COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nygard, 2024 ONCA 828[^1]

DATE: 20241108

DOCKET: M55472 (COA-24-CR-0928)

Fairburn A.C.J.O. (Motions Judge)

BETWEEN

His Majesty the King

Respondent/Respondent

and

Peter Nygard

Appellant/Applicant

Alan D. Gold and Ellen C. Williams, for the applicant

Emily Marrocco, for the respondent

Heard: November 5, 2024

ENDORSEMENT

A. INTRODUCTION

[1] A jury found the applicant guilty of four counts of sexual assault, one of which involved a 16-year-old complainant. The sexual assaults took place between 1988 and 2005. He was sentenced to an 11-year term of imprisonment, less presentence custody — leaving 6.7 years to serve. He appeals from conviction and sentence.

[2] In reasons dated October 7, 2024, the applicant was denied bail pending appeal: R. v. Nygard, 2024 ONCA 744. The bail judge came to the following conclusions: (a) that while the applicant’s bail is not frivolous, the merits were weak; (b) that the applicant had failed to establish that he would surrender himself into custody if released; and (c) that the applicant’s detention is necessary in the public interest. Therefore, he remains detained pending his appeal to this court.

[3] To place his detention in context, the applicant is also detained on other matters. He is detained awaiting extradition to the United States: see United States of America v. Nygard, 2024 MBCA 37, 438 C.C.C. (3d) 1, leave to appeal to S.C.C. requested, [2024] S.C.C.A. No. 340. While he has sought leave to appeal from the Manitoba Court of Appeal’s decision upholding the extradition decision, that application remains outstanding in the Supreme Court of Canada. The applicant is also detained on sexual assault and forcible confinement charges in both Quebec and Manitoba. To date, he has not sought bail on those outstanding charges.

[4] The applicant says that if he is successful in obtaining bail in this matter, he will then seek release in the outstanding Quebec and Manitoba matters. He also says that if he obtains bail in this matter and succeeds in obtaining leave to appeal to the Supreme Court of Canada in the extradition matter, he will endeavour to bring another bail application in that matter.

[5] This is an application brought under the first stage of s. 680 of the Criminal Code, R.S.C. 1985, c. C-46, seeking an order that the bail decision be reviewed by a panel of this court. For the reasons that follow, the application is dismissed.

B. The first stage of a s. 680 hearing

[6] Section 680 operates in two stages. First, the Chief Justice (or acting Chief Justice) decides whether to direct a review either to a panel of the court or, on consent of the parties, to a single judge. If that direction is made, then the panel or single judge will review the matter.

[7] While the two stages are often collapsed, with the consent of the parties, into a single hearing before a single judge, this matter is beginning with the first stage alone. Accordingly, I must decide whether a panel of this court should review the decision of the bail judge.

[8] Determining whether the matter should be sent to a panel for review involves a gatekeeping function. As gatekeeper, the Chief Justice (or acting Chief Justice) must screen the matter and direct a review only where it is “arguable” that the bail judge made material errors in law or fact when arriving at the impugned decision, or that the decision was clearly unwarranted: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 63-64. In this context, the term “arguable” is to be applied in a manner that ensures that those cases with no realistic possibility of success are excluded from review. As Doherty J.A. said in R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673, at para. 41, this first stage of a s. 680 review is very similar to a motion for leave to appeal, where the question is whether “there is a reasonable chance of success if a review is ordered”.

[9] In determining whether that threshold is met, regard must be had to the highly deferential standard of review that would be applied by a panel at the second stage of a s. 680 hearing. That standard requires the reviewing panel to be guided by three principles, as set out in Oland, at para. 61:

First, absent palpable and overriding error, the review panel must show deference to the judge’s findings of fact. Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted.

[10] To be clear, the review process is not intended to be one where the panel simply substitutes its opinion for the bail judge. Rather, intervention will only be warranted if the decision contains material errors of fact or law, or if the decision is clearly unwarranted: Oland, at para. 58.

C. Analysis

[11] The applicant does not suggest that the bail decision was clearly unwarranted. Rather, he predicates his argument on alleged errors of fact and law. Specifically, the applicant contends that it is arguable that the bail judge made three material errors of fact or law. She is said to have: (a) improperly discounted the probative value of the medical evidence of Dr. Leslie Goldenberg; (b) failed to appreciate the nature of the proposed release plan; and (c) erred in her assessment of the strength of the appeal. The applicant maintains that alone or in combination, these errors skewed the result toward detention. Properly approached, the applicant contends that release on strict house arrest, along with electronic monitoring, is warranted.

[12] For the reasons that follow, this application for a panel review must be dismissed.

A. No arguable error in assessment of the medical evidence

[13] The applicant maintains that the bail judge erred by unfairly discounting the probative value of Dr. Goldenberg’s medical reports, which say that the applicant’s health needs are serious and cannot be adequately met in prison. These reports were elicited for the first time at the bail hearing. The bail judge had “some difficulty” with those reports, partly because they conflict with the factual findings set out in the trial judge’s sentencing reasons and partly because of her finding that the “medical reports rely heavily on the applicant’s self-reports.”

