evidence that applies to one count on an indictment may not be used as evidence on a different count on an indictment when the counts arise out of different fact situations: R. v. T.C., 2019 ONCA 898 at para. 42. The presumption against similar fact evidence arises because of two dangers: reasoning prejudice and moral prejudice. Reasoning prejudice arises where the jury might put more weight than is logically justified by the evidence; moral prejudice arises where the evidence simply shows that the accused is the type of person likely to commit the crime: R. v. Handy, 2002 SCC 56 at paras. 31-34; R. v. M.(J.)., 2010 ONCA 117 at para. 88; T.C. at para. 43.

[79] Like all presumptions, however, this one is capable of being rebutted. As Zarnett J.A. stated in T.C. at para. 50, quoting liberally from Handy, the evidence may be admitted where it shows

… a "particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it ... so long as it has some specific connection with or relation to the issues for decision in the subject case": Handy, at para. 92. This may be true of "situation specific behaviour", or an "observed pattern of propensity operating in a closely defined and circumscribed context", or "repeated conduct in a particular and highly specific type of situation": Handy, at paras. 90-91. This sort of evidence has cogency because "the pattern of circumstances in which [the] accused is disposed to act in a certain way are so clearly linked to the offence charged that the possibility of mere coincidence, or mistaken identity or a mistake in the character of the act, is so slight as to justify consideration of the similar fact evidence by the trier of fact": Handy, at para. 91. This evidence may be admissible if its probative value exceeds its prejudicial effect: Handy, at para. 55.

[80] Or, as Binnie J. in Handy at para. 45 stated: “As it was put in one American case: ‘The man who wins the lottery once is envied; the one who wins it twice is investigated.’ (United States v. York, 933 F.2d 1343 (7th Cir. 1991), at p. 1350).”

[81] Where the probative value of the evidence on a particular issue outweighs its prejudicial effect, the evidence may be admitted: T.C. at para. 48. To put it another way, the evidence of a similar act may be so highly relevant that its probative value in the search for the truth that it outweighs its potential for misuse by the trier of fact. As Justice Watt stated in R. v. McDonald, 2017 ONCA 568 at para. 78: “Probative value exceeds prejudicial effect, because the force of similar circumstances defies coincidence or other innocent explanation.” The trial judge must identify the issue to which the similar fact evidence relates. Probative value cannot be determined without reference to the allegations in the indictment, as the “utility of the evidence lies precisely in its ability to advance or refute a live issue”: Handy, at para. 73; McDonald, at para. 80.

[82] Where the issue is identity, a very high degree of similarity is required: McDonald at para. 79. There is no identity issue in this case.

[83] The defence relied on R. v. Amin, 2023 YKSC 44, as an example of a case where the trial judge did not find a sufficient degree of similarity. Respectfully, this case was one where the trial judge analyzed the allegations and made a finding. I think it was distinguishable on the facts.

[84] I have already set out the similarities and dissimilarities relied on by the parties. There was a significant degree of similarity between the various acts alleged by the Crown. There were undoubtedly dissimilarities, of course. It would be a rare person (or criminal) who would do everything the same way every time. The similarities must be sufficient to dispel the probability of coincidence. The evidence is called similar fact evidence; it is not called identical fact evidence. If perfect similarity were required, no such evidence could ever be admitted. It is a pattern of behaviour that shows the accused actus in a particular way under particular circumstances. The dissimilarities in sexual acts or touching are less important than the circumstances surrounding the incidents: T.C. at para. 60.

