Court File and Parties

COURT FILE NO.: CR-22-10000493-0000 DATE: 2023-08-08 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – PETER NYGARD

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

HEARD: May 29, 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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.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.

Reasons for Judgment on Crown Similar Fact Application

R.F. GOLDSTEIN J.

[1] Peter Nygard was a famous and highly successful fashion designer and entrepreneur. He is charged with eight counts of sexual assault and three counts of forcible confinement. There are eight complainants particularized on the indictment. The allegations range in date from October 1, 1987 to May 31, 2005. The Crown applies for a count-to-count similar fact instruction to the jury in relation to the eight complainants. Both parties agree that the count-to-count application should be heard prior to my instructions to the jury.

[2] There is a ninth complainant, S.R., who is not on the indictment. Mr. Nygard does not face charges in relation to her. The Crown alleges that S.R. was sexually assaulted at Mr. Nygard’s estate in The Bahamas. The Crown applies to introduce the evidence of S.R. as similar fact evidence. These reasons deal with application only in relation to S.R. For the reasons that follow, the Crown’s application is allowed.

Background

[3] The Crown alleges that Mr. Nygard sexually assaulted the nine complainants, either in Toronto or at his estate in the Bahamas. Mr. Nygard used his wealth, power, and position to commit these assaults. The assaults were generally violent and forceful. Three of the sexual assaults allegedly included forcible confinement.

[4] The specific allegations (some of which can be found, in part, in my third party records ruling: R. v. Nygard, 2023 ONSC 3814, at paras. 10-17) are as follows:

• L.H. – Victim 1 on the indictment (counts 1 and 2, October 1-November 1, 1987): The Crown alleges that L.H. was sexually assaulted by Mr. Nygard at his property at 1 Niagara Street in Toronto during a Halloween party in 1987. In her police statement she could not recall whether she received an invitation from her modelling agent or from a friend. She was in a “blur” when Mr. Nygard allegedly took her to his bedroom. There were multiple television screens. He showed her his glass shower. She woke up the next morning naked in bed with Mr. Nygard. She tried to leave but Mr. Nygard told her: “you aren’t going anywhere”. She believes he locked the door. He then proceeded to assault her vaginally and anally without a condom. She described him going from “one hole to the next” and then ejaculating inside her. She described him as being like a wild beast. When she left he offered to let her drive his Mercedes. L.H. said nothing until 2020, when she read an article about Mr. Nygard. She contacted the journalist who wrote the article. The journalist put L.H. in touch with Lisa Haba, a lawyer representing complainants in a U.S. class action against Mr. Nygard. L.H. gave a statement to the Toronto Police on April 27, 2021.

• N.G. – Victim 2 on the indictment (counts 3 and 4, November 1, 1988-February 28, 1989): The Crown alleges that in June 1988 N.G. met Mr. Nygard at a fashion event in Hull, Quebec. N.G. worked on a television show for children and was also an aspiring fashion designer. A few months later Mr. Nygard called her. He eventually invited her to visit him at his office at 1 Niagara Street, flying her to Toronto for a date and booking a hotel for her. N.G. and Mr. Nygard met at a restaurant. Mr. Nygard made sexualized comments. They then went to 1 Niagara Steet where Mr. Nygard gave N.G. a tour. When he showed her his bedroom he forced her down on the bed. He removed her clothing and forced cunnilingus on her. He tried to penetrate her anus with his penis but was unable to. Mr. Nygard then got a condom and penetrated her vagina with his penis until he ejaculated. She begged him to unlock the door so she could leave but he initially refused. Eventually he permitted her to leave. The next day he called her and berated her for leaving him. She worried that he could “ruin” her. N.G. saw Mr. Nygard again in 2003 at a party in California. He acknowledged hurting her and promised to “make it right”. Eventually N.G. disclosed the assault to her husband, and then reported it to the Los Angeles Police. The Los Angeles police referred the assault to the Toronto Police.

• K.R. – Victim 3 on the indictment (count 5, December 3-4, 1989): The Crown alleges that K.R. met Mr. Nygard in Nassau, The Bahamas, in 1987. They were about to board a flight to Toronto. They went to dinner a couple of times, but nothing happened until Mr. Nygard invited her to a Rolling Stones concert. After the concert Mr. Nygard took K.R. back to his property at 1 Niagara Street. He took her to his bedroom and locked the door. K.R. was unable to leave. Mr. Nygard asked her to make him a sandwich, which she did. She told him she wanted to leave, but Mr. Nygard refused and berated her. He pinned K.R. down on the bed. He pulled off her clothes. She unsuccessfully tried to fight him off. She implored him to at least put a condom on, which he did. He then proceeded to sexually assault her vaginally. After the assault K.R. went home. She disclosed the sexual assault to her roommate. In 1998 K.R. saw an article about Mr. Nygard allegedly sexually harassing women. She contacted the editor. The editor put her in touch with S.R. S.R. is the subject of this similar fact application. S.R. told her that she had been to 1 Niagara Street and that Mr. Nygard had sexually assaulted her in The Bahamas. In 1998 K.R. gave a video statement to Toronto Police. Her friends were also interviewed at the time because she had earlier disclosed the sexual assault to them. She did not proceed with criminal charges at the time. She decided to proceed in 2021.

