ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

PETER NYGARD

Neville Golwalla and Ana Serban, for the Crown

Gerri Wiebe, for Peter Nygard

Richard Litkowski, amicus curiae

HEARD: July 24, 25, 2024

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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.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

TABLE OF CONTENTS

1. Procedural Background. 2

2. 1 Niagara Street 3

3. Sexual Assault Of K.R. 3

4. Sexual Assault Of N.G. 4

5. Sexual Assault Of M.N. 5

6. Sexual Assault Of K.H. 6

7. Mr. Nygard’s Background. 6

8. Mitigating Factors. 7

9. Aggravating Factors. 10

10. Was Mr. Nygard In A Position Of Trust?. 12

11. K.R.’s Decision In 1998 Not To Pursue Charges. 12

12. Positions Of The Parties. 14

13. The Appropriate SOIRA Order 14

14. Standalone Restitution Order 15

15. Mr. Nygard’s Age And Health. 17

(a) Mr. Nygard’s Health. 18

(b) The Ability of Correctional Services To Care Properly For Mr. Nygard. 21

(c) Mr. Nygard’s Age: Analysis. 23

16. Pre-Sentence Custody – “Summers Credit”. 24

17. Credit For Harsh Conditions Of Custody – “Duncan Credit”. 25

18. Principles Of Sentencing. 25

19. Sentence Imposed. 28

R.F. GOLDSTEIN J.

1Peter Nygard is a sexual predator. He is also a Canadian success story gone very wrong. He immigrated to Canada as a youngster and grew up in a family of modest means. He worked hard and became wealthy and famous. He lived a jet-setting lifestyle. But he used his wealth and power to commit four sexual assaults. Mr. Nygard now comes before the Court for sentencing.

1. Procedural Background

2Jury selection commenced with on September 11, 2023. On November 23, 2023, the jury convicted Mr. Nygard of sexual assault in relation to K.R., N.G., M.N., and K.H. The jury acquitted Mr. Nygard of sexual assault in relation to R.M. and one count of unlawful confinement in relation to N.G.

3Brian Greenspan and Michelle Biddulph represented Mr. Nygard during his trial. On December 20, 2023, Mr. Greenspan applied to be removed as counsel of record due to a breakdown in the solicitor-client relationship. I granted the application on January 17, 2024.

4On January 30, 2024, Megan Savard appeared and indicated that she was in the process of being retained. On February 13, Ms. Savard went on the record. A sentencing date of May 14, 2024, was set for a full day. On May 7, 2024, Ms. Savard brought an application to adjourn the sentencing date. New dates of June 25 and 27, 2024 were set aside for sentencing. On June 7, 2024, Ms. Savard indicated that she too could no longer act for Mr. Nygard due to an ethical issue. On June 10, 2024, I granted Ms. Savard’s application to be removed from the record. I appointed amicus curiae, Richard Litkowski, to assist the Court in the event that there was a similar breakdown with future counsel.

5On June 17, 2024, Gerry Wiebe indicated that she could act for Mr. Nygard but only if I granted a short adjournment. I adjourned Mr. Nygard’s matter to permit Ms. Wiebe to get up to speed. The sentencing hearing took place on July 24 and 25, 2024.

6I turn now to the facts, starting with the location of the sexual assaults.

2. 1 Niagara Street

7Mr. Nygard owned a commercial building at 1 Niagara Street in Toronto. He played a significant role in planning and designing it. Each of the complainants was impressed by the building. The photographs show that it blended wood, water, and live plants. K.R.’s father was an architect. She had an eye for architecture. She noticed and was impressed by many of the details. M.N. described the building as impressive. K.H. was working at the time for a company that had worked on the retractable roof for what was then the Skydome and is now called the Rogers Centre. She was impressed by the retractable roof at 1 Niagara Street.

8The building also contained a private apartment. That was where Mr. Nygard stayed when he was in Toronto. The apartment included a large bed, picture windows, a glass shower, and other amenities. There were two critical points about the private apartment: first, it was hidden. A visitor to the building would not know it was there unless someone showed it to them. And second, access in and out of the private apartment was controlled by Mr. Nygard. An important aspect of each sexual assault was that Mr. Nygard had the power to control who could get in – and the power to decide when they could get out.

3. Sexual Assault Of K.R.

9K.R. met Mr. Nygard in The Bahamas in the summer of 1989. She was waiting to get on the airplane to go home when Mr. Nygard commented on the colour of her top. K.R. was 27 or 28 at the time. Mr. Nygard appeared to be in his 40’s. They chatted on the airplane. He insisted on driving her home from the airport. They stopped at 1 Niagara Street. He gave her a tour of the building, including what seemed like a hidden private apartment. Mr. Nygard later called her. They went out for dinner twice. Mr. Nygard told her he knew Prime Minister Mulroney. She later met a federal cabinet minister that he knew.

10In December 1989, Mr. Nygard invited K.R. to see a Rolling Stones concert. After the concert they went to his Niagara Street building. He invited her to have a drink with him. When they got into his private apartment, he started to insult her and use degrading language. He told her: “you’re wasting my time, you’re a cock tease”. She tried to leave. He chased her around the room. He grabbed her. He removed her clothing and pinned her down using his weight and his strength. K.R. testified that she felt she could do nothing. She told Mr. Nygard to put on a condom. He did so. He then forcibly penetrated her.

11After the assault, K.R. took a cab home. She told her roommate, an articling student at the time, what happened. She felt ashamed and embarrassed. 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 did not go to the police at that time.

12K.R. read her victim impact statement in court. K.R. described how the sexual assault has caused her tremendous anxiety over the years. It affected her ability to trust men which, in turn, affected her ability to be in a relationship. It also deeply affected her career. She suffered from anxiety attacks. She described depression, anxiety, and the inability to work for lengthy periods. She required years of therapy and anti-depressant medication. She could not perform well in her chosen field of acting. She limited herself to voice parts for a long time. She believes that it affected her career in a debilitating way. She was terrified for her safety until Mr. Nygard was incarcerated. She found that testifying was as horrendous as the sexual assault itself.

4. Sexual Assault Of N.G.

13In 1987 or 1988 N.G. met Peter Nygard at a nightclub in Gatineau. She was 20 or 21 at the time. N.G. lived in Ottawa. She was a television host on a children’s show on the CBC. She was also an aspiring fashion entrepeneur. She knew that Mr. Nygard was a famous fashion designer. They spoke for a few moments. She told him she was trying to break into the fashion business. He said he could help her. He asked for N.G.’s number.

14In March 1989 N.G. travelled to Los Angeles for four days on a CBC press junket. Mr. Nygard contacted her family home and spoke to her mother. N.G. eventually spoke to him from Los Angeles. She agreed to meet him in Toronto. They met at a little bar near his office. Mr. Nygard made sexual comments, which made her uncomfortable. She thought they were having a business meeting to discuss her aspirations in the fashion industry. She wore an outfit designed to make her look like a big kid as she thought that they might discuss the creation of a children’s line of clothing.

15N.G. and Mr. Nygard went to 1 Niagara Street after they were finished at the bar. He gave her a tour of the building and took her to his private apartment. Monitors on the wall were playing pornography. That made N.G. very uncomfortable. She had never seen pornography before. Mr. Nygard said, “I’m going to do that to you later.” He lunged at her and pinned her down on the bed. Mr. Nygard managed to get some of her clothing off and kept asking her why she wasn’t cooperating. He undressed and performed oral sex on her. She kept protesting but he was very strong. He had no difficulty holding her down. He turned her over and unsuccessfully tried to have anal sex with her. He started to penetrate her vagina. She protested. He began berating and degrading her. He told her to stop acting like a silly girl. He told her that her mother would be ashamed of her, which made her very upset. She asked him about AIDs. Mr. Nygard put a condom on. He had sexual intercourse with her very forcefully and aggressively.

16After 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 at that time.

17In her victim impact statement N.G. described herself as a happy young woman who was hard working and juggling careers, including a successful career as a host of a children’s television show. The sexual assault affected her tremendously. She has undergone years of requiring medication, time off work, and a diagnosis of post-traumatic stress disorder. She contemplated suicide. She described how this sexual assault derailed her life and her career.

18N.G.’s mother, T.G., also submitted a victim impact statement. She described the pain of watching her daughter suffer over the years. She has also suffered the guilt of being the one who connected Mr. Nygard and her daughter. I think it is very important to emphasize that while T.G.’s feelings of guilt are understandable, the responsibility for the sexual assault is entirely Mr. Nygard’s.

5. Sexual Assault Of M.N.

19M.N. met Mr. Nygard in 2004-2005. She was 16. M.N. was dating a man who invited her to a party put on by a famous fashion designer. She did not know who Mr. Nygard was. On the night of the party M.N. and her date drove to 1 Niagara Street. Mr. Nygard met them on the stairs inside the building. Another woman was present. There was no party. Instead, Mr. Nygard took them on a tour of the building. They went to Mr. Nygard’s private apartment.