[14] The applicant says that the bail judge’s reasons reflect error. First, he says that the bail judge should not have relied on the trial judge’s reasons because Dr. Goldenberg’s reports were not available to the trial judge at sentencing and, therefore, his reasons were uninformed by this relevant medical evidence.

[15] Second, Dr. Goldenberg’s reports are said to be unfairly described by the bail judge as being based upon the applicant’s self-reporting. Rather, the applicant says that the reports are based upon numerous factors, only one of which includes the applicant’s self-reporting.

[16] According to the applicant, if these reports were given their due weight, the bail judge would have recognized his frail health. She would have seen that the applicant is a nearly blind man that requires a wheelchair, needs regular medical testing, and, as a result, presents almost no flight risk. The bail judge’s failure to give effect to these facts, says the applicant, is a significant error.

[17] In my view, the bail judge made no material errors of law or fact when it came to Dr. Goldenberg’s reports. She carefully considered and accurately captured the content of those reports. She simply expressed skepticism over the content and impact of that evidence for purposes of release.

[18] In doing so, the bail judge did not err by relying on the trial judge’s findings of fact at the applicant’s sentencing proceeding. She thoughtfully reviewed Dr. Goldenberg’s comments on the applicant’s health needs, but found that his needs were already “squarely” before the trial judge. As a result, I see nothing wrong with the bail judge’s consideration of the trial judge’s findings of fact, including the applicant’s medical condition, the treatment he had received in custody, the fact that there was no “specific evidence” that the correctional authorities could not meet his medical needs, and the fact that the applicant was, at least to some extent, exaggerating and malingering.

[19] Nor was there any error in the bail judge recognizing the trial judge’s skepticism when it came to the “true depth of the applicant’s health problems.” The trial judge noted that the appellant’s health concerns were largely the product of the aging process that would “obviously continue” in or out of jail, because at some point he would be “paying the same bill that every one of us must eventually pay.” It was open to the bail judge to accept the trial judge’s findings in that regard and that the new Goldenberg reports did not change the health landscape.

[20] There is also nothing wrong with the bail judge’s conclusion that the reports rely heavily on the applicant’s self-reporting. The fact is that this is precisely what those reports reflect. The reports refer to the applicant’s own self-reporting on at least eight occasions. This self-reporting gives rise to almost half of Dr. Goldenberg’s recommendations for medical investigations. However, as the trial judge noted, there is nothing in the record to suggest that the custodial authorities have not and will not respond appropriately, as necessary, to the applicant’s medical needs as they arise. The bail judge was entitled to conclude that Dr. Goldenberg’s reports, largely informed by the applicant’s self-reporting, did not change this finding.

B. No arguable error in understanding the nature of release plan

[21] The applicant next argues that the bail judge failed to appreciate his proposed release plan. In the face of the applicant’s proposal, the bail judge expressed concern over whether he would surrender himself into custody. She disagreed that his previous unsuccessful release applications, when he still enjoyed the presumption of innocence, had limited application due to the passage of time and his deteriorating health. Rather, she found that his incentive to flee has increased given his convictions and the outstanding charges he faces in both Canada and the United States.

[22] The bail judge also noted that the applicant has a documented history of non-compliance with court orders in the Bahamas: see R. v. Nygard, 2022 ONCJ 20 (“Nygard (ONCJ)”), at para. 18. She observed that he has access to significant financial resources: see Nygard (ONCJ), at paras. 19-20; United States v. Nygard, 2021 MBQB 27 (“Nygard (MBQB)”), at para. 35, aff’d 2021 MBCA 27, leave to appeal to S.C.C. refused, [2021] S.C.C.A. No. 131. These factors were especially concerning given that the applicant admits that he does not have any ties to the Winnipeg community in which he proposes to reside.

[23] Accordingly, the bail judge looked to what she referred to as the “proposed surety”: Mr. Greg Fenske. She noted that he and his family live in a home only beneficially owned by him, but bought by the applicant. The proposal was that the applicant would live in that home and Mr. Fenske would be prepared to pay $500,000 if the applicant breached his bail, an amount secured by the value of the home. As the bail judge noted, Mr. Fenske has previously been found to have been dishonest with the Manitoba Court of King’s Bench: see Nygard (MBQB), at paras. 32-38. In these circumstances, she was not prepared to rely upon Mr. Fenske’s statements, especially where his funds were only nominally put at risk. On this basis, she concluded that the applicant remains a flight risk if released.

[24] The applicant argues that the bail judge erred by failing to understand the nature of the release plan and, accordingly, erroneously denied him release on the basis that he lacked “roots in the community” and that Mr. Greg Fenske was not a suitable surety.

[25] The applicant clarifies in this motion that Mr. Fenske was not actually proposed as a surety. Indeed, the proposal was never for a surety release. Rather, the proposal was that the applicant, who has admittedly no roots in the community, would essentially offer $1 million to secure his release. Specifically, half a million dollars for his release on this matter and, should he receive release on this matter, half a million to secure his release on the outstanding Manitoba matter. As the applicant’s Winnipeg home, which is where the $1 million security rests, is in Mr. Fenske’s name, Mr. Fenske provided an affidavit to this court to show that he would be willing to have the property moved on should the applicant breach his bail.

