Court File and Parties

Court File No.: CR-22-10000493-0000
Date: 2025-06-11
Ontario Superior Court of Justice

Between:
His Majesty the King
and
Peter Nygard

Applicant Counsel: Neville Golwalla and Ana Serban
Respondent Counsel: Brian Greenspan and Michelle Biddulph
Heard: October 30, 2023

Ruling on Character and Permitted Crown Cross-Examination
R.F. Goldstein

Introduction

[1] Peter Nygard was tried before a jury on five counts of sexual assault and one count of unlawful confinement. There were five complainants. He was convicted of four counts of sexual assault and acquitted of one count of sexual assault and one count of unlawful confinement.

[2] Mr. Nygard testified. After his evidence-in-chief, but prior to cross-examination, Crown counsel sought permission from the Court to cross-examine on several points. I ruled from the bench on several discrete points. Because of the fluid nature of the trial – really, any trial – the submissions of counsel and the ruling of the Court necessarily encompassed very granular details. I gave quick rulings from the bench on some points with brief reasons. I also gave a “bottom line” ruling on the critical underlying question on many of these points, which was whether Mr. Nygard had put his character in issue.

Rulings from the Bench

[3] The following were my rulings with reasons given orally:

Alcohol: Mr. Nygard testified in chief, in essence, that he was not much of a drinker and frowned upon excessive alcohol consumption. The Crown wished to cross-examine him on evidence that alcohol was a regular feature of his parties and his encounters with women. I ruled that there was a limited amount of relevance to the issue. I ruled that the Crown could simply put to him that he had open alcohol in some places and drank in others – and that he could be asked about alcohol in the private space at 1 Niagara Street – but that the Crown could not go beyond those limits.

Access to Records: Mr. Nygard testified in chief that he tried to get access to his records but was unable to because of a suspicious fire at his place of business in Winnipeg and because one of his servers was hacked. The Crown wished to cross-examine on materials from his extradition bail hearing in the Manitoba Court of Kings Bench and his bail hearing on these charges. The Crown wished to put to Mr. Nygard that someone acting on his behalf deleted documents and emails. The emails would have required reference to the fact that Mr. Nygard was in custody at different detention centres. The Crown argued that it was highly relevant to rebut Mr. Nygard’s assertion that he could not get access to his records. I ruled as follows:

In my view Mr. Nygard can be asked about the records that are referenced in the email dated November 11, 2021. It is unclear what records are involved here, at least from the face of the email, and Mr. Nygard will have the opportunity to explain whether the records are relevant to his travels and his meetings. In my view he can also be asked about records that were deleted by Mr. Fenske. I think both the email and the judgment contain material that is either irrelevant or the prejudicial effect outweighs the probative value – such as references to him being in custody – but the substance behind both documents in relation to the destruction of documents or access to documents are grounds for cross-examination. I am not going to permit the documents to be made exhibits, but the Crown can cross-examine on the substance. Mr. Nygard will have the opportunity in his testimony to explain if they have any connection to the documents he says were either destroyed in a fire or hacked.

Mr. Nygard’s Interview With The Police: Mr. Nygard was arrested in Winnipeg and transported to Toronto. He gave a lengthy statement to the Toronto Police. The voluntariness of that statement was admitted. The Crown wished to cross-examine Mr. Nygard on a point that was raised by his first lawyer and may have been communicated to that lawyer by Mr. Nygard. I did not permit the questioning and stated:

I think the real issue here is that the impeachment value of this evidence is very limited. Moreover, this was a comment by a lawyer in the context of filing materials in a bail hearing. I find that the probative value is very low. It is not certain exactly what Mr. Nygard told his lawyer, and it is clear that this was from a non-criminal lawyer prior to disclosure of the actual interview. I suspect that this is one of those things that can likely be called “mere puffery” in the context of a bail hearing. I am not going to allow questions on this point.

Oral Ruling Regarding Character

[4] After ruling on the discrete issues as set out above, I reserved overnight on the larger issue of whether Mr. Nygard put his character in issue.

[5] I then ruled on October 31, 2023, that Mr. Nygard had done so. This is what I said at the time:

The following is my ruling regarding the character issue. I will follow with detailed reasons for my ruling later.

Mr. Nygard is charged with 5 counts of sexual assault and one count of forcible confinement. There are five complainants. The Crown has closed its case. The defence has called two witnesses: Darlyene Lucchesi, a former girlfriend of Mr. Nygard, and Mr. Nygard himself. Mr. Nygard has testified in chief. The Crown has properly vetted some of its proposed areas of cross examination with me ahead of time.