20Mr. Nygard made drinks for everyone. M.N. thought that this was a pre-party drink. The men began to speak in a more sexual way. M.N.’s date said to Mr. Nygard that he needed to see M.N.’s vagina. That made her scared. Mr. Nygard said, “I have to see it.” Mr. Nygard and her date started wrestling with her while she tried to resist. Her date encouraged her to let Mr. Nygard touch her. Mr. Nygard’s hands were on her thighs. Mr. Nygard pulled her skirt and underwear off. The men were looking at her vagina and making sexualized comments about her.

21Mr. Nygard performed cunnilingus on her while her date performed cunnilingus on the other woman. Her date also put his penis in her mouth while Mr. Nygard had vaginal intercourse with her. She protested and tried to get away from him. 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 removed the condom from her vagina and then continued to vomit. The other woman gave her some pills and some water. M.N. later came to understand that the pills were Plan B contraceptive pills. M.N. did not go to the police at that time. She was ashamed and embarrassed.

22The sexual assault on M.N. is slightly different from the other three sexual assaults. Mr. Nygard engaged in what I would call predatory sexual activity with K.H., K.R., and N.G. M.N. was more of a target of opportunity – I have no evidence that he was part of any subterfuge that got her to 1 Niagara Street. That is not mitigating, of course.

23M.N. declined to provide a victim impact statement. I do not doubt, however, that the sexual assault was highly traumatizing. It was clear from her testimony that it affected her deeply.

6. Sexual Assault Of K.H.

24K.H. met Mr. Nygard on a flight to The Bahamas in 1988. Mr. Nygard introduced himself. He asked her if she was a photographer or a model. Mr. Nygard offered her a job. He gave her a piece of paper with his Toronto number. K.H. laughed it off. Later she learned who Mr. Nygard was and called him. They arranged to meet at his office. She thought it was a job interview.

25On the day of the meeting K.H. went to Mr. Nygard’s building. Mr. Nygard gave her a tour. Mr. Nygard took her into his personal apartment. She felt uncomfortable and tried to leave but Mr. Nygard tackled her, and they both fell on the bed. He ended up on top of her, holding her with one hand while his hands were up her skirt. 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. 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”. 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.

26Afterwards K.H. spoke to her mother and told her what happened. K.H. felt that it was her word against his, and that she would not be believed. He was a rich, powerful man. 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. K.H. did not go to the police at that time.

27K.H. provided a victim impact statement. She described nightmares, trust issues, insomnia, and being afraid of the dark. She lost her carefree spirit. She did not have the means to go to professional therapy, so she did the best she could based on her own reading. She said that it is unrealistic for a sexual assault victim to simply “move on.” K.H. had therapy with Ms. Moroney many years later but the trauma of testifying set her back significantly.

7. Mr. Nygard’s Background

28Mr. Nygard was born in Helsinki, Finland, in 1941. His family immigrated to Canada in 1952. They lived in Manitoba, first in a small town and then in Winnipeg. His father was a baker, and his mother was a maid. Conditions were very difficult for his family. As a teenager he took on part-time jobs. His first job was as a “bundle boy” in a garment factory. He was educated at college in Minnesota and North Dakota.

29In 1967 Mr Nygard became involved with Jacob’s, a garment manufacturer. He eventually bought the company and expanded it. He developed product lines, opened his own chain of stand-alone retail stores, and supplied his products to major department stores in Canada and the United States. By the 1980s the company was a large operation. He had many employees throughout Canada and the world. He later purchased a Boeing 727 aircraft and called it N Force. He put his name on it.

30Mr. Nygard testified that he was constantly in the public eye. He was constantly designing and promoting his fashion lines. Design was his passion. He told the jury that the secret to his success was that he did not do drugs or smoke and did not drink a lot of alcohol. He had amazing energy levels and only needed four hours of sleep per night. He said he was a workaholic. Regarding his personal life, Mr. Nygard testified that he was briefly married but it did not work out. He has had other relationships and has had children with other women. He has been in open relationships his entire life.

31I have no information about Mr. Nygard’s personal life, such as the state of his current family relationships. Ordinarily during a sentencing hearing a judge learns something about an offender’s family status. In this case, I know more about Mr. Nygard’s properties – he had a cottage in Manitoba, and in addition to Niagara Street had residences in California and The Bahamas – than I do about the current state of his family support.

8. Mitigating Factors

32Mr. Nygard is a first offender. He finds himself before the courts on serious criminal charges for the first time as an elderly man. The fact that he is a first offender is mitigating. I take Mr. Nygard’s age and health issues into account, but as I will explain in some detail below, there is a limit to the amount of mitigation associated with his age and health.

33It is mitigating that Mr. Nygard was a successful entrepreneur who built a large and important Canadian company. Were it not for his criminality, he would be celebrated as a great Canadian success story – as I mentioned, he came to this country as a boy, his family struggled in the early years, and he acquired great wealth, success, fame. As a result of his financial success, Mr. Nygard was able to be very generous. He contributed millions of dollars to charity over the years. He was also generous with his friends and other worthy people, paying medical and educational expenses for many of them or for their children. As I will explain, however, the mitigation associated with Mr. Nygard’s business success, generosity, and charitable contributions is limited.

34Mr. Nygard filed several letters attesting to his good character. I have reviewed them in detail, but I will only attempt to summarize some of them because they have many similarities:

• Kenneth Morris is a lawyer in Boulder, Colorado. He has represented Mr. Nygard in business disputes since 2017. He said Mr. Nygard has shown many acts of kindness, charity, and generosity over the years. He described Mr. Nygard’s health consciousness. He has never seen Mr. Nygard act inappropriately around women.

• Nick Morf is a retired real estate agent, business consultant, and longstanding friend of Mr. Nygard’s. He also commented on Mr. Nygard’s health consciousness. He has attended many social events with Mr. Nygard. As he put it, at parties and public events Mr. Nygard “usually became the centre of attention. He could carry on a knowledgeable conversation on almost any subject.” Mr. Morf also noted that Mr. Nygard has donated to many charities. He has never seen Mr. Nygard with an underage female. He stated: “Even though many women would like to be around Peter, he was always friendly, and he usually had a girlfriend by his side.”

• Pastor Carl Johnson Jr. met Mr. Nygard in the Bahamas in 2015. Pastor Johnson is a former Senior Master and Assistant Coach at a Bahamian school. He observed Mr. Nygard’s compassion, humility, and tireless efforts to uplift those in need. He mentioned that he is particularly grateful for the financial funding that Mr. Nygard provided to the students of the track team that he coached.

• Reo Sorrentino is a volleyball coach and physical education teacher. He met Mr. Nygard playing in a professional beach volleyball tournament at Nygard Cay in The Bahamas. When Mr. Sorrentino moved from Florida to California Mr. Nygard generously offered to let him live rent-free in one of his Los Angeles apartments. He was frequently invited to play volleyball at Mr. Nygard’s home at his Sunday “Pamper Parties.” He described Mr. Nygard’s “Pamper Parties” where “I would attend with other friends, where we would play volleyball all day, and then go upstairs for food and music, and the women would all be getting pampered, with professional massages and manicures/pedicures.” He never witnessed any nefarious activities or immoral behaviour around Mr. Nygard, who was like a father-figure.

• Sidney Collie is a lawyer in The Bahamas. He has acted as a lawyer for Mr. Nygard in disputes related to Nygard Cay since 2005. He wrote that Mr. Nygard’s name is synonymous with “philanthropy, community engagement, and youth and sports” in The Bahamas. He described Mr. Nygard’s many acts of charity to young indigent athletes, and support for local churches and NGO’s.

• Bianca McKinney met Mr. Nygard at a party in Los Angeles. They became good friends. Mr. Nygard hired Ms. McKinney as a model. She noted that he hired her when being a Black model was not common. Ms. McKinney later suffered from a spinal cord injury that disabled her. Mr. Nygard helped to care for her and encouraged her. Ms. McKinney wrote that she never saw Mr. Nygard force himself on any woman and she believes that the convictions do not reflect his true character.

• Carlos Mackey is a sportscaster and friend of Mr. Nygard’s. He has interviewed Mr. Nygard many times. He described Mr. Nygard as a visionary, philanthropist, humanitarian, and logistics genius. He also described, in detail, some of Mr. Nygard’s charitable donations to worthy sports-related causes in The Bahamas. He also described how Mr. Nygard paid for his cancer treatments at the Mayo Clinic in Jacksonville, Florida, in 2011. He has only seen Mr. Nygard treat women with respect and has never seen Mr. Nygard act inappropriately with underage girls.

• D.L. is a former girlfriend of Mr. Nygard’s. She has known him for over 30 years. She testified during the trial. Her identity is covered by a publication ban. D.L. described Mr. Nygard’s good character. She described how during his business trips Mr. Nygard was honoured for his contributions to various countries – she mentioned Sri Lanka and Hong Kong. She described his many donations to charities. He was particularly helpful and generous when her son died.

• Gerald Brunskill is a film and television producer. He met Mr. Nygard at a “longevity and life extension conference”. Given Mr. Nygard’s wealthy bachelor lifestyle, he thought that he would be a compelling subject for a documentary series. He spent much time filming Mr. Nygard, including at his “pamper parties”. Mr. Brunskill observed that Mr. Nygard surrounded himself with beautiful women, some of whom were paid models. His observation was that the unpaid beautiful women were there by choice. He never observed Mr. Nygard with an underage girl, or anyone who appeared to be drugged.