• K.H. – victim 4 on the indictment (count 6, April 1-September 30, 1988): The Crown alleges that K.H. met Mr. Nygard on a flight to the Bahamas. He approached her and they chatted. He asked her if she was a model. He ultimately offered her a modelling job that would triple her salary. K.H. later contacted him about a modelling job when they were both back in Toronto. He invited her back to his property at 1 Niagara Street. He gave her a tour of his building. He took her to his bedroom on the top floor. There he allegedly pushed K.H. on the bed. She tried to resist him but he used his weight and strength and she could not move. He ripped her clothing. He inserted his fingers in her vagina. L.H. described him as an animal who had not seen food in months. Mr. Nygard was then called to an appointment and stopped the alleged assault. K.H. called her mother and went home, throwing out the clothing she wore that day. K.H. gave a statement to the police on January 21, 2021.

• L.Z. – victim 5 on the indictment (counts 7 and 8, September 1, 2004-May 31, 2005): The Crown alleges that in late 2004 or early 2005 L.Z. applied for a job with Mr. Nygard’s company. She was interviewed at 1 Niagara Street. While Mr. Nygard was out of the room attending to other matters an employee offered L.Z. a drink. L.Z. drank and felt “woozy”. She used the bathroom and when she emerged Mr. Nygard was standing naked. He proceeded to sexually assault her. He penetrated her vagina with his penis. She could not move. She described him as an animal. She recalls meeting another woman in the room. L.Z. believes that the other woman was 17 years old. She was then taken to New York in the same clothes she was wearing. She contacted her father and disclosed the sexual assault to him. He arranged to have her travel back to Toronto. L.Z. provided a statement to the police on February 9, 2021.

• M.N. – victim 6 on the indictment (count 9, November 1, 2004-March 31, 2005): The Crown alleges that M.N. went to a party at 1 Niagara Street with her boyfriend when she was 16 years old. When she got there with her boyfriend only Mr. Nygard and another young woman were there. Mr. Nygard and her boyfriend made sexualized comments about M.N. Mr. Nygard then forced cunnilingus on her while directing the other woman to touch M.N. He then put a condom on and penetrated her vagina with his penis. M.N. felt sick and went to the bathroom to throw up. Mr. Nygard allegedly told her that the condom fell off because her vagina was too tight. She removed the condom. She later went home. The other woman gave her some pills that M.N. believed were “plan b” contraceptives. M.N. disclosed the assault first to the U.S. class action lawyers and then to a private investigator working for them. M.N. gave a statement to the Toronto Police on January 8, 2021.

• M.B. – victim 7 on the indictment (count 10, April 1, 1986-September 30, 1986): The Crown alleges that in 1986 M.B. worked as a fashion model. She met Mr. Nygard at a fashion event at the Metro Toronto Convention Centre. He approached her and invited her for a drink. He introduced her to people as his girlfriend. At some point between April 1, 1986, and September 30, 1986, Mr. Nygard held a party at his office at 1 Niagara Street. He booked a hotel room for M.B., who shared it with another woman who had flown in from Sweden or Finland. M.B. did not know that she would be sharing her room. After the party M.B. and the other woman went back to the hotel room. Mr. Nygard appeared and demanded entry. The other woman hid in the room. Mr. Nygard looked for her and became angry that he could not find her. He then pushed M.B. onto the bed, lifted her dress, and used his body weight to hold her down. He penetrated her with his penis and “pounded” her, hurting her. He used “a lot of force”. He ejaculated and then left. M.B. did not disclose the sexual assault until 2022 when she saw a report about Mr. Nygard in the media. She told her husband about it.