The Crown argues that Mr. Nygard placed his character in issue. When asked whether he committed the sexual assaults, Mr. Nygard denied it. He also stated each time that it is not the sort of thing he would have done. He said each time that he knows that he would never have done that. At the end of his examination, he was asked how he was able to deny these allegations if he could not recall them. Mr. Nygard replied that the type of allegations that were said and were described was the type of conduct that he knows he has ever done and would never do.

I find that Mr. Nygard did put his character in issue. I quote from Watt’s Manual of Criminal Evidence, §31.02:

Where D has adduced evidence of good character, it is open to P to adduce evidence in rebuttal in an attempt to neutralize the exculpatory effect of the good character evidence. The evidence may take a variety of forms.

It is also open to P to cross-examine D on any evidence that D has given of specific acts of good character, also on specific acts of alleged bad character. Semble, D’s answers to questions concerning other specific bad acts are not subject to contradiction.

I also quote from The Law of Evidence In Canada, David M. Paciocco, Palma Paciocco, Lee Stuesser, at p. 106:

The accused can assert their good character when testifying. In Morris v. R., [1979] 1 S.C.R. 405 at para. 8, for example, the accused advised the jury that he had never been convicted or even arrested. The accused is even permitted to relate specific acts that suggest that they are not the kind of person to commit the offence. In R. v. Samuel (1956), 40 CrAppRep 8 (CCA), the accused, charged with larceny, testified that he twice found property and returned it.

When an accused person asserts their good character in either of these ways, even during cross-examination, they will generally be taken to have put their character in issue, thereby opening the door for the Crown to lead rebuttal evidence showing the accused is not of good character. The prerogative of asserting one’s good character can therefore operate as a trap for accused persons, opening the door to proof of bad character, although the trial judge retains the discretion to prohibit the rebuttal evidence if the accused has not made character an important issue…

When, then, will an accused person be taken to have placed their characters in issue? An accused will be taken to have done so only if they raise the issue by initiating evidence intended to suggest that they are not the type to commit the offence charged.

The more difficult question is the scope that is allowed to the Crown to cross-examine as a result. Simply putting character in issue does not open the door to an unlimited attack.

There are ten separate areas that the Crown has raised. The following are my individual rulings. I will provide reasons at a later time:

1. Obtaining the number from the 16-year-old runner at the London Olympics:

   • The Crown may cross-examine only on the point of obtaining the contact number of this person. The clip may only be shown if any reference to the woman’s age is edited, as well as any reference to “secret tapes” that is on the video. If it is not technically possible, I won’t let the Crown play the tape.

2. Berating evidence – from the clip:

   • The Crown is not permitted to use this evidence to cross-examine Mr. Nygard.

3. Berating evidence and not following the law – from the clip:

   • The Crown is not permitted to use this evidence to cross-examine Mr. Nygard.

4. Not following zoning laws and breaching court orders in The Bahamas:

   • The Crown is not permitted to use this evidence to cross-examine Mr. Nygard.

5. Paying out the women in the Manitoba Human Rights tribunal re: cooperation:

   • The Crown is not permitted to use this evidence to cross-examine Mr. Nygard.

6. The plane – the photo:

   • The Crown may use this photo to cross-examine Mr. Nygard.

7. The plane – the video walkthrough:

   • The Crown is not permitted to use this evidence to cross-examine Mr. Nygard.

8. Pornography:

   • The Crown may cross-examine Mr. Nygard about pornography being played in the Finland suite.

9. The Louis Bacon Lawsuit – Timelines:

   • The Crown may cross-examine Mr. Nygard about the timing of the first lawsuit.

10. The existence and number of complainants in the class action lawsuit:

    • The Crown may cross-examine Mr. Nygard on this point but may go no further than simply the number of complainants; it is my understanding that the Crown wishes to go no further in any event.

[6] What follows are my more extensive reasons in relation to matters 1-10, above, as well as my more extensive reasons on the character issue.

Background

(a) Procedural Background

[7] Peter Nygard was charged with five counts of sexual assault and one count of unlawful confinement. Jury selection commenced on September 11, 2023. The jury convicted Mr. Nygard of four counts of sexual assault on November 23, 2023. On September 9, 2024, I sentenced Mr. Nygard to a global sentence of 11 years in custody.

(b) The Crown’s Evidence

[8] By way of background, my summary of the Crown’s evidence is found in my Ruling On Count-To-Count Similar Fact Evidence, found at R. v. Nygard, 2024 ONSC 4263. That ruling should be read in conjunction with this one to provide context for the evidence, as should paragraphs 7 to 31 of my sentencing decision: R. v. Nygard, 2024 ONSC 4837.