• Greg Fenske is a friend and former employee of Mr. Nygard. Mr. Fenske submitted what is best described as a c.v. for Mr. Nygard setting out his many business accomplishments, awards, and charitable works. Mr. Fenske was part of an extradition bail scheme that Justice Greenberg of the Manitoba Court of Queen’s Bench rejected. Mr. Fenske was put forward to be a surety and pledged a house that was in his name but paid for by Mr. Nygard. Justice Greenberg found Mr. Fenske not to be credible. She also stated that his “less than candid evidence” raised questions about his trustworthiness: United States v. Nygard, 2021 MBQB 27 at paras. 22-23. It is rather surprising that Mr. Nygard would offer up Mr. Fenske as a character reference, although to be fair he did little more than simply set out Mr. Nygard’s business accomplishments.

• Jose Mari Vasquez worked as Mr. Nygard’s assistant for many years. She described him as a hardworking employer who treated his employees well. She has a high regard for him and believes him to be a person of good character. She also stated that she never observed any underage girls at his properties. She could not recall any sexual harassment or sexual assault mentioned by any of the women she worked with or who visited the company.

• Mark Gelazela is a former officer in the U.S. Marine Corps. He was a frequent guest at Mr. Nygard’s parties and volleyball sessions. He observed Mr. Nygard pay for medical and dental expenses for many friends and donate large amounts of money to charity. He states that Mr. Nygard is not a “self-absorbed jerk” like many wealthy people he knows. Mr. Gelazela has never observed Mr. Nygard engage in sexually inappropriate behaviour. In fact, Mr Gelazela, as a former Marine, says that having been shot at makes a person a good judge of character and on that basis, he vouches for Mr. Nygard. While I respect Mr. Gelazela’s service, I disagree that being shot at makes a person a better judge of character.

35I take these letters attesting to Mr. Nygard’s character into account. I accept that Mr. Nygard has generously donated to charity. I also accept that he has done many acts of kindness for people, such as paying for their medical treatments or helping them through their disability. A person is always more than just the crimes that they have committed. Although I acknowledge that a number of these letters are from people who knew Mr. Nygard after the assault of M.N., and thus from later in his life, I also take them with a grain of salt. I give them limited weight for four reasons.

36First, most of these letters are not character references. They are promotional material.

37Second, many of these letters are from business associates or persons who have benefitted financially from being around Mr. Nygard.

38Third, virtually all the writers say that they have never seen Mr. Nygard abuse a woman or an underage girl. Those are meaningless observations and carry no weight. As the Supreme Court of Canada has noted, sexual offences generally take place in private: R. v. Profit, 1993 CanLII 78 (SCC), [1993] 3 S.C.R. 637. Obviously, none of these people observed Mr. Nygard sexually assault the victims in this case because they occurred in a private space where he controlled access. It is obvious that Mr. Nygard, in a wrong-headed attempt to re-litigate the issue of his character, encouraged the letter writers to make these observations since they are consistent in virtually every letter. It is not a mitigating factor Mr. Nygard can point to the many women he did not rape.

39Fourth, and most importantly, Mr. Nygard used his wealth, power, and profile to prey on his victims. The Court of Appeal recently stated in R. v. B.R., 2024 ONCA 424 at para. 19:

As this court has recognized on several occasions: prior good character evidence has limited significance when sentencing someone for a sexual offence because their background, and reputation, often “helps enable” its commission: R. v. M.V., 2023 ONCA 724, at para. 69; and, albeit in another context, an “offender’s prior good character and standing in the community are to some extent the tools by which they commit” their offences: R. v. Drabinsky, 2011 ONCA 582, 107 O.R. (3d) 595, at para. 167.

40See also R. v. Garrett, 2014 ONCA 734 at paras. 18-19.

41The result is not that the court must balance the good that Mr. Nygard has done against the offences he has committed. That might be the calculus in other cases. That is not the calculus here. One of the reasons that Mr. Nygard was able to commit these offences was because of his high status in the community. As his references make clear, his wealth, power, and status gave him access to young women that he could prey upon. He would not have met K.R. and K.H. unless he was engaged in travel to the Caribbean with his entourage. He would not have met N.G. unless he was at a popular nightclub with a famous fashion model. He used his impressive building, the prospect of travel on a private plane, and his obvious wealth and status in sexual assaulting M.N.

42Accordingly, while I consider Mr. Nygard’s success, his generosity to his friends, and his many contributions to charity, I only give these things limited weight.

9. Aggravating Factors

43The chief aggravating factors in this case are the violence, degradation, and duration of the sexual assaults, the manipulations used to get the victims into the private apartment at 1 Niagara Street (M.N. excepted), and the effects on the victims.

44All sexual assaults are inherently violent, but some assaults employ more violence than others. Mr. Nygard violently subdued K.H., N.G., and K.R. Mr. Nygard did this by using his physical strength and power. The sexual assault of M.N. involved Mr. Nygard and another man using physical strength to hold M.N. – a 16-year-old girl – in a sexual position against her will and despite her protestations.

45The nature of the sexual assaults is also aggravating. All these assaults except the assault on K.H. involved forceful sexual intercourse by Mr. Nygard with his penis. The assault on K.H. involved violent digital penetration. I have no doubt that the sexual assault of K.H. would have proceeded to forceful sexual intercourse if Mr. Nygard had not been interrupted.

46All four sexual assaults involved the deliberate degradation of the victims. Mr. Nygard degraded K.R. as a “cock-tease” who was wasting his time. He degraded N.G. by invoking her mother because she dared to resist him. He told K.H. it was her lucky day because the sexual assault was interrupted and then he casually offered her a new shirt to replace the one he ripped. He degraded M.N. by making comments about her vagina, as if she were simply a toy for his pleasure. All sexual assaults obviously involve an element of humiliation and degradation for the victim. That is an important reason why they are so psychologically damaging. I am satisfied beyond a reasonable doubt, however, that Mr. Nygard went beyond the ordinary (if that is the right word) humiliation associated with his sexual assaults. He went further and intentionally humiliated and degraded each victim.

47It is also aggravating that Mr. Nygard used manipulation to get three of the victims into his private apartment. With N.G. and K.H. he dangled the prospect of employment or mentoring to get them to come to 1 Niagara Street. With K.R. he invited her in for a drink after a date – but it is not as if he invited her to his apartment, made a sexual advance, was rebuffed, and respected K.R.’s wishes. He invited K.R. to his private apartment with the intention of sexually assaulting her.

48The fact that these sexual assaults occurred over time is also aggravating. The first assault was in 1989. The last assault was in 2004 or 2005. This duration means that Mr. Nygard did not moderate or change his behaviour. That is one of the reasons I describe him as a predator.

49M.N.’s age at the time of the sexual assault is especially aggravating. Indeed, it is a statutory aggravating factor: Criminal Code, s. 718.2(a)(ii.1). M.N. was a girl of 16. Mr. Nygard was 62 or 63. I am satisfied beyond a reasonable doubt, based on all the circumstances, that Mr. Nygard knew M.N. was under 18 or was wilfully blind to the fact that she was under 18. Wilful blindness imputes knowledge to a person where their suspicion is aroused to the point where further inquiries are required, but the person deliberately fails to make them because they don’t want to know the truth: R. v. Briscoe, 2010 SCC 13 at para. 21; R. v. Farmer, 2014 ONCA 823 at paras. 22-25. There is no evidence that Mr. Nygard was part of any subterfuge to get M.N. to 1 Niagara Street. Once she was there, he was faced with a person who was obviously very young. I have no doubt that he failed to make inquiries because he did not want to be fixed with knowledge of M.N.’s actual age. The nature of the sexual assault is also highly aggravating – Mr. Nygard did not just assault M.N., he forced her into group sexual activity. He treated her as a toy for the sexual benefit of himself and his guests.

50The effects on the victims are also aggravating. The three victims who provided victim impact statements described the devastating effect of these sexual assaults – effects felt over the course of many years.

10. Was Mr. Nygard In A Position Of Trust?

51Crown counsel argued that Mr. Nygard was in a position of trust towards each of the complainants. Each complainant, he argued, was in a position where Mr. Nygard could control them.

52I do not agree. I am not satisfied beyond a reasonable doubt that a relationship of trust existed with any of the victims. In R. v. Aird, 2013 ONCA 447 at paras. 28-29 Laskin J.A. set out the elements of a trust relationship:

• The age difference between the accused and the young person;

• The evolution of their relationship;

• The status of the accused in relation to the young person;

• The degree of control, influence or persuasiveness exercised by the accused over the young person; and,

• The expectations of the parties affected, including the accused, the young person and the young person's parents.

53The Aird factors have been widely applied in cases involving sexual abuse. See: R. v. M.M., 2022 ONCA 441 at para. 7; R. v. R.S., 2023 ONCA 626 at para. 42. In R. v. C.B., 2024 ONCA 160 both the majority and dissenting judgments applied the Aird factors at paras. 39-40 and 59-61 (although they came to different results). The Aird analysis is not limited to family relationships: R. v. C.D., 2023 ONCA 790 at para. 26.