• R.M. – victim 8 on the indictment (count 11, April 1, 1994-September 30, 1994): In March 1994 R.M. was working as a model and as a hostess. The Crown alleges that she met Mr. Nygard on a flight from the Turks and Caicos. She was travelling with a friend. Mr. Nygard invited her and her friend to stop in the Bahamas and have dinner with him. There was an “orgy” at the Bahamas residence and R.M. left. She returned to Toronto. Mr. Nygard asked her for a date several times. Eventually she agreed to host a fashion show for him. He then hired her again to host a party at 1 Niagara Street. She had 2-3 drinks. Several guests engaged in an “orgy” in Mr. Nygard’s bedroom. She then fell asleep. She woke up with Mr. Nygard on top of her. She told him “no”. Others were present. He tried unsuccessfully to penetrate her with his penis. She eventually got up, put her clothes back on, and left. She continued to host parties for Mr. Nygard. He occasionally compelled her to perform other sexual acts. In 2001 Mr. Nygard invited R.M. to the Bahamas where he allegedly sexually assaulted her anally.

The Evidence of S.R.

[5] The Crown proposes calling S.R. as a similar fact witness. The Crown alleges that in 1995 S.R. approached Mr. Nygard with a business idea. She worked at a novelty store in the Yorkville neighbourhood of Toronto. It was S.R.’s summer job after her first year of university. Her business idea was to create “love baskets” of sexual novelty items for stags, anniversaries, and other events. She was interested in the fact that he was connected to “the Islands” and wanted to work there. She sent him a letter and a photo of herself. S.R. and Mr. Nygard had never met.

[6] S.R. gave the police a statement in 1998. According to the statement, Mr. Nygard contacted S.R. in December 1995. He eventually invited her to come with him to the Bahamas. She understood this to be a business opportunity, as well as a vacation. Prior to the Bahamas trip Mr. Nygard invited her to his office at 1 Niagara Street. He gave her a tour and invited her to his bedroom. They apparently drank beer, ate chips, and watched television. S.R. went to the bathroom. When she returned, Mr. Nygard exposed his penis to her and made sexual advances, but she declined them. He did not get angry at her and laughed it off.

[7] According to her 1998 police statement, S.R. flew to the Bahamas on December 17, 1995, and returned on December 28, 1995. Mr. Nygard allegedly assaulted her at least four times during her stay. He forced cunnilingus as well as anal and vaginal intercourse on her. During the first incident S.R. and Mr. Nygard were in his room giving each other massages. He tried to penetrate her anus with his penis. She told him to stop but he got a lubricant and then succeeded in penetrating her anally. His penis slipped into her vagina at one point. During the second incident, S.R. agreed to give Mr. Nygard a massage. He then forcefully penetrated her anally. During the third incident, Mr. Nygard penetrated S.R. anally although she told him to stop as she was bleeding. During the fourth incident Mr. Nygard touched S.R. while she brushed her teeth. He shoved her onto the bed and forced cunnilingus on her.

[8] S.R. attended Women’s College Hospital to deal with rectal bleeding the day after she came back from The Bahamas. She disclosed to the hospital staff that she had been raped in The Bahamas and that the sexual activity consisted of anal and vaginal intercourse.

[9] In 1998 Frank Magazine published articles alleging that Mr. Nygard had engaged in sexual harassment or sexual assault. S.R. approached the publisher of Frank. She briefly spoke as well with K.R., who had also spoken to the publisher On July 17, 1998, she gave a 241-page statement to the Toronto Police but did not complete it. She told the police she did not want to proceed further. S.R. is the proposed similar fact witness.

[10] K.R. recorded a police statement on July 24, 1998. During the statement she told the police that she contacted the editor of Frank Magazine, Glen McGregor. Mr. McGregor told her that another girl had called him and had been raped by Mr. Nygard but that it had occurred in The Bahamas. Mr. McGregor asked if he could give her number to this other girl. The other girl – S.R. – called K.R. and they spoke on the phone. K.R. told the police that S.R. had told her that she had a business position with Mr. Nygard and that they could go to the Bahamas to talk business. K.R. told the police the following (I have removed some of the audio markers in order to make the statement more intelligible but otherwise not changed the content):

OFFICER: What happened – she tell you what happened there at all? K.R.: No (ph). (audio skipping) Yeah. The, the – the first week it was kind of okay, and uh – and uh or, or (audio is skipping) kind of okay and that’s it’s a huge and that there (audio skips) on the property. She was in one space (audio skips) and that there was a security code to get in there – to get into the space, and he’s got codes – security codes of all the other buildings, and (audio skips) to me that there were a lot of other women – young women – that they were kind (audio skips) of her when she arrived. So I have a (audio skips) a harem he has. Um...(tape is skipping) And that one night, he uh walked into the (audio skips) bathroom, and as he, he punch in the (audio skips)...and he crawled on the floor and uh grabbed her by the legs. She didn’t.... (audio skips) and RAPED her. I think she mentioned anal sex (audio skips)....her. Then she tried to leave and she couldn’t leave. She had to leave later. (audio is skipping) OFFICER: Uh did you tell her about what happened? K.R.: Uh...I, I said well that I was RAPED as well and that it had happened here in Toronto – that um he (audio skips) has a room (audio skips)... as well. (audio skips) And she (audio skips)... the building as well and she knew the room I was talking (audio skips).... (audio skips) taken her there before (audio is skipping) but not done anything there.