(c) The Defence Evidence

[9] Broadly, Mr. Nygard denied each allegation of criminal behaviour. He stated, in response to each allegation of sexual assault, that it was not the sort of thing he would have done.

(d) Particulars of the Sexual Assaults And Mr. Nygard’s Response

(i) Sexual Assault of N.G.

[10] Mr. Nygard was charged with sexual assault and unlawful confinement of N.G. In 1987 or 1989 N.G. met Mr. Nygard at a fashion event at a club in Ottawa. Mr. Nygard recalled the club, but he testified that he did not know N.G. and did not recall ever meeting her. N.G. testified that she was in Los Angeles on a work trip when Mr. Nygard contacted her and arranged for her to meet him in Toronto. The meeting was ostensibly to discuss her future in the fashion industry. They met at a restaurant. After, he invited her for a tour of his building at 1 Niagara Street.

[11] While N.G. was sitting on the bed in the private space on the fifth floor of 1 Niagara Street Mr. Nygard lunged at her and managed to lay her down on the bed. Mr. Nygard testified that he did not lunge at N.G. because it was not the sort of thing he would have done. N.G. testified that she was quickly pinned down. Mr. Nygard managed to get the lower half of her clothing off. She was only wearing her bra and t-shirt. He kept asking her “why aren’t you cooperating?” N.G. testified that after Mr. Nygard got himself naked, he started performing oral sex on her. She kept saying “no, no”. She thought that if he wants, he can do it and then she could go. He was very burly and strong. He had no problem holding her down. He then turned her over and put her on all fours. He put his mouth on her anus. She tried to make it difficult for him. Then he put a finger in her anus. She said “no”. He then berated her for not cooperating, telling her: “why don’t you let me do this” and noting that other girls let him do it, including a famous person he mentioned. He was getting angrier and angrier. He then tried to penetrate her anus with his penis. It entered a little bit. She kept trying to move to reject him and he became angry and frustrated and turned her over. He put his penis inside her vagina and started to say, “your mom would be ashamed of you” and said, “you’re a young woman acting like a silly girl”. She felt devastated, as she has a very close and adoring relationship with her mother. N.G. further testified in chief that before he inserted his penis into her vagina, she said “what about AIDS”. He said, “I don’t worry about you”. N.G. replied, “what about you?” Mr. Nygard put on a condom and began to have sexual intercourse with her very forcefully and aggressively.

[12] Mr. Nygard testified that he did not recall ever meeting N.G. and would not have been involved in non-consensual sexual activity. He denied intentionally touching N.G. He testified that he did not pin N.G. down and remove her clothing as she was saying “no” or perform oral sex against her will. He stated that it is not the kind of thing he would ever do. He also did not blow air into her anus and stated that it sounded ridiculous. He did not place a finger in her anus or try to penetrate her anus with his penis. He also testified that he did not have vaginal sex with her against her will; it was something, he testified, that he would have never done. He did not berate her for not complying with his sexual demands.

[13] The jury convicted Mr. Nygard of sexual assault of N.G. but acquitted him of unlawful confinement.

(ii) Alleged Sexual Assault Of R.M.

[14] R.M. testified that she met Mr. Nygard in 1996 on a plane. He later called her and asked her to do some work for him, including asking her to host a party at his office. Mr. Nygard testified that he did recall her. The party was to start at 12:00 am. R.M. brought food into Mr. Nygard’s private space. People were taking part in group sex. She was nervous and poured herself a drink, and then had another. She was uncomfortable and did not think that sexual activity was to be part of the evening.

[15] R.M. testified that she had no memory after the second drink. She blacked out. When she woke up Mr. Nygard was on top of her, and she was naked on the bed. He had her pinned by the wrists and was thrusting his penis against her vagina. He was a large man. Everyone else in the room was watching. She said “no”. He let go of her wrists and re-adjusted his penis. He was naked. She felt that he was trying to put his penis inside her vagina, but he was too limp. She yelled at him as loud as she could. He got off her and started yelling and screaming that she had ruined the party. She got up, gathered her clothing, and went to the bathroom. She felt embarrassed. She tried to find a door to get out but couldn’t find one. There was no handle where she had come in and she could not figure out how to get out.

[16] Mr. Nygard testified that this event absolutely never occurred, and he would not have engaged in such behaviour.

[17] The jury acquitted Mr. Nygard of sexual assault of R.M.

(iii) Sexual Assault of K.R.