[85] Without going through the list in detail, and without examining every single similarity and dissimilarity, there were seven important similarities or sets of similarities that tipped the balance in favour of an instruction permitting use of the evidence count-to-count. I also found that the probative value of each similarity outweighed the prejudicial effect – bearing in mind that the test is not whether the evidence operates unfortunately for the accused; the test is whether the evidence operates unfairly: R. v. Jesse, 2012 SCC 21 at para. 52:

• First, the location of the sexual assaults and the opportunity that the location represented: they all took place in the private space at 1 Niagara Street. Importantly, it was a unique space and all of the complainants described it in very similar terms. I gave this factor a great deal of weight. This location was not a typical bedroom, hotel room, or other location where sexual activity might take place. It was a private space in a commercial building. The space was quite unusual. It was also secret. A person would not know that the private space was there unless Mr. Nygard specifically showed them. There were slightly different accounts of the nature of the wall. Whether it was hidden behind a wall, or a mirrored wall, is irrelevant – what matters is that it all complainants and other witnesses testified that it was hidden. Mr. Nygard testified that there was nothing secret about the room. The jury was free to accept or reject his evidence on this point, but there was evidence upon which the jury could find that it was hidden. The probative value of this evidence was high because it was open to the jury to find that Mr. Nygard used this hidden space uniquely when he carried out each alleged sexual assault. It gave Mr. Nygard an unusual opportunity to commit sexual assaults when the complainants were in the private space. The private space may have had other purposes, of course, but it was used for sexual activity – whether consensual or non-consensual. The prejudicial effect, in contrast, was low – the mere use of a location was highly unlikely to be misused by the jury for reasons of moral prejudice.
• Second, Mr. Nygard’s regulated entry into, and exit from, the private space. Not all the complainants described precisely the same manner of entry and exit – it may well have changed over time – but all described how Mr. Nygard had control. That degree of control was an important similarity. In my view, the probative value of the aspect of control was high. It was important to the way in which the sexual assaults were carried out – in the private space to which Mr. Nygard regulated access. The potential prejudicial effect was the possibility of moral prejudice. A secret compartment to carry out sexual assaults looks very bad, of course. The extremely high probative value of the evidence, however, outweighed the prejudicial effect.
• Third, the complainants described an aggressive, physical assault by Mr. Nygard where he overpowered them. Although R.M. and M.N. described a different kind of over-powering, that highly physical element was consistent as between all the complainants. Given the striking similarities of the assaults, the probative value of this evidence was high. I saw little prejudice arising from this evidence – the complainants described the assaults themselves, which are the very subject matter of each count on the indictment.
• Fourth, three of the complainants described how Mr. Nygard berated them. Mr. Nygard berated K.R. for being a tease, for leaving him after the sexual assault, and was generally insulting toward her. He told her later that “you never leave a man.” Mr. Nygard berated N.G. for resisting his advances, calling her a silly girl and telling her that her mother would be ashamed of her. He also berated N.G. by referring to her mother. Mr. Nygard had spoken to N.G.’s mother. Mr. Nygard berated R.M. for supposedly ruining a party by resisting his sexual assault. The probative value of this evidence was high: the berating was a striking similarity. Although there certainly was prejudice in the sense that the insults before, during, and after the sexual assaults were did not make Mr. Nygard look very good, that was the evidence. The berating and insulting were not so prejudicial that it outweighed the probative value of the evidence.
• Fifth, Mr. Nygard used a condom during each sexual assault. In two cases a complainant asked him to put a condom on. In any event, condom use was similar for all the complainants except K.H., and on that basis the probative value was high. The prejudicial effect is extremely low – after all, condom use is obviously recommended for all sexual encounters as a means of protection.
• Sixth, all complainants described how they were exposed to examples of Mr. Nygard’s wealth, fame, power. He dangled the possibility of exotic travel, which, of course, is related to his wealth, fame, and power. He met K.R., K.H., and R.M. on airplanes or tarmacs in the Caribbean. He invited K.H. to visit his estate at Nygard Cay. He had R.M. down to Nygard Cay. He discussed Marina Del Rey with K.R. He mentioned a job involving travel to K.H.; he also invited K.H. to Finland. He showed M.N. photos of his airplane. He also invited her and her date to Nygard Cay. He took K.R. to fine restaurants in a very expensive vehicle called an Excalibur. The probative value of this evidence was extremely high. It was central to the Crown theory. It would have been impossible to separate this aspect of the evidence from the sexual assaults themselves – the circumstances were far too intertwined. The prejudicial effect was low – after all, it was an accepted fact that Mr. Nygard was a rich and successful businessman. He gave evidence to that effect. It was acknowledged in the cross-examination of the complainants and the people who worked for Mr. Nygard.
• Seventh, many of the complainants noted details that were both similar and unusual. I will mention just a few. K.R. and N.G. both described a very fancy car, an Excalibur. Mr. Nygard agreed he owned an Excalibur. K.R. described Mr. Nygard enjoying the music to The Phantom of the Opera. Mr. Nygard testified that it was one of his favourites. Two complainants (K.R., K.H.) described a retractable or open roof. Mr. Nygard agreed that the building had a retractable roof and photographs of the roof were entered as exhibits. Two complainants (R.M. and K.R.) described a glass elevator. Two complainants (K.H. and K.R.) described an aquarium, although in different places. Two complainants (M.N. and K.H.) described plants or trees. Four complainants mentioned wood, such as a staircase (N.G., K.R., R.M., and M.N.).