[11] S.R. recorded a police statement on July 17, 1998. She could not exactly recall K.R.’s name. She described the conversation with K.R. to the police:

OFFICER: Okay uhm have you ever tried to contact any of the other? S.R.: I called her and ah she called me back and ah she just said that ah “this happened to her nine years ago” so then I said, I said why are you talking about this nine, nine years later? And she said “well actually I wasn’t but she had told a, a friend of the story who had known her story and the friend saw the article and, and reached her.” OFFICER: Did the two of you discuss your stories with each other? S.R.: No she just she said she said she ah she didn’t talk long to me she just she just said “that ah she has the wedding to go to and things to do this week and so she doesn’t want to talk about this” but uhm – then ah you’d be the right she gave me ah your name. OFFICER: Okay uhm I would ask you that you not attempt to speak with her again okay uhm it just makes things a lot S.R: Yeah OFFICER: better ah if you don’t and uhm S.R.: she didn’t talk to me about what happened she all she said was “that this is a pattern and that he’s like ah it’s a pattern for him that when this happened to her he had raped a fourteen year old gi’- girl in Winnipeg and he got off with it because he just pays everyone off.” OFFICER: Okay uhm S.R.: Like the police force and everybody!

Procedural History

[12] S.R. is a client of Shannon Moroney. This application was argued prior to the defence third party records application. The defence position was that it needed to know whether Ms. Moroney was going to be required to produce records related to S.R. The Crown agreed that I should hold off until after the third party records ruling. In my third party records ruling I declined to order production of the records related to S.R. in the possession of Ms. Moroney. Accordingly, I am deciding this application on the basis of the application records filed by the Crown and defence.

Issues and Analysis

[13] Misconduct that goes beyond what is specified in an indictment is prima facie inadmissible in a criminal trial. Thus, evidence which simply indicates that an accused person has a propensity to commit a particular type of crime is inadmissible. There are two dangers associated with disposition or propensity evidence: 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.

[14] There are, however, exceptions to this general rule. The evidence may be admitted where the probative value of the evidence is so high that it will displace the general rule. Where the possibility of coincidence is so limited the evidence may be highly probative. 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).”

[15] In determining whether to admit similar fact evidence, the court must determine whether the evidence has probative value. The Crown must identify the issue that the that the evidence relates to: Handy, at para. 70-71, 74; R. v. MacDonald, 2017 ONCA 568 at para. 80. Where the issue is identity, a very high degree of similarity is required: MacDonald at para. 79. The second part of the test involves identifying the connecting factors. The court must determine whether the proposed similar fact evidence is appropriately connected to the facts as alleged in the indictment: Handy, at para. 81. The probative value analysis also includes the question of collusion: Handy at para. 99. Court must then determine whether the probative value of the proposed similar fact evidence outweighs the prejudicial effect: Handy at paras. 100-101, 150. The burden, of course, is on the Crown to persuade the court on a balance of probabilities that the evidence ought to be admitted: Handy, at para. 55.

[16] The Crown has identified four issues that the similar fact evidence is relevant to:

• 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.

[17] The proposed similar fact evidence, therefore, must relate to each of these issues.

[18] The defence position is that the application should be dismissed for several reasons. First, the evidence lacks probative value because there is insufficient similarity between S.R.’s allegations and the allegations made by the other complainants, and because of collusion and tainting; second, S.R.’s evidence lacks credibility, as her story has changed over time, again reducing the probative value; and third, the prejudicial effect of S.R.’s evidence is simply too high and outweighs the probative value. The evidence raises the danger of both moral prejudice and reasoning prejudice.

[19] For the purpose of analysis, I break down the issues this way: (a) Does the evidence have probative value? (b) Was there collusion or the opportunity for collusion between S.R. and K.R.? (c) Does S.R.’s evidence lack credibility? (d) Does the prejudicial effect of the proposed evidence outweigh the probative value?

(a) Does the evidence have probative value?

[20] The defence argues that the Crown has merely argued that the similar fact evidence shows that Mr. Nygard leveraged his status as a rich and powerful business person to access young women for his own sexual gratification. That is not enough. When the factors are examined, there are simply too many dissimilarities between S.R.’s evidence and the evidence of the other eight complainants. As a result, the application must fail for insufficient similarity.