[26] Therefore, the applicant says that Mr. Fenske’s suitability as a surety was irrelevant to the bail application and the bail judge got improperly distracted by this misunderstanding.

[27] This argument cannot succeed. The fact is that the draft order that was filed on the bail application, should the bail judge have been inclined to release, named Mr. Fenske as a proposed surety and indicated that he would be pledging half the value of the $1 million home. In these circumstances, it is entirely understandable why the bail judge thought that Mr. Fenske was being proposed as a surety.

[28] Regardless, I agree with Crown counsel that even if the bail judge had incorrectly thought that the release plan was for a surety release, nothing turns on the issue. The bail judge trained her focus on the correct issue: whether the applicant discharged his onus to show that he would surrender himself into custody if released. She gave reasons for why she concluded that he had a greater incentive to flee now than when he was detained pending trial. She also made specific reference to his deep pockets, to his historical non-compliance with court orders, and to his lack of connection to Winnipeg.

[29] I see no arguable basis upon which to suggest that the bail judge erred in law or fact on this ground.

C. No arguable error in balancing enforceability and reviewability

[30] Finally, the applicant maintains that the bail judge erred in her balancing of the enforceability and reviewability criteria under the public confidence component of the public interest requirement in s. 680 of the Criminal Code. Specifically, he argues that the bail judge failed to give adequate weight to the reviewability interest.

[31] The reviewability consideration requires that an appellate judge look to the apparent strength of the appeal: Oland, at para. 40. In Oland, at paras. 44 and 51, Moldaver J. gave guidance on the reviewability component of the test, noting that the bail judge should consider whether the grounds of appeal “clearly surpass” the minimal standard of “not frivolous”.

[32] Here, he maintains that the bail judge erred by failing to appreciate the strength of the ground relating to the admission of expert opinion evidence regarding the response to traumatic events. The expert opinion evidence in issue was recently found to be inadmissible by this court in R. v. Hoggard, 2024 ONCA 613. Even so, the curative proviso was applied, and the appeal was dismissed: Criminal Code, s. 686(1)(b)(iii). Since this evidence may similarly be found inadmissible in this appeal, the applicant argues that the Crown’s success on appeal will also likely depend on the use of the curative proviso.

[33] In this regard, the applicant maintains that the bail judge erroneously discounted the significance of this expert evidence to the jury’s verdicts of guilt. He claims that the bail judge failed to acknowledge that the trial judge reviewed this evidence in detail in the charge to the jury. This review, according to the applicant, signaled its significance to the jury, which in turn goes some distance to undermining any reasonable application of the curative proviso on appeal. Ultimately, the applicant contends that had the bail judge properly appreciated the strength of this ground of appeal, as well as others, she would have concluded that the reviewability component of the public interest test was outweighed by the enforceability component of the test.

[34] In my view, the bail judge did not err in her assessment of the expert evidence ground of appeal or its impact on the public interest analysis. She specifically and correctly noted that the public confidence component of the test requires a weighing of the societal interest in enforcement of judgments against the interest in reviewing judgments for error. She also acknowledged that this court’s decision in Hoggard made the applicant’s first ground of appeal relating to the admission of the expert evidence a clearly arguable one. It does not follow from that, though, that the reviewability interest necessarily outweighs the interest in enforcement of the judgment.

[35] To the contrary, the reviewability interest must be looked at in the context of the specific facts of this case. While it will be for the panel hearing this appeal to make their own assessment of this matter and, accordingly, I will not weigh in to any significant degree, I simply note that there appears to be a difference between the Hoggard case and this one. Specifically, when compared against the Hoggard appeal, the expert opinion in this matter does not appear to have been as central to the prosecution’s case. As the Crown argues on this application, and as noted in the bail judge’s reasons: “the circumstances in this case were different, as the question was not whether the complainants consented but whether the events took place at all.” In this context, it is certainly arguable that the jury would not have resorted as heavily to the expert opinion evidence as it may have in another factual context, where consent was the issue.

[36] Even so, the bail judge clearly acknowledged the “arguable” nature of this ground of appeal, all the while finding that the remaining grounds of appeal do not clearly surpass the “not frivolous” standard. Indeed, as it related to the other grounds, she found that they are weak. I do not need to address why I agree with her assessment on those matters as they are amply dealt with in her reasons at paras. 38-39.

[37] In my view, the bail judge understood how to approach the public interest test, she carefully balanced the reviewability and enforceability criteria, and ultimately concluded that, weighing all of the factors, the public’s confidence in the administration of justice would be undermined by the applicant’s release pending appeal.

D. Conclusion

[38] In my view, there is no reasonable chance of success should a review be ordered. I find no basis upon which to direct a panel review. The application is dismissed.

“Fairburn A.C.J.O.”

[^1]: This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.