[18] K.R. met Mr. Nygard in the Bahamas as they were about to board an airplane. K.R. had been on vacation there. They later went on some dinner dates. He also invited her to a Rolling Stones concert at what was then called the Skydome. He then took her back to his private space at 1 Niagara Street. At one point he asked her to make him a sandwich. He started berating her.

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

[20] Mr. Nygard testified that he did not recall K.R. He did not go to a Rolling Stones concert with her. He did not berate her and chase her around the private space. He said that he would never have done such a thing. He also said that he did not have sexual contact with K.R. against her will after chasing her around the room. It is not the type of thing he would do.

[21] The jury convicted Mr. Nygard of sexual assault of K.R.

(iv) Sexual Assault of M.N.

[22] M.N. met Mr. Nygard in 2004-2005. She was 16. She was dating a man in his 30’s. The man 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. Mr. Nygard and her date began to have sexualized talk.

[23] M.N. testified that her date described her vagina as an “innie” to Mr. Nygard. Mr. Nygard indicated that he had to see it. He and her date started wrestling with her. Mr. Nygard’s hands were on her thighs, pulling on her skirt. She felt she didn’t have a choice. She felt dizzy, weak, and nervous. Mr. Nygard wrestled with her and pulled off her skirt and underwear while her date kept saying “just let him see it.” Mr. Nygard held one knee while her date held the other. They were looking at her vagina and commenting on it. Mr. Nygard performed cunnilingus on her while her date did the same with the other woman. M.N.’s date then put his penis in M.N.’s mouth. Mr. Nygard then told the other woman to suck on M.N.’s nipples, which she did. Mr. Nygard then penetrated her vaginally with his penis.

[24] Mr. Nygard testified that he did not know M.N. He denied intentionally touching M.N. Mr. Nygard testified that he did not say that he needed to see M.N.’s vagina, and that he does not even know what an “innie” is. He did not pull at M.N.’s skirt. He stated that he did not hold her legs open while slipping off her underwear to look at her vagina and he would never have done such a thing. He also did not tell M.N.’s date that he had to taste it. Mr. Nygard testified that he did not climb on top of M.N. and have sexual intercourse with her, and that he would never have done that.

[25] The jury convicted Mr. Nygard of sexual assault of M.N.

(v) Sexual Assault of K.H.

[26] K.H. met Mr. Nygard on an airplane. She was on her way to The Bahamas for a vacation. He asked her to come in for an interview for a possible job. She did not know who he was at the time. After returning to Canada, K.H. saw Mr. Nygard on television. She contacted him. He invited her to his building at 1 Niagara Street. She accepted, thinking it was a job interview. He gave her a tour of the building and then took her to his private space.

[27] K.H. testified that when she entered Mr. Nygard’s private space, he tackled her, and they both fell on the bed. She was not expecting that. He ended up on top of her, holding her with one hand while his hands were up in her skirt. K.H. testified that after Mr. Nygard tackled her, she thought she was going to die. She thought of the fight or flight instinct. K.H. testified that while they struggled, Mr. Nygard inserted a few fingers into her vagina. She felt instant pain. She felt as if she were being ripped open. She told him that he was hurting her, but he ignored her. He tried to lift her while holding her vagina. He ripped her blouse in the struggle. She was in shock as Mr. Nygard was a big man and very strong. She described him as being like an animal – very forceful and aggressive. The assault only ended when the intercom went off and his secretary or receptionist informed him that his next appointment had arrived.

[28] Mr. Nygard testified that he did not recall K.H. He said that he did not tackle her or pin her on the bed. It was not the sort of thing he would have done. He did not rip open K.H.’s blouse. He would never have done such an act. He also did not put his hand up her skirt and forcibly penetrate her. He said he would for sure never have done that.

[29] The jury convicted Mr. Nygard of sexual assault of K.H.

(vi) The Class-Action Lawsuit

[30] A class-action lawsuit against Mr. Nygard by alleged victims of his illegal sexual activities is outstanding in the U.S. District Court in New York. All the complainants except N.G. are plaintiffs in that lawsuit. Mr. Nygard’s counsel cross-examined the complainants about their involvement with the class-action lawyers and the lawsuit. He also argued to the jury that their evidence should not be believed because (among other things) four of the five complainants had a financial motive to testify against Mr. Nygard.

Issues

[31] There are two issues to be decided. First, did Mr. Nygard put his character in issue during his evidence in chief? And if so, what is the scope and extent of permitted Crown cross-examination?

Analysis

(a) Did Mr. Nygard put his character in issue?