[21] With respect, I cannot agree. When I apply the Handy factors I find that there is a significant degree of similarity between S.R.’s evidence and the other complainants such as to discount any possibility of coincidence. I find that the probative value of the evidence is high. The evidence relates to the four areas identified by the Crown. It applies most strongly to establishing the actus reus of the offence and to rebutting evidence of recent fabrication, but it does apply to all four areas.

[22] Binnie J. set out the factors to be considered at para. 82 of Handy:

• Proximity in time of the similar acts;
• The extent to which the other acts are similar in detail to the conduct charged in the indictment;
• The number of occurrences of similar acts;
• The circumstances surrounding or relating to the similar acts;
• Any distinctive features unifying the incidents;
• Any intervening events;
• Any other factor tending to support or rebut the underlying unity of the similar acts.

[23] The court must also take into account countervailing factors and dissimilarities, the prospects for distraction, as well as the possibility of moral prejudice and reasoning prejudice.

[24] I interpret the cases as holding that a certain amount of flexibility is required. As Watt J.A. put it in R. v. J.M., 2010 ONCA 117 at para. 91, there is no bright line test:

The degree of similarity required to justify reception in a case will depend on the issues raised in the case, the purpose for which the evidence is proffered and the other evidence in the case: Handy at para. 78. Where the evidence of similar acts is summoned in support of proof of the actus reus, it is not an invariable requirement that there be a strong peculiarity or unusual distinctiveness underlying the events being compared: Handy at para. 81. The cogency of evidence of similar acts may arise from the repetitive and predictable nature of an accused’s conduct in closely defined circumstances. What becomes necessary in such cases is a persuasive degree of connection between the events of alleged similar acts and the offence charged in order to be capable of raising the necessary inferences: Shearing at paras. 48 and 50. The underlying unity need not lie in the distinctive nature of the acts themselves but may reside in the circumstances in which those acts occurred.

[25] In R. v. B. (L.) (1997), 116 C.C.C. (3d) 481, 35 O.R. (3d) 35 (Ont. C.A.), Charron J.A. (as she then was) noted at para. 37:

It is also important to consider which similarities are truly compelling. In cases of sexual assault, the similarities or dissimilarities between the sexual acts that are alleged are, of course, relevant, but often not as compelling as the circumstances surrounding the incidents. This stands to reason, particularly where there is nothing unusual about the sexual acts in question. In most circumstances, the fact that one complainant was kissed as compared to the other being fondled may not have a whole lot of significance. The allegations all pertain to acts of a sexual nature. In the same way, and again depending on the circumstances, the fact that one assault occurred in the basement as opposed to the other in the bedroom may not be of consequence on the question of probative value. The different location may simply be attributable to a different opportunity for privacy. For example, in B. (C.R.), the similarities that the majority found to be sufficiently compelling essentially related to the context within which the assaults occurred and to what was distinctive about that context…

[26] I turn to a consideration of the factors that I find to be relevant.

[27] Proximity in time of the similar acts: The allegations on the indictment range over many years, from 1986 to 2005. The allegations involving S.R. are in 1995, squarely in the middle of the date range. They are also proximate in time to K.R.’s allegations, which arise in the mid-90’s. I view proximity as a neutral factor.

[28] The extent to which the other acts are similar in detail to the conduct charged in the indictment: The sexual acts that all of the complainants alleged are similar, although obviously not identical. Two of the complainants say that Mr. Nygard locked the door or they believe he locked the door to the bedroom at 1 Niagara Street. Three of the nine complainants described him as an animal or beast. S.R. did not use the language of an animal, but she described him as a “Jeckyll and Hyde” character. Three of the complainants, including S.R., described anal sex or an attempt at anal sex. Two of the complainants (although not S.R.) describe group sex. Four of the complainants (including S.R.) describe pornography being displayed on screens.