54In this case, the status of the accused in relation to the victim, the degree of control or influence by the accused over the victim, and the expectations of the parties are the most important factors. In each case, Mr. Nygard and the victims were arms-length parties. Mr. Nygard used the prospect of a dating relationship, employment, or mentorship. There was an obvious power imbalance between Mr. Nygard and the victims, but a power imbalance is not the same thing as a position of trust. Mr. Nygard did not control the movements of the victims prior to the assault. Each victim willingly came to 1 Niagara Street for an explicitly non-sexual purpose. Mr. Nygard may certainly have duped them (M.N. excepted) but that does not mean he was in a position of trust. M.N. was a young person but not a young person in the care of Mr. Nygard. M.N. was brought to 1 Niagara Street there by a man she was dating. Although there was a power imbalance, there was no trust relationship.

11. K.R.’s Decision In 1998 Not To Pursue Charges

55In 1998 K.R. disclosed to a friend that Mr. Nygard had sexually assaulted her. The friend had a connection to the Toronto Police. He encouraged K.R. to report the sexual assault. On July 24, 1998, K.R. gave a statement to two police officers, Detective Crone and Detective Constable Barsky.

56K.R. subsequently ceased cooperation with the Toronto Police. Although there is evidence that Mr. Nygard took steps to intimidate K.R., the Crown’s position is that there is not enough evidence to find that Mr. Nygard did so beyond a reasonable doubt. It is not, therefore an aggravating factor.

57I agree with the Crown that there is insufficient evidence to find beyond a reasonable doubt that Mr. Nygard took steps to intimidate K.R. into withdrawing her cooperation with the police – although I think that Mr. Nygard probably did so. I think it is important, however, to mention this incident for another reason. The victims were generally fearful that Mr. Nygard would use his power, wealth, and influence to crush them and intimidate them if they went to the authorities. This incident shows that those fears were far from groundless.

58In August 1998 a reporter from a Finnish magazine contacted Detective Crone. The reporter was aware that there was a Toronto Police investigation involving Mr. Nygard. A lawyer in Winnipeg named Richard Goode also called Detective Crone. Mr. Goode was one of Mr. Nygard’s lawyers. Detective Crone confirmed to Mr. Goode that they were in the early stages of the investigation. She also told him that news of the investigation had not leaked from the police. Shortly after that Detective Crone’s unit commander called her in to discuss the investigation. The unit commander told her that a man named Brian Evans was in Toronto asking for an update. According to the unit commander Mr. Evans was Mr. Nygard’s head of security in Winnipeg.

59On August 13, 1998, a front desk clerk at the Toronto Police headquarters told Detective Crone that Mr. Evans was at the front desk. He wanted to see her. She was dealing with another matter and did not meet him. The next day, August 14, 1998, she met with her unit commander as well as Jerry Wiley, the general counsel of the Toronto Police Service, about the Nygard investigation. On September 21, 1998, Detective Crone called K.R. because Mr. Evans was in Toronto. Detective Crone wanted to make K.R. aware that Mr. Evans was meeting with the police and making enquiries.

60K.R. testified to the jury that she received a call from a male police officer – not one of the officers who had interviewed her – 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. K.R. is almost certainly in error about who called her. It was undoubtedly Detective Crone who called her. That error is not relevant. The call was obviously deeply unsettling and caused K.R. to fear for her life. She ceased her cooperation with the Toronto Police.

61Mr. Nygard testified that he only learned later that Mr. Goode sent a security person to Toronto to see if he could assist the police. He testified that he did not direct the security person to make inquiries and did not receive any further information about any other Toronto investigation between 1998 and his arrest in 2021. I do not believe Mr. Nygard but not believing him is not the same as making a positive finding of fact that he interfered with the investigation. I find it inconceivable that between enquiries from a Finnish newspaper and articles in Frank magazine Mr. Nygard had no knowledge of the investigation. Mr. Goode, his lawyer, certainly knew. I also find it extremely unlikely that Mr. Goode would have called the police and then sent Mr. Nygard’s head of security without any instructions from Mr. Nygard or at least informing him. Mr. Evans had enough influence that he was able to meet with the general counsel of the Toronto Police Service and Detective Crone’s unit commander. I do not believe that Mr. Evans flew to Toronto on a frolic of his own.

62Based on the whole of the evidence, including a careful observation of Mr. Nygard during his testimony, I do not believe that he would have had any scruples about interfering in a police investigation. Moreover, the notion that Mr. Nygard’s head of security came to Toronto to “assist” the investigation does not pass the laugh test. Mr. Evans was obviously not there to assist the police. He was there to assist Mr. Nygard. That, however, is not the key point for the purpose of these sentencing proceedings. The key point is that K.R. decided to cease cooperation with the police when she learned about Mr. Evans. She testified that she was afraid for her life.

63Whether or not Mr. Nygard instigated Mr. Evans’s intervention, it had the effect of intimidating K.R. It showed her that a powerful person with connections could have access to senior police officials. It gives a great deal of credibility to the fears expressed by the complainants in this case that Mr. Nygard could take steps to intimidate them if they went to the authorities.

12. Positions Of The Parties

64The Crown position is that a global sentence of 19 years is appropriate before the principle of totality is considered. This position reflects sentences of five years consecutive for the assaults on K.R., M.N., and N.G. as victims of forced sexual intercourse; and four years for the digital penetration of K.H. When the principle of totality is considered, as well as the mitigating factors, a global sentence of 15 years should be imposed. The Crown also requests the following ancillary orders:

• A 10-year weapons prohibition;

• A DNA order;

• A SOIRA, or Sex Offender Information Registry Order for life, or, in the alternative, for twenty years;

• A non-communication with each of the N.G., K.H., K.R., and M.N., the victims in this matter;

• A non-communication order with R.M., although the jury acquitted Mr. Nygard with respect to her;

• A non-communication order with Davie Gauthier, who testified on behalf of the prosecution;

• A standalone restitution order for a total of $12,000, or $3,000 for each victim.

65Ms. Wiebe, on behalf of Mr. Nygard, argues that given Mr. Nygard’s age and health issues I should sentence him to six years globally. When credit for pre-sentence custody is considered, including harsh conditions of custody, the remainder should be less than two years, with a recommendation that he remain at the Toronto South Detention Centre. She does not oppose the ancillary orders but argues that the appropriate SOIRA order is for 20 years rather than life. She also argues that any standalone restitution order must be for an ascertainable amount and cautions that the restitution order is not to be a form of punitive damages.

13. The Appropriate SOIRA Order

66Pursuant to s. 490.012(3) of the Criminal Code I must impose a Sex Offender Information Registry Act, or SOIRA order unless there is no connection between the making of the order and the purpose of assisting law enforcement; or, that the making of the order would be grossly disproportionate. The defence does not contest that a SOIRA order should be made. The only issue is the duration.

67A SOIRA order ends 20 years after it is made if the offence carries a maximum sentence of 10 or 14 years: Criminal Code s. 490.013(2)(b). The maximum penalty for sexual assault is ten years. Where, however, a person is convicted of more than one designated offence, as Mr. Nygard has been, a SOIRA order applies for life. The court must be satisfied that the offences “demonstrate, or form part of, a pattern of behaviour showing that the person presents an increased risk of reoffending by committing a crime of a sexual nature”: Criminal Code s. 490.013(3)(b). There are two parts to the analysis: a court must first determine whether there is a pattern of behaviour; and if there is, that the pattern of behaviour shows an increased risk of re-offending.

68I think there is no doubt that Mr. Nygard’s pattern of behaviour indicates that he is a sexual predator. As far as I am aware, the term “sexual predator” is not a clinical one, so I simply use it to mean an offender who preys on multiple victims. The real question is whether Mr. Nygard represents an increased risk of re-offending. The practical reality is that he is 83 years old. He is likely to remain in custody for a long time. His age and physical condition will make it difficult for him to violently subdue anyone. Accordingly, I decline to order a lifetime SOIRA order. Mr. Nygard will be subject to a 20-year SOIRA order: Criminal Code, s. 490.012(4).

14. Standalone Restitution Order

69The Crown seeks a stand-alone restitution order against Mr. Nygard in relation to each victim. The Crown argues that all the victims suffered harm. The three victims who submitted victim impact statements all indicated that they had spent time in therapy. Two victims, N.G. and K.R., indicated in their statements that they had also lost income from being forced to take time off work. The Crown argues that I should presume that they have suffered financial loss and impose a modest amount as restitution.

70While I accept that all of the victims have suffered harm, a standalone restitution order is not available on the evidence before the court, and I cannot make one.

71Pursuant to s. 16 of the federal Victim’s Bill of Rights every victim has the right to apply for a restitution order against the offender. Pursuant to s. 21, every Act of Parliament is to be construed and applied in a manner compatible with a victim’s rights. Subsection 738(1)(b) of the Criminal Code states that where an offender is convicted of an offence a court may order restitution:

738(1)(b) … in the case of bodily or psychological harm to any person as a result of the commission of the offence… by paying to the person an amount not exceeding all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable…

72In R. v. Capehart, 2024 ONSC 3651 MacArthur J. ordered restitution in the amount of $3000 although there was no formal application filed and no documentary evidence was filed. She found that the amount represented a standard, and therefore ascertainable sum.