[86] It is true that there were some important dissimilarities. I mentioned those dissimilarities when I summarized the arguments on this application. Some of those dissimilarities were less important, such as giving morning-after pills to M.N. That evidence had little weight because there is no evidence that morning-after pills were available during the earlier sexual assaults. Some dissimilarities are more important. One is the fact that Mr. Nygard went on dates with K.R. (such as to dinner and a concert) which he did not with any other complainant. While those dissimilarities had weight, they were less important than the similarities of the circumstances under which the assaults took place: T.C., at para. 60; R. v. B.(L.) (1997), 116 C.C.C. (3d) 481, 35 O.R. (3d) 35, 1997 CarswellOnt 2711, [1997] O.J. No. 3042 (Ont.C.A.) at para. 36.

[87] I turn next to the issue of whether the similarities have some connection to the issues in the case.

(b) Did the alleged similarities have some connection with the issues in the case?

[88] A trial judge must identify the material issues that the proposed evidence relates to. As Justice Binnie stated in Handy at para. 73: “The utility of the evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact.”

[89] The Crown must identify the live issues that the evidence relates to: Handy, at para. 74. The Crown identified four issues that the similar fact evidence was relevant to in this case:

• Establishing the actus reus of the offence of sexual assault;
• Rebutting a possible defence of honest but mistaken belief in communicated consent;
• Supporting the credibility of the complainants; and,
• Rebutting anticipated arguments of collusion and recent fabrication.

[90] The proposed similar fact evidence was clearly related in terms of establishing the actus reus of the offence. All of the complainants described an aggressive assault where Mr. Nygard used his physical strength to overpower them, even with R.M. and N.G. This was not a case where some complainants describe a romantic encounter or sexual activity that began consensually but became non-consensual: B.(L.) at para. 35.

[91] I do not propose to deal with the possible defence of honest but mistaken belief in communicated consent, because that defence simply does not arise on the facts of this case.

[92] The similar facts were also highly relevant to the issue of the credibility of the complainants. The defenced launched a very significant credibility attack. The defence alleged that each of the five complainants were lying. Thus, the similar fact evidence was highly relevant to credibility. The similarity of the details of 1 Niagara Street, for example, arguably lent credibility to the accounts of the complainants and rebutted the allegation that they were lying.

[93] I turn to the issue of tainting and collusion. I will deal with it under a separate heading because it engages slightly different issues.

(c) How was I to instruct the jury regarding tainting and/or collusion?

[94] The defence argued that there was an air of reality to the prospect of tainting. The defence made this argument on the basis that media reports may have exposed complainants to other accounts of sexual assault. Whether by design or inadvertently, the complainants may have altered their stories to conform to what was already in the public space.

[95] The defence also argued that there was a possibility of tainting because four of the five complainants were referred to and used Shannon Moroney as a therapist – and Ms. Moroney referred them to the Toronto Police.