[29] I find it significant that all nine complainants, including S.R., generally describe a sudden and forceful act of penetration:

• L.H. described Mr. Nygard assaulting her at 1 Niagara Street vaginally and anally without a condom. She described him going from “one hole to the next”. She described him as a wild beast.
• N.G. indicated that Mr. Nygard forced her down on the bed at 1 Niagara Street, removed her clothing, and forced cunnilingus. He tried to penetrate her anally with his penis. Mr. Nygard then got a condom and penetrated her vagina with his penis.
• K.H. stated that Mr. Nygard forced her on the bed at 1 Niagara Street. There he allegedly pushed K.H. on the bed. He used his weight and strength against her and she could not move. He ripped her clothing and then digitally penetrated her vagina. She described him as an animal who had not seen food in months. Mr. Nygard was then called to an appointment and stopped the alleged assault.
• L.Z. described how Mr. Nygard was standing naked when she emerged from the bathroom in his bedroom at 1 Niagara Street. He immediately penetrated her vagina with his penis. She said he was like an animal.
• M.N. described how Mr. Nygard forced cunnilingus on her. He put a condom on and penetrated her vagina with his penis. M.N. felt sick and went to the bathroom to throw up. Mr. Nygard allegedly told her that the condom fell off because her vagina was too tight. She removed the condom.
• M.B. described how Mr. Nygard appeared at her hotel room and demanded entry, pushed her onto the bed, and held her down. He “pounded her” using “a lot of force”.
• R.M. described attending Mr. Nygard’s home office, falling asleep, and waking up with Mr. Nygard on top of her. She told him “no”. Others were present. He tried unsuccessfully to penetrate her vagina with his penis.
• S.R. described multiple acts of non-consensual anal intercourse or attempted anal intercourse while she was in The Bahamas. Mr. Nygard also told S.R. that he didn’t like to do anything except anal sex. Three complainants, including S.R., indicated that Mr. Nygard penetrated or attempted to penetrate them anally.

[30] Several of the complainants described how Mr. Nygard berated them if they did not wish to have sex or did not wish to engage in the type of sexual activity that he wanted. S.R. told the police in her 1998 statement:

he would do this like everything like it’s now that I think about everything it’s more like – he’s got his like personality and it is like a Jekyll and Hyde during the day he was very nice – but ah but at night completely turn into a different person. And when I didn’t want to he would just stand there scream at me all kinds of things “you fuckin cunt I brought you here to do this you pussy you know you do what I say!” basically and then and, and – I did do it!

[31] The number of occurrences of similar acts: Nine complainants (including S.R.) each describe one or more forceful non-consensual sexual acts.

[32] The circumstances surrounding or relating to the similar acts: I agree with the Crown that it appears (at least on the surface) that there are important similarities between the circumstance of all the allegations. All involved Mr. Nygard allegedly using his power and status to attract young women. It is true that Mr. Nygard approached all of the other complainants, but that S.R. approached him with a business proposition. That, as Mr. Greenspan points out, is a dissimilarity that weighs against admission. On the flip side, however, Mr. Nygard’s wealth, power, and access to opportunities for complainants (such as the opportunity to fly to the Bahamas, which he extended to K.R., as well as S.R. or the opportunity to fly to Toronto, which he extended to N.G.) is common to all the allegations including the allegation involving S.R.

[33] Any distinctive features unifying the incidents: All of the alleged sexual assaults involved some contact with 1 Niagara Street. One dissimilarity is that S.R. and M.B. were not assaulted at 1 Niagara Street. M.B. attended there for a party. S.R. and Mr. Nygard spent time alone in his bedroom watching television and eating chips. Although the defence in its factum noted that, unlike in all the other cases, nothing happened, that is not quite correct: Mr. Nygard made a sexual advance towards her, allegedly showing his penis to her. She rebuffed him. As Charron J.A. noted in B. (L.), location may simply be a function of opportunity. The fact that Mr. Nygard did not sexually assault S.R. when he was alone with her at 1 Niagara Street, is, in my view, a neutral factor. On the evidence of all of the complainants, including S.R., Mr. Nygard did not commit a sexual assault every time he was simply alone with one of them.

[34] Any other factor tending to support or rebut the underlying unity of the similar acts: As Mr. Greenspan correctly points out, there are some factors tending to rebut the underlying unity of the sexual acts. S.R. approached Mr. Nygard with a business proposal. The other complainants were approached by Mr. Nygard. The Bahamas incident included reciprocal massages. According to S.R., Mr. Nygard attempted to penetrate her anally while massaging her. That was somewhat different from the force that was used against the other complainants – although Mr. Nygard did attempt to penetrate her with force on other occasions in The Bahamas. Mr. Nygard forcefully ripped the clothing off some of the other complainants, which did not happen with S.R., at least not while they were massaging each other.