73Based on my interpretation of s. 738(1)(b) of the Criminal Code there are three elements that must be met before I can order restitution:

• There must be bodily or psychological harm to the victim;

• The amount must not exceed all pecuniary damages including loss of income or support; and,

• The amount must be readily ascertainable.

74The factors that a court must consider before making a restitution order were canvassed by Weiler J. in R. v. Castro, 2010 ONCA 718 at para. 24, relying on R. v. Zelensky, 1978 CanLII 8 (SCC), [1978] 2 S.C.R. 940 and quoting Labrosse J.A. in R. v. Devgan (1999), 1999 CanLII 2412 (ON CA), 44 O.R. (3d) 161, 136 C.C.C. (3d) 338. I set out just a few relevant considerations:

1. An order for compensation should be made with restraint and caution;

2. A sentencing judge should consider:

(ii) whether civil proceedings have been initiated and are being pursued; and

3. 4. A compensation order should not be used as a substitute for civil proceedings. Parliament did not intend that compensation orders would displace the civil remedies necessary to ensure full compensation to victims.

75A victim may complete Form 34.1 setting out the particulars of a victim’s pecuniary loss: Criminal Code, s. 737.1(4).

76The British Columbia Court of Appeal interpreted the phrase “readily ascertainable” in R. v. Davidson, 2018 BCCA 392. The victim applied for $47,000 in restitution but for things wholly unrelated to the assault. The Crown and the offender opposed a restitution order. The trial judge ordered $50,000 in restitution anyway. In the Court of Appeal, the Crown conceded that the trial judge had erred. There was no evidence for the loss, such as receipts or invoices, and no evidence of a causal connection between the loss and the offence.

77Based on victim impact statements and trial testimony I have little trouble finding on a balance of probabilities that all four victims suffered psychological harm, and in the case of K.H. and M.N. bodily harm that was more than trifling. I cannot, however, find that the losses are readily ascertainable.

78During the trial, K.R. testified that she was in therapy in Los Angeles for four years. In her victim impact statement, she described being forced to take time off work to deal with the trauma; being on a regimen of anti-depressants and other medications; and being treated by therapists and psychologists. I have no doubt that she has suffered grievously and that her suffering is causally connected to Mr. Nygard’s sexual assault. There is no evidence, however, of an amount that is readily ascertainable such as might have been entered on Form 34.1. I accept that it is likely that it would be difficult for K.R. to access receipts and documents from the early 1990’s, not long after the offence, given the passage of time. I simply do not know if she had insurance that covered out-of-pocket expenses, or what those expenses were; and I do not think I can simply assume that they were not covered. K.R. is not without a remedy – she is a plaintiff in the class action lawsuit in the United States.

79K.H. indicated in her victim impact statement that she received therapy from Shannon Moroney. When she was younger, she did not have the means to go to therapy. M.N. did not file a victim impact statement but testified that she received therapy from Shannon Moroney. It is my understanding that Ms. Moroney’s assistance was funded by an NGO in the Bahamas. As with K.R., I have no doubt that both have suffered trauma as a result of Mr. Nygard’s sexual assaults, but it is not clear to me that either victim is out of pocket. Since there is no amount that is “readily ascertainable” I cannot order restitution. Like K.R., K.H. and M.N. are not without a remedy – they are also plaintiffs in the class action lawsuit in the United States.

80Regarding N.G., I also do not doubt that she has suffered and that her suffering is causally connected to Mr. Nygard’s sexual assault. She described what has happened to her quite eloquently in her victim impact statement. She indicated both in her testimony and in her victim impact statement that she obtained counselling and therapy from the Los Angeles Rape Treatment Centre. Again, it is not clear to me whether N.G. is out of pocket. Since there is no amount that is readily ascertainable, I cannot order restitution.

15. Mr. Nygard’s Age And Health

81The defence argues that Mr. Nygard’s failing health is an important mitigating factor. Mr. Nygard’s fall from grace, as Ms. Wiebe puts it, has been total. He went into custody as a healthy 79-year-old and is now a frail 83-year-old. His deterioration has been marked and substantial. Much of that is due to harsh conditions of custody and the failure of the jail authorities to properly care for him. Accordingly, he should be entitled to a significant amount of credit for harsh conditions of custody. Ms. Wiebe also argues that federal correctional authorities will not care for him properly, which is why I should recommend that he remain at the Toronto South Detention Centre to serve the remainder of his sentence. The defence also points out that the principles of totality and rehabilitation require that the court not impose a sentence that is likely to exceed Mr. Nygard’s natural life span.

82The Crown argues that Mr. Nygard needs to demonstrate that his health issues cannot be properly addressed by the correctional authorities. There is no evidence that they cannot do so. Mr. Nygard is not unique – we all get old, and the correctional authorities are used to offenders serving life sentences. Crown counsel argues that Mr. Nygard’s health and age cannot lead to a sentence that is disproportionate.

83I make the following findings about Mr. Nygard’s age and health:

• While Mr. Nygard’s health appears to have deteriorated, I find that it is impossible to say how much is due to conditions of custody, or just the normal deterioration that might occur over the four years between ages 79 and 83, but as I will explain I do not agree that he has been subject to harsh conditions of custody;

• Mr. Nygard presents with almost all of the same medical conditions that he did before he went into custody;

• With some exceptions, such as for Mr. Nygard’s glaucoma and diet, not only has Mr. Nygard not been subject to harsh conditions of custody, he has received special treatment;

• Despite some evidence that federal correctional authorities have failed in some respects, there is no specific evidence that Mr. Nygard’s medical conditions cannot be properly cared for by the correctional authorities;

• There is some degree of exaggeration and malingering by Mr. Nygard; and,

• Mr. Nygard’s age, while a factor to be considered, cannot justify a sentence that is disproportionate to the gravity of the offence and the culpability of the offender.

(a) Mr. Nygard’s Health

84While Mr. Nygard has deteriorated in custody – although, as I will explain, I do not accept that it has deteriorated quite as much as he presents – it is a complex issue. I do not agree that his deterioration is principally due to harsh conditions of custody. No doubt jail is a hardship; it would be foolish to pretend otherwise. The reality, however, is that before he went into custody Mr. Nygard had most of the medical problems he has today. It would be unrealistic to expect that between age 79 and age 83 here would be no deterioration.

85Mr. Nygard self-reported that he was in excellent physical health prior to his incarceration. He says he weighed 195 pounds, and it was “mostly muscle” with a 34-inch waist. He says that he had reversed the aging process. Harvard University supposedly conducted a study on him when he was 76 years old and determined that his actual biological age was 56 years old. There is no documentary evidence to support this assertion. Mr. Nygard also attended something called RAAD Festival in 2016. The speakers at this “festival” apparently described how the aging process can be reversed and life radically extended. Mr. Nygard was invited to speak on something called “somatic cell nuclear transfer to reverse human cellular aging in vivo”. Mr. Nygard is obviously not an expert in molecular biology. The assertion that Mr. Nygard reversed the aging process cannot be taken seriously. No doubt his health and fitness improved when he started exercising and improved his diet. I doubt it is more complicated than that.

86As of January 9, 2024, Mr. Nygard weighed 165 lbs. which he attributes to diet and lack of exercise. It is not surprising that he has been unable to exercise. He says that he is now confined to bed. There is no evidence that conditions of incarceration have caused him to be confined to bed.

87While Mr. Nygard clearly has real health problems, he is also prone to hyperbole and exaggeration – witness his assertion that he had managed to reverse the aging process; or his assertion that if he were forced to be present in court it might kill him. I did require him to come to court. Fortunately, Mr. Nygard is still with us. Under those circumstances, I cannot discount the possibility of at least some exaggeration or malingering. At trial, Mr. Nygard presented as a man in his 80’s with health problems. For example, he needed assistance to walk, and he wore dark glasses because of the light. Nonetheless he was clearly bright and engaged with the trial process. His lawyers never suggested that he was incapable of giving instructions. During his testimony and since then he has displayed no signs of mental incapacity. After several days of testimony, he displayed no obvious signs of fatigue, and few things are more exhausting than being subjected to cross-examination. Shortly after the jury convicted him, however, I observed that he appeared to have suffered a shocking deterioration. None of the medical evidence, however, suggests that he developed a new or life-threatening condition. While I do not doubt that Mr. Nygard has deteriorated, I am somewhat skeptical about the he true depth of his health problems, especially when they are self-reported.

88Ashley Fouad, an associate at Ms. Wiebe’s law firm, filed three affidavits regarding Mr. Nygard’s health records. The sources of the affidavits were Mr. Nygard’s medical records or records of communications of counsel, or Mr. Nygard.

89Mr. Nygard was prescribed several medications to treat his conditions before he went into custody. A pacemaker was installed in 2017. In 2018 he had an MRI after complaining of memory loss. His pre-incarceration conditions and medications included the following:

• stroke prevention;

• treatment of type-2 diabetes;

• heart disease, high cholesterol, bradycardia (a slow heart rate) and triglycerides;

• urinary incontinence;

• low testosterone;

• enlarged prostrate;

• sleep disorders and anxiety;

• hyperthyroidism;

• pain management for his knee and his shoulder; and,

• high blood pressure.