[96] In my view, there was no air of reality to a claim of collusion. The complainants did not know each other. Four of the five complainants were referred to Shannon Moroney, who, in turn, referred them to the Toronto Police. That would have been the only opportunity for collusion, but defence counsel did not suggest that it went even that far. At best there was only the opportunity for collusion.

[97] I also find that there was no air of reality to a claim of tainting through media reports. The complainants did come forward based on media reports but, respectfully, there is no evidence that media reports did taint any of their evidence. That said, there can be no doubt that the existence of the media reports left open the possibility of inadvertent tainting.

[98] The premise behind similar fact evidence is the improbability of coincidence. The existence of collusion obviously undermines that premise. Where the evidence of collusion amounts to no more than a mere opportunity, it is best left to the jury: Handy, at paras. 110-111.

[99] Where there is actual evidence of collusion among complainants, the Crown must show on a balance of probabilities that the similar fact evidence is not tainted. If the Crown cannot do so then the proposed similar fact evidence must be excluded. Otherwise, it is a matter of weight for the jury: R. v. Dorsey, 2012 ONCA 185 at para. 26; R. v. Shearing, 2002 SCC 58 at para. 44.

[100] In Dorsey, the defence argued that media reports about the accused provided the complainants with the opportunity to concoct their evidence. The trial judge found that there was no air of reality to the claim of collusion or tainting. Accordingly, she instructed the jury that they were not to consider any suggestion that the evidence of the complainants may have been affected by media reports or opportunities to communicate with others in the drug subculture. The Court of Appeal found that the trial judge erred by instructing the jury to disregard the possibility of collusion. The opportunity to collude or the opportunity for tainting existed, even if there was no air of reality to actual collusion or actual tainting. The trial judge should have left it to the jury to consider: Dorsey at paras. 30-31.

[101] In my respectful view, this was a Dorsey situation: there was no air of reality to actual collusion or actual tainting. At the same time, there was a possibility of inadvertent tainting or the opportunity for collusion. It would have been a mistake to exclude the prospect of tainting from the jury’s consideration because the opportunity existed. It would also have been a mistake to exclude the similar fact evidence altogether on the basis of tainting or collusion – and to be fair, the defence did not ask for that.

[102] Ultimately, I accepted that the jury should be instructed as follows, at paras. 130-133 of the final instructions to the jury:

You must consider all the circumstances that affect the reliability of the evidence of the witnesses who told you about the offences they say Mr. Nygard committed.

There is evidence that all of the complainants came forward after reading media accounts regarding Mr. Nygard. [K.R.] testified that read about allegations in Frank Magazine in 1997 or 1998; in 2020 she read a New York Times article about the class action lawsuit on her phone and subsequently contacted the class action lawyers. [N.G.] read about Mr. Nygard’s arrest in February 2020 but did not contact the class action lawyers. [M.N.] read a Yahoo News article online in February 2020 and contacted the class action lawyers. [K.H.] read about the allegations online and contacted the class action lawyers. [R.M.] read two articles in the Toronto Sun in the first half of 2020 and then contacted the class action lawyers. All of the complainants except for [N.G.] testified that they were treated by Shannon Moroney, a therapist.

If you conclude, after considering all the evidence, that the similarity of the testimony of complainants is the result of tainting from reading media accounts, or from the same therapist treating four of the complainants, you must not use the evidence of one to decide or to help you decide whether Crown counsel has proven the case with respect to the others beyond a reasonable doubt.

Even if you do not conclude that the similarity in the testimony of the complainants is not the result of tainting, consider whether the evidence of the complainants is reliable despite the opportunity for tainting, and whether you should rely on it less or not at all because it may not be independent. It is for you to say.

DISPOSITION

[103] The application to use similar fact evidence across counts was granted, with instructions on the use that could be made of the evidence including the possibility of tainting or collusion.

R.F. Goldstein J. Released: August 1, 2024