[35] Conclusions regarding connecting factors: I accept that there are some dissimilarities between the allegations made by S.R. and the allegations made by the on-indictment complainants. There are also dissimilarities between the on-indictment complainants, which will no doubt be an issue during the cross-count similar fact application. There are also important similarities. All of the assaults involved young women. It is true that only S.R. approached Mr. Nygard with a business proposition, but an important feature common to most of the complainants, including S.R., was that there was a connection to Mr. Nygard’s business (M.N. and K.R. simply attended parties at 1 Niagara Street). Either Mr. Nygard offered them jobs as models, hired them to work at an event or a party, or they were applying for a job. Travel, including travel to New York or the Bahamas, or travel to Toronto, was an important feature for some (although not all) of the complainants, including S.R. That travel was a function of Mr. Nygard’s wealth, power, and status,. Although the alleged sexual activity with the complainants was not identical (it varied between vaginal and anal intercourse, digital penetration, and oral sex) a key feature in common was the forceful nature of it.

[36] When considering connecting factors, it is not a requirement that each incident involve the same sexual acts, locations, or circumstances: R. v. S.C., 2018 ONCA 545 at paras. 25-26. As Binnie J. noted in Handy at para. 78, quoting Grange J.A. in R. v. Carpenter (1982), 142 D.L.R. (3d) 237 (Ont. C.A.) at p. 244: “The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence.” When I view the evidence in its totality, I find that there is a high degree of commonality in the alleged sexual assaults. That commonality is sufficiently high that it discounts the possibility of coincidence: Handy, at para. 45.

(b) Was there collusion or the opportunity for collusion between S.R. and K.R.?

[37] The defence argued that it required the therapeutic records of S.R. and K.R. to determine whether there was collusion established. I ruled in my third-party records ruling that there was no basis upon which those records met Stage One. The records were not produced to me for examination.

[38] It is part of the court’s gatekeeper function to consider the possibility of collusion. The judge cannot assess the objective improbability of coincidence without addressing collusion. Collusion is a crucial factor because it tends to rebut the premise of the improbability of coincidence: Handy at paras. 99, 106.

[39] In R. v. C.G., 2021 ONCA 809 Nordheimer J.A. distinguished between inadvertent collusion and advertant collusion. Where witnesses deliberately fashion their stories, that is obviously advertant collusion and is clearly problematic. At para. 28 Nordheimer J.A. stated that inadvertent collusion (which he stated was better described as inadvertent tainting):

… occurs where one witness discusses the events with another witness with the consequence that the evidence of one or both of them may be altered. Put another way, a witness' evidence may be "inadvertently" impacted by the fact that they have heard the evidence of other witnesses which "can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events": R. v. B. (C.) (2003), 171 C.C.C. (3d) 159 (Ont. C.A.), at para. 40.

[40] Advertant collusion, or tainting, affects the credibility and reliability of the evidence. Inadvertent collusion, or inadvertent tainting, affects only the reliability of the evidence.

[41] In C.G. the Court of Appeal was dealing with a judge alone trial. Although a judge does not abandon the gatekeeper function simply because there is no jury, it is obvious that the gatekeeper function is more critical with a jury. In Handy, the Supreme Court was dealing with a jury trial and referred explicitly to the judge’s gatekeeper role. In my view, it is implicit in Handy and C.G. that evidence which has been concocted (advertant tainting) should generally be excluded at the gate-keeper stage. Evidence that is the subject of inadvertent tainting should generally be for the trier of fact to consider, although it is obviously not a hard-and-fast rule.

[42] There is no evidence that there was advertent tainting of the evidence of S.R. and K.R. based on one phone call some 25 years ago. Both complainants declined to go ahead with criminal charges at the time. There was no reason why they would have colluded. Indeed, if they were engaged in advertent tainting they did not do a very good job: they obviously failed to get their stories straight about what each said to the other when they talked to the police. I find no evidence of any concoction or collaboration.

[43] What of inadvertent tainting? Where there is no more than an opportunity to collude, then the issue should be left to the jury: Handy at para. 111. In my respectful view, the notion that there was inadvertent tainting is also speculative. S.R. and K.R. had a brief conversation in 1998, more than twenty years prior to the laying of charges against Mr. Nygard but more than two years after S.R. attended Women’s College Hospital. The defence points to differences between the stories that the two complainants told the police regarding the information that they exchanged. The defence also suggests that S.R. changed her story after speaking to K.R., pointing to inadvertent tainting. I am unable to agree. The conversation did not go beyond mere opportunity. As I have noted, even though both complainants went to the police in 1998, neither wanted to follow through with criminal charges. Any issue of in advertent tainting is wrapped up in the overall reliability of the two complainants. In my view, that is best left to the jury.

(c) Does S.R.’s evidence lack credibility?

[44] The defence argues that S.R.’s evidence lacks credibility because her story has evolved over time. As the defence puts it in the factum:

Tellingly, [S.R.]’s allegations evolved from the description in her medical records into much more serious allegations of repeated anal sexual assaults after she spoke to [K.R.] and read the Frank Magazine articles. This suggests that any superficial similarities that may exist are the product of collusion or tainting, not the improbability of coincidence.