90Mr. Nygard’s medication regime post-incarceration is very similar, with some fluctuations. He continued to take medication for conditions such as type-2 diabetes, enlarged prostate, bradycardia, sleep disorders, high blood pressure, muscle and joint pain, and cholesterol. He began taking medication for eczema. He says that the polyester sheets at the institution have caused rashes. Mr. Nygard has also complained of low blood pressure, but nothing has been done about this condition. In truth, Mr. Nygard’s blood pressure had fluctuated, according to the medical records. He has experienced both high and low blood pressure. Medical records indicate that he has been on blood pressure medication prior to incarceration and remains on it. Mr. Nygard has also complained of dizziness and the inability to move more than a few steps without assistance. This has made it difficult to use the toilet and requires the use of adult diapers. However, Mr. Nygard was on medication for incontinence prior to incarceration; he also had an MRI for dizziness issues in 2016 – again, prior to incarceration.

91Mr. Nygard has complained of joint, back, and muscle pain while in custody. He has seen a chiropractor and a physiotherapist and been prescribed anti-inflammatory medication. In January 2024 he was prescribed a special chair for his back pain. He has also been prescribed a special wheelchair. He uses a special bed that allows him to sleep at a 30-degree angle. He was also prescribed back and knee braces, but these have not been provided to him due to security concerns. Although it appears that his muscle and back pain is worse, he did have these conditions when he went into custody.

92Mr. Nygard has claustrophobia. He developed this condition after dreaming of being buried alive in a coffin. During the trial, and since, he has been brought to court in a regular vehicle, rather than the usual prisoner transport wagon. In a prisoner wagon two or more prisoners usually sit on hard stainless-steel benches in a cage. Obviously, transportation in a regular vehicle is considerably more comfortable. On some occasions Mr. Nygard has not been transported in the non-claustrophobic transport, but it is not clear to me what that consisted of.

93After reviewing the correspondence and the medical records, I find that the jail authorities have not properly addressed some of Mr. Nygard’s problems. He requires a special diet because of his type-2 diabetes. He has only been able to sporadically have this diet. Regular food is inconsistent with his dietary needs. Mr. Nygard’s lawyers have consistently called attention to this problem. He has purchased items at the canteen to substitute for his improper diet. There have been occasions, however, when his canteen order has not been filled and he has been undernourished.

94Mr. Nygard was diagnosed with glaucoma in 2016. Glaucoma is a degenerative eye disease. Lasik surgery was performed on his left eye while he was in custody in Winnipeg. He was scheduled for surgery in 2021 which did not happen for unexplained reasons. He was rescheduled for surgery in 2023 but that had to be postponed because of the ongoing trial. His lawyers have made persistent attempts to ensure that his glaucoma be treated. It is not clear to me why Mr. Nygard was not taken for his other eye operation prior to the 2023 trial. Moreover, according to emails from his counsel, there have also been difficulties with making sure Mr. Nygard has the appropriate eye medication. It also took far too long for him to be issued anti-glare glasses: the anti-glare glasses were prescribed in September 2023, and it appears he did not receive them until December 2023. Mr. Nygard reported significant pain from light. He has had to use makeshift eye shades as well as special tinted glasses.

95No doubt Mr. Nygard would have had access to more resources and would have been more comfortable outside of jail, as would most people. He is in custody because he was found to be a flight risk by Justice Greenberg in Manitoba and Justice of the Peace Scarfe in this provicnce: R. v. Nygard, 2022 ONCJ 20. Mr. Nygard has never brought a bail review based on a material change of circumstances.

96There is no evidence, other than in dealing with his eyes and diet, that the jail authorities have failed to give him his medications or failed to bring in doctors, chiropractors, or physiotherapists when Mr. Nygard has required them. Coping with aging, either of oneself, a spouse, or parents is among the most common of human experiences. No expert medical evidence is required to know that aging takes a toll and that age-related conditions vary from person to person. Mr. Nygard will obviously continue to deteriorate, jail or no jail. He is paying the same bill that every one of us must eventually pay.

97Despite some failures by the jail authorities, what does emerge from my review of the evidence is that Mr. Nygard has not been subjected to harsh conditions of custody. I have reviewed the many of pages of correspondence between Mr. Nygard’s team of lawyers and the correctional authorities. That correspondence is remarkable. It is replete with Mr. Nygard’s lawyers drawing the attention of the correctional authorities to Mr. Nygard’s issues. As noted, some of Mr. Nygard’s medical problems have not received the attention that they require. That said, the correctional authorities have been remarkably responsive to each concern raised by Mr. Nygard’s lawyers. I doubt if any inmate in Ontario has ever received the care and attention that Mr. Nygard has received. Over the course of many years as a judge and a lawyer I have reviewed many, many jail records. I have never seen jail records with anything like the attention paid to one single inmate. Mr. Nygard has received not just special treatment, but it appears very special treatment indeed. As Ms. Wiebe concedes, the staff at the TSDC have been very accommodating. For example, Mr. Nygard says that he must keep the lights off in his room. He finds light to be very painful. To accommodate him, the staff have used flashlights. Mr. Nygard requires assistance to bathe and go to the washroom. His meals are brought to his bedside. He has unlimited access to a telephone. If he were on a regular prisoner range, he would be required to wait for access to communications and access to the phone would have been dominated by others. As a trial judge who regularly hears criminal matters, I frequently hear of problems experienced by people in custody: lack of access to showers, clean clothing, or healthy food; lack of access to communications such as the phone; double or triple bunking; sleeping on the floor; intimidation and violence from other inmates; and long periods of lockdown. Mr. Nygard has experienced virtually none of these hardships.

(b) The Ability of Correctional Services To Care Properly For Mr. Nygard

98The real question is whether there is evidence that the authorities cannot properly care for Mr. Nygard: R. v. H.S., 2014 ONCA 323 at para. 38. Ms. Wiebe submitted three documents to show that the federal correctional authorities will not be able to care for him properly.

99The Pains Of Incarceration: Aging, Rights, and Policy in Federal Penitentiaries by Professor Adelina Iftene of Dalhousie Law School was published in January 2017. The paper presented the findings of a study of 197 older male prisoners over age 50. The conclusions include:

• Canada has been slow to deal with problems associated with an aging prison population;

• The Correctional Investigator has highlighted these problems in several reports;

• Many international studies have shown that elderly prisoners have the physical and psychiatric problems of people in the community who are 10 to 15 years older, usually based on the rigours of incarceration and the consequences of previous lifestyles;

• The medical needs of older prisoners, particularly pain management, were not met; and,

• Many of the recommendations of the Correctional Investigator have not been followed.

100I note that if Mr. Nygard presents with the problems of a person who is 10 or 15 years older, it is not because of the rigours of incarceration and the consequences of previous lifestyles. Prior to his current predicament he has never been in jail. As well, unlike so many incarcerated people, Mr. Nygard did not lead a life that involved substance abuse and seems to have made healthy lifestyle choices.

101End Of Life Care For Federally Incarcerated Individuals in Canada, by Professor Iftene and Professor Jocelyn Downie, also of Dalhousie Law School, was published in 2020. The paper dealt with multiple questions involving the death of federal prisoners, such as the options available for palliative care, MAID, and the responsiveness of the correctional authorities. The main conclusions of the paper are these:

• There is a paucity of information about end-of-life care in federal institutions, but the information available indicates that there are real concerns;

• It is a significant issue, because in 2016-2017 24.7% of federal prisoners were over 50, and 46% of federal prisoners were serving life or indeterminate sentences;

• Temporary absence is the most common reason for receiving end-of-life care in the community;

• Correctional Service of Canada should take more meaningful steps to ensure that offenders can receive end-of-life care in the community where they do not pose a risk.

102Some of the information revealed in End Of Life Care is useful. Under a Commissioner’s Directive issued under the authority of the Corrections And Conditional Release Act prisoners may be granted escorted or unescorted temporary absences – theoretically for an unlimited time for medical examination or treatment. There is a structured process in place for considering and granting these absences. The criteria for granting a temporary absence include the risk to the community and the inmate’s behaviour serving sentence. It is obvious that Mr. Nygard is likely to be a good candidate for temporary absences for medical reasons.

103Aging And Dying In Prison: An Investigation Into The Experiences Of Older Individuals in Federal Custody, was a joint study conducted by the Correctional Investigator and the Canadian Human Rights Commission. It was published in 2019. It is a lengthy and detailed. It found a general failure by the Correctional Service of Canada to meet its obligation to properly care for elderly prisoners. The key findings of the survey are:

• The number of federal inmates over 50 has increased significantly;

• More offenders are sentenced later in life. Convictions for historic sexual offences have had an impact on this statistic (Mr. Nygard being an obvious example);

• Some offenders are being “warehoused” beyond their parole eligibility dates;

• There is no legal or policy recognition that older inmates have special needs;

• The infrastructure of penitentiaries does not meet the needs of older inmates; and,

• Many offenders die in prison without adequate community palliative care options.

104The survey seems to have given little or no weight to s. 121(1) of the Corrections And Conditional Release Act. That section states:

121 (1) Subject to section 102… parole may be granted at any time to an offender

(a) who is terminally ill;

(b) whose physical or mental health is likely to suffer serious damage if the offender continues to be held in confinement;

(c) for whom continued confinement would constitute an excessive hardship that was not reasonably foreseeable at the time the offender was sentenced; or

(d) who is the subject of an order of surrender under the Extradition Act and who is to be detained until surrendered.

105Section 121(2) states that s. 121(1) does not apply to offenders serving a life sentence as a minimum sentence or an indeterminate sentence. The survey noted that about half of elderly offenders are serving life or indeterminate sentences (which does not apply to Mr. Nygard). The survey also noted that in a previous survey the criteria employed by the National Parole Board for implementing s. 121(1) for granting compassionate release to a terminally ill offender were onerous. The Board loosened its criteria. After the change more prisoners were released. The survey gave no consideration to offenders who were released under the other provisions of s. 121(1) since it concentrated on end-of-life situations. There is no evidence one way or the other before this court about how Correctional Services Canada implements subsections dealing with the other criteria for release.

106In other words, while I find these studies to be useful, notwithstanding that they are somewhat dated, they do not provide compelling evidence that the federal correctional authorities will be unable to deal with Mr. Nygard’s specific health issues. As well, there is no evidence that the authorities will not be able to grant temporary absences to Mr. Nygard if he requires them. There is no evidence that he cannot get an appropriate diet for his Type-2 diabetes in federal custody. He needs an eye operation, and there is no evidence that he will be unable to obtain temporary release for it.

107In any event, I reject the argument that because there have been failures by the Correctional Services to adequately deal with older prisoners a penitentiary sentence should not be imposed. Surely the remedy is not to impose a disproportionate sentence but rather to ensure that the correctional authorities comply with their obligations. Mr. Nygard, with his team of lawyers, will undoubtedly be just as assertive with the Correctional Service of Canada as they were with the provincial Ministry.

108Ultimately, I find that Mr. Nygard’s health is a matter for the correctional authorities: R. v. R.C., 2022 ONCA 389 at para. 10; R. v. Premji, 2021 ONCA 721 at para. 10. If the correctional and parole authorities do not respond appropriately, Mr. Nygard has other remedies: R. v. Morgan, 2020 ONCA 279 at paras. 9 and 12; R. v. Kanthasamy, 2021 ONCA 32 at para. 11.

(c) Mr. Nygard’s Age: Analysis

109Mr. Nygard’s age raises difficult and complicated issues. The fundamental principle of sentencing is proportionality: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of totality is a component of proportionality. A global sentence for consecutive sentences must not exceed the overall culpability of the offender. As well, the global sentence must not be so unduly harsh that it crushes any hope of rehabilitation: Criminal Code, s. 718.1, 718.2(c); R. v. Johnson, 2012 ONCA 339 at para. 18. There is no “senior’s discount” but a sentencing court must consider the offender’s age: R. v. Dimmick, 2015 ONCA 402 at para. 10. See also R. v. M.F., 2020 ONSC 998 at para. 35, appeal dismissed; R. v. M.F., 2022 ONCA 372; R. v. Premji, supra.

110Another principle is that a sentence should not surpass any reasonable estimation of an elderly offender’s remaining natural lifespan: R. v. C.A.M., 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 at para. 74. It is difficult to conceive of a sentence that would not exceed Mr. Nygard’s expected remaining lifespan – as Crown counsel points out, he is at or near the lifespan of the average Canadian male – but is still consistent with the fundamental principles of sentencing.

111When I consider proportionality, I find that Mr. Nygard is, to a significant degree, the author of his own misfortunate by being sentenced at the age of 83. Mr. Nygard committed these crimes in an era where wealthy, powerful men felt a kind of immunity. K.R.’s story, as I have mentioned, is a powerful illustration of the point. I watched Mr. Nygard testify. The jury rejected his evidence. I agree completely with the jury’s evaluation of his credibility. It was apparent to me – and I’m sure to the jury – that Mr. Nygard felt entitled to do whatever he wanted. It seems to me that Mr. Nygard has narcissistic traits: he his self-centred, self-involved, makes grandiose statements about himself, and has little or no empathy or self-awareness for his victims.

112For many years Mr. Nygard enjoyed the immunity that his position gave him. The victims felt constrained. They were terrified he would ruin their lives. Mr. Nygard knew Prime Minister Mulroney. He knew Pat Carney, at the time a senior federal cabinet minister. He received awards from foreign governments. It was only the changing social climate that encouraged his victims to come forward many years later. I recognize that the changing social climate has caused many people to come forward with allegations of historic sexual assaults. There is, however, a difference between ordinary people coming forward to make allegations about other ordinary people, and ordinary people coming forward to make allegations against a wealthy and powerful man, as this case illustrates. Were I to punish him less harshly than his moral blameworthiness calls for because he is now an elderly man, it would, in effect, validate the immunity that wealth and power have given him. In my view, it would be contrary to public policy. It would significantly devalue the importance of denunciation and deterrence. It would send the message that if you are rich and powerful and your victims are vulnerable, as K.R. was, you can escape accountability if you can hold off the day of judgment long enough. That is exactly the wrong message for the court to send. Although age is a factor that I must consider, there is a limit to the amount of weight I will give it.

16. Pre-Sentence Custody – “Summers Credit”

113Mr. Nygard was arrested on the Extradition Act provisional arrest warrant on December 20, 2020. He was detained pursuant to the extradition request of the United States. He was arrested on the charges before this court on October 28, 2021, when he was already in custody. As of the date of sentencing, September 9, 2024, he will have been in custody on these charges for 1047 days, or 34 months and 12 days – about a month and a half under three years. At 1.5:1 he is credited with 1571 days (rounded up): Criminal Code, s. 719(3.1) or about 52 months and one week, or 4 years, 3 months and one week: R. v. Summers, 2014 SCC 26.

114Ms. Wiebe argued that I have discretion to consider the time between December 20, 2020, and October 28, 2021, as a mitigating factor. With respect, I disagree. Section 719(3) of the Criminal Code states that a court may “take into account any time spent in custody by the person as a result of the offence…” A plain reading of s. 719(3) indicates that the court may consider time spent in custody only in relation to the charge upon which the offender is being sentenced. I do not see any discretion to take other time into account. I also do not see any unfairness. Mr. Nygard was not detained because of anything to do with an ongoing investigation in Toronto. He was detained because of an extradition request from the United States: R. v. Nygard, 2021 MBQB 27; R. v. Nygard, 2021 MBCA 27.

115Crown counsel argued that Mr. Nygard should receive credit for pre-sentence custody at the rate of 1:1, rather than the more usual 1.5:1 because he is also detained under the Extradition Act. In other words, even if he had received bail on these charges, he would have remained detained anyway. I must also respectfully disagree with that contention.

116In R. v. Meads, 2018 ONCA 146, Sharpe J.A. noted that credit for pre-sentence custody accounts for the fact that no credit is given towards parole eligibility or earned remission for time spent in custody. It would be unfair to those unable to obtain bail if this time did not count, since they would earn credit if they obtained bail and went into custody when sentence was imposed. It is now routine, and has been for some time, to credit offenders with for presentence custody at 1.5:1: R. v. Shaikh and Tanoli, 2024 ONSC 774 at paras. 16-18. As my colleague Molloy J. noted, offenders who did not get bail would simply spend more time in custody than similarly situated offenders who did. That would obviously be unfair. Moreover, counsel have informed me that if Mr. Nygard is convicted in the United States time spent in pre-extradition custody will not be considered by the U.S. District Court. There is no principled reason to depart from the practice of granting credit at 1.5:1.

17. Credit For Harsh Conditions Of Custody – “Duncan Credit”

117Ms. Wiebe argues that Mr. Nygard has been subjected to unusually harsh conditions of custody. He should, therefore, receive credit for those harsh conditions: R. v. Duncan, 2016 ONCA 754; R. v. Marshall, 2021 ONCA 344.

118With respect, I must disagree – with some exceptions. I have already set out what I believe is the evidence that Mr. Nygard has not experienced harsh conditions of custody, notwithstanding that not all his medical needs have been met. I have already found that Mr. Nygard has received special privileges. Mr. Nygard has been in the infirmary of the Toronto South Detention centre for the entirety of his stay. The infirmary is significantly more comfortable than the ordinary ranges. He has not been in the regular cells with regular inmates. He has not suffered the depredations that come along with lockdowns. It appears he has regular and constant access to the telephone – and certainly to email. Although he has complained of isolation, he has not been placed on a range in the general population – which for a man like him, is undoubtedly a significant benefit. I will take the failure of the authorities to deal with his glaucoma and his diet into account. I find, however, overall, that he has not been subjected to harsh conditions.

18. Principles Of Sentencing

119As noted, the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718. Other principles relevant to this sentencing include:

• Sentences should be increased or reduced to account for mitigating and aggravating factors;

• Consecutive sentences should not be unduly long or harsh;

• All available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims should be considered.