[45] I agree with the defence that there have been changes over time to S.R.’s story, although for the reasons I have already mentioned I do not agree that they are the result of a conversation with K.R.

[46] In 1995 S.R. went to Women’s College Hospital. The records note that S.R. was “in Bahamas just returned was raped in Bahamas penetrated anally and vaginally forcefully”. The note also indicated “spotting”. It also describes a mix of consensual and non-consensual sex.

[47] S.R. and K.R. spoke at some point in 1998. On July 17, 1998, S.R. gave a police statement. She gave the police a further statement in 2020. She joined the U.S. class action in 2020 as well. There are differences in these various statements. For example, in the class action the allegation is that S.R. was interested in a modelling opportunity; she had told the police that she was interested in a business opportunity.

[48] Credibility is a factor that a judge must consider during the admissibility analysis, but there is no bright line test. As Binnie J. put it in Handy at para. 134:

In the usual course, frailties in the evidence would be left to the trier of fact, in this case the jury. However, where admissibility is bound up with, and dependent upon, probative value, the credibility of the similar fact evidence is a factor that the trial judge, exercising his or her gatekeeper function is, in my view, entitled to take into consideration. Where the ultimate assessment of credibility was for the jury and not the judge to make, this evidence was potentially too prejudicial to be admitted unless the judge was of the view that it met the threshold of being reasonably capable of belief.

[49] Although there have been changes to her story over time, it must be remembered that the time period is long – the alleged sexual assaults occurred in 1995. She gave police statements in 1998, and then more than 20 years later, in 2020. It would be surprising if S.R.’s statements were perfectly consistent over such a long period of time. In my view, the evidence meets the test for threshold capability. It is reasonably capable of belief. The ultimately credibility of the evidence is best left to the jury.

[50] That, of course does not end the inquiry as I must determine whether the probative value of the evidence outweighs the prejudicial effect.

(d) Does the prejudicial effect outweigh the probative value?

[51] The defence argues that in this case the probative value of the evidence does not outweigh the prejudicial effect. S.R. described very significant sexual assaults involving anal sex, force, and berating. Given the frailties of the evidence, the prejudicial effect is very high. The allegations of forced anal sex are a quintessential example of moral prejudice, raising the potential for feelings of disgust. The allegations also raise the prospect of reasoning prejudice. Moreover, there is a high potential for distraction given the number of incidents described by S.R., the number of times she has gone on the record, and the significant contradictions in her evidence.

[52] Respectfully, I do not agree. When I weigh the evidence, I find that the probative value outweighs the prejudicial effect.

[53] Probative value depends on: (1) the strength of the similar fact evidence; (2) the live issue to which the evidence relates; and (3) the relative cogency of the factors connecting and distinguishing the similar fact evidence and the evidence of the charged offences.

See: R. v. S.C., 2018 ONCA 454 at para. 12.

[54] The specific question is whether the prosecution can show, on a balance of probabilities, in the specific context of the case, that the “probative value of the evidence in relation to a particular issue outweighs its potential prejudice, thus warrants its reception”: R. v. J.M., 2010 ONCA 117 at para. 89.

[55] Is the evidence strong enough to be capable of properly raising in the eyes of the jury the double inferences that the Crown contends? In my view, the answer is “yes”. I find that the proposed evidence of S.R. is relevant to each of the areas that the Crown wishes to use it. Although there are dissimilarities, as I have mentioned, I find that the connecting factors are strong – especially the nature of the force used, the sexual activity alleged, and the displays of wealth and power by Mr. Nygard.

[56] The danger that the jury will engage in reasoning prejudice and moral prejudice is usually present when similar fact evidence is introduced. If the mere danger of moral and reasoning prejudice were the test, then similar fact evidence would rarely be introduced. The issues are whether the risk is so high that the jury will engage in it, or the danger cannot be obviated with a jury instruction. There is a danger in this case. That said, I find that the danger is not so significant that it cannot be dealt with by way of a jury instruction. I also take into account that S.R. is but one complainant – her evidence will certainly not overshadow that of the other complainants. Her evidence is unlikely to overwhelm or distract the jury.

[57] Overall, I find that the probative value of the evidence of R.S. in relation to the issues raised by the Crown outweighs the prejudicial effect.

Disposition

[58] The application is allowed. S.R. will be permitted to testify. I will, at the appropriate time, entertain submissions, if any, about the scope of her evidence and mid-trial and final instructions to be given to the jury.

R.F. Goldstein J. Released: August 8, 2023