120The primary sentencing principles in penetrative sexual assaults are denunciation and deterrence: R. v. A.J.K, 2022 ONCA 487 where the Court of Appeal found that the starting point for penetrative sexual assaults is a sentence in the penitentiary of 3-5 years. See also: R. v. R.S., 2023 ONCA 608 at para. 22; R. v. S.W., 2024 ONCA 173 at paras. 32-33, 46. A conditional sentence for a penetrative sexual assault is rarely, if ever proportionate: R. v. R.S., at para. 4.

121The Crown pointed to several cases involving historic sexual assaults. I will only refer to a few:

• In R. v. Curto, 2008 ONCA 161 the complainant was an employee of the offender. He forced sexual intercourse on her 17 or 18 years earlier. The offender claimed the sex was consensual. The trial judge imposed a sentence of four years less pre-sentence custody. The sentence was upheld by the Court of Appeal.

• In R. v. Garret, supra, the offender and the complainant initially engaged in consensual kissing. The offender became rough with her, and she asked him to stop. He forced sexual intercourse. She was injured during what she described as a very forceful assault. After the assault, the police took photographs of her injuries. The trial judge found that the injuries were consistent with a sexual assault. The sentencing judge said the case was “unique” and sentenced the offender to 90 days intermittent. The Court of Appeal found that the trial judge erred in finding exceptional circumstances. The 90-day intermittent sentence was manifestly unfit. The Court substituted a sentence of 18 months, noting that it should not be taken as being within the appropriate range.

• In R. v. Epp, 2021 ONSC 2901, appeal dismissed 2022 ONCA 613, the complainant passed out on the offender’s couch. She was intoxicated. The offender sexually assaulted her. She suffered severe vaginal pain and intense trauma. The offender had a record that included convictions for assault causing bodily harm and aggravated sexual assault, for which he received a 6-year sentence. The fact that she was under 18 was a statutory aggravating factor. The Court of Appeal upheld the trial judge’s seven-year sentence.

• In R. v. E.M., 2024 ONCA 399, the offender pleaded guilty to sexually assaulting his intimate partner. He was sentenced to 2 ½ years incarceration. He sexually assaulted her while she slept, causing pain and discomfort. The Court of Appeal, citing A.J.K., upheld the sentence.

• R. v. R.C., 2020 ONCA 159, has some features in common with this case. The accused was a fashion photographer. He allegedly sexually assaulted young female aspiring fashion models. The accused said that he could help them in their careers. The jury convicted the accused of sexual assaults on two complainants. The trial judge imposed a global sentence of 51 months (four years and three months), less credit for pre-sentence custody and house arrest. The Court of Appeal upheld the sentence.

122The defence also provided a significant number of cases. I will refer only to the main cases Ms. Wiebe summarized in her helpful sentencing chart:

• R. v. McKnight, 2023 ABCA 72 has some similarities to this case. The offender worked in the bar industry. He used his business position to provide alcohol to women, invite them to his apartment, and then sexually assault them. He was convicted of five sexual assaults. The trial judge would have sentenced the offender to a global sentence 16.5 years but for totality. She reduced the sentence to 8 years. The Court of Appeal found that was manifestly unfit and raised the global sentence to 10 years.

• R. v. K.D., 2024 ONCJ 93: The offender was convicted of historic sexual assaults between 1979 and 1985. The victims were his niece and nephew, who were very young children under 10 at the time. He would have been between 18 and 24. A Gladue report was prepared. Obviously, the trial judge was required to apply the principles set out in R. v. Friesen, 2020 SCC 9, governing sentences for sexual offences against children. At the time of sentencing the offender was 62. The trial judge would have sentenced him to 7 years but given his age the global sentence was reduced to 6 years.

• R. v. Hernandez, 2019 ONSC 2800: The offender was a music teacher. He gave “healing” sessions with three complainants that involved sexual activity. He was 69 at the time of the offences. He was 73 at the time of sentencing. Hackland J. treated his age and pro-social antecedents as mitigating factors. He imposed a global sentence of four years. This case is also distinguishable on the basis that the offender did not use the violence and physical force, and none of the assaults appear to have involved penile penetration.

• In R. v. Jones, 2018 ONSC 3276, the offender was convicted of three sexual assaults, administering a noxious substance, and theft and fraud in respect of three complainants. Jones was a bishop at his church. All three victims were church members. He deceived one victim into handing over property and then inducing her to have sex to rid herself of a curse. He threatened another victim’s children to pressure her to have sex. He sexually assaulted a third victim after drugging her. Jones was 57 years old at the time of sentencing. Although this case was decided before A.J.K. the trial judge, Akhtar J., accepted that the proper range of sentence was three to five years. He found that there was an egregious breach of trust. He sentenced Jones to a global term of imprisonment of 8 ½ years.

123After reviewing the cases, I find that the appropriate range of sentence for the sexual assaults of K.H., K.R., and N.G. is in the of the range set out in A.J.K. I do not distinguish between the assault of K.H. and the other assaults. It may have involved digital, rather than penile penetration but it was still a penetrative assault causing great harm. Mr. Nygard surely would have gone further had he not been interrupted. Given the aggravating feature of M.N.’s age, the sentence for her sexual assault must attract a higher sentence.

19. Sentence Imposed

124As I stated at the beginning of these reasons, Mr. Nygard is a sexual predator. He used his position – as a fashion designer who travelled to exotic locations, owned luxurious residences, and frequented clubs with famous models – to take advantage of young women. He flattered them by telling them that they looked like or could be fashion models or that they dressed nicely. He flew business class with an entourage. He dangled the possibility of glamorous travel, employment, and business connections. Part of Mr. Nygard’s power included the fact that his private space at 1 Niagara Street was well equipped for non-consensual sexual encounters. Mr. Nygard could have had a luxury condominium or apartment in Toronto or even stayed in a luxury hotel during his visits. By using his private apartment in his own office building, he could regulate access and prey on his victims without the interference or observation of anyone he did not employ. Another aspect of his power was that victims were reluctant to go to the authorities.

125With respect, I cannot agree that a sentence of six years would be sufficient to meet the principles of denunciation and deterrence. Prior to considering the principle of totality I would have sentenced Mr. Nygard as follows:

• 4 years for the sexual assault on N.G.;

• 4 years for the sexual assault on K.R.;

• 4 years for the sexual assault on K.H.; and,

• 5 years for the sexual assault on M.N.

126That would, of course, yield a total sentence of 17 years. That sentence would clearly violate the principle of totality.

127Ultimately, I find that a global sentence of 11 years is appropriate. A global sentence of 11 years accounts for the mitigating and aggravating factors, including Mr. Nygard’s health, age, conditions of custody, eligibility for release, and the principle of totality as it applies to an 83-year-old man. A 11-year sentence works out to 4015 days. When I subtract the 1571 days of credit for pre-sentence custody, that leaves 2444 days, or about 6.7 years. A remaining sentence of about 6.7 years means that Mr. Nygard will be 89 at his warrant expiry date. In this case, however, a 11-year sentence does not necessarily mean that Mr. Nygard will be in jail on these convictions until he is 89. Leaving aside his other charges and the extradition proceedings, an offender in Mr. Nygard’s position is eligible to apply for full parole after serving one-third of his sentence and is eligible for day parole six months before that: Corrections And Conditional Release Act, s. 119(1)(c) and s. 120(1). A sentence commences on that day that it is imposed: Criminal Code, s. 719(1). That means that Mr. Nygard, with 2444 days left to serve (about 6.7 years) will be eligible for full parole in 814 ½ days (about 27 months from now). He will therefore be eligible for day parole about 21 months from now. Of course, Mr. Nygard may not be granted parole, but he will be eligible for it. And that, of course, is aside from the parole board’s jurisdiction to grant release under s. 121(1) of the Corrections and Conditional Release Act. Although sentencing cases rarely consider parole eligibility and the prospect of temporary absence, it is appropriate to do so in this case. I do so because the parole and release implications matter a great deal more when an offender is this old. They also matter because too much emphasis on the offender’s age would result in a sentence that was unfit.

128The sentence is imposed as follows:

• Count 1 – Sexual assault of N.G.: 2 ½ years or 912.5 days (which I will round down to 912 for the warrant of committal) with credit for 912 days, time served;

• Count 4 – Sexual assault of K.R.: 2 ½ years or 912.5 days (which I will round down to 912 for the warrant of committal) consecutive to count 1, with credit for 659 days, leaving 253 days left to serve to serve;

• Count 5 – Sexual assault of M.N.: 3 ½ years or 1277.5 days (which I will round down to 1277 days on the warrant of committal) consecutive to count 4;

• Count 6 – Sexual assault of K.H.: 2 ½ years or 912.5 days (which I will round down to 912 for the warrant of committal), consecutive to count 5.

129There will also be the following ancillary orders:

• A 10-year weapons prohibition on each count;

• A DNA order on each count;

• A SOIRA, or Sex Offender Information Registry Order for twenty years; and,

• A non-communication order with each of N.G., K.H., K.R., M.N., R.M., and David Gauthier.

130Although I cannot bind the correctional authorities, I will endorse the warrant of committal to recommend that Mr. Nygard be considered early on for temporary absences to deal with his medical issues, especially his eye surgery. I will also endorse the warrant of committal to recommend that the correctional authorities consider the application of s. 121(1) of the Corrections And Conditional Release Act.

R.F. Goldstein J.