[32] The Crown argued that Mr. Nygard put his character in issue by stating, in relation to each complainant, that he was not the type of person to commit a sexual assault. I agree with the Crown.

[33] The prosecution is barred from cross-examining an accused person on the basis that he or she is a person of bad character, and therefore less worthy of belief or more likely to commit the offence: Watt’s Manual of Criminal Evidence, §20.06; The principle was succinctly stated by Martin J.A. in R. v. McNamara (No. 1), 56 C.C.C. (2d) 193 (Ont.C.A.) at para. 162:

Manifestly, an accused does not put his character in issue by denying his guilt and repudiating the allegations made against him, nor by giving an explanation of matters which are essential to his defence. An accused is not entitled, however, under the guise of repudiating the allegations against him to assert expressly or impliedly that he would not have done the things alleged against him because he is a person of good character; if he does, he puts his character in issue. The difficult question is whether the appellant crossed over the line of permissible repudiation of the charge and asserted that he was an honest man.

[34] In R. v. Ansari, 2015 ONCA 575, the offender was convicted of participating in the activities of a terrorist group. The police had seized documents from the offender’s room and computer regarding the making of bombs and other literature allegedly supportive of terrorism. The trial judge initially excluded them on the basis that they were relevant only to character, and the prejudicial effect outweighed the probative value. The accused then testified in chief that he did not hold extremist views. The Crown applied to then cross-examine the accused on the excluded material on the basis that he had put his character in issue. The trial judge agreed and permitted cross-examination.

[35] Watt J.A. for the Court of Appeal noted in para. 149 that an accused person does not put their character in issue merely by denying the Crown’s accusations. A denial, however, that they would not have committed the crime because they are not the type of person to do such a thing crosses the line and puts character in issue. In that case the offender went beyond merely denying the offence. He also said that his religious views prevented him from committing the offence. The documents in the possession of the Crown that had originally been excluded by the trial judge directly rebutted much of what the accused said in chief. The trial judge allowed the Crown’s application and permitted cross-examination. The Court of Appeal upheld that decision.

[36] As noted, I found that Mr. Nygard had placed his character in issue when he continually asserted that he was not the type of person to commit sexual assault. Mr. Nygard put himself squarely within the exception described by Martin J.A. in McNamara.

[37] In my view it also would have been unfair to allow Mr. Nygard to make this claim unanswered in view of the position he took regarding the complainants. In R. v. P.(N.A.), 171 C.C.C. (3d) 70, 2002 CarswellOnt 4284, [2002] O.J. No. 4829 (C.A.) the accused was acquitted. The Crown appealed. The Court of Appeal dismissed the appeal. The trial judge had excluded certain convictions during a Corbett application: R. v. Corbett, [1988] 1 S.C.R. 670. The Crown re-opened the issue after the accused testified on the basis that the accused had placed his character in issue. The trial judge refused to permit the questioning, as the accused had “made an all-out attack on the credibility and character of the Crown witnesses…” Doherty J.A. made the point at para. 26 that:

In cases, like this one, where credibility is central to the outcome at trial, the balance may tip in favour of permitting cross-examination on an accused's criminal record if the accused mounts an all-out attack on the credibility and character of the Crown witnesses. Where that tactic is employed, cross-examination of the accused on his or her criminal record permits a more informed assessment of the credibility of the competing versions of events…

[38] Although Mr. Nygard did not have a criminal record, to my mind the principle is the same. Mr. Nygard made an all-out attack on the credibility and character of the complainants. He argued that each was lying or exaggerating and that they were not worthy of belief. He further argued that four of the five complainants had a financial motive to lie. The four were involved in a class-action lawsuit against him in the United States. It would have been unfair to the trial process and given the jury a distorted picture if he were allowed to present the complainants in this light while at the same time portraying himself as a person of good character. Accordingly, cross-examination on character was permitted – subject, of course, to the caveat that the probative value of the evidence must always outweigh the prejudicial effect.

[39] As can be seen, as a practical matter I significantly limited the amount of cross-examination in this area. Most of the areas that the Crown wished to cross-examine on did not really engage Mr. Nygard’s character. I will address that next.

(b) What is the scope and extent of permitted Crown cross-examination?

[40] Although I permitted cross-examination, it was limited because in several cases the prejudicial effect still outweighed the probative value of the proposed evidence. I will briefly set out each of the ten areas and my reasons for denying, limiting, or allowing cross-examination. For convenience I will repeat my ruling, and then explain my reasoning.

Obtaining the number from the 16-year-old runner at the London Olympics:

• The Crown may cross-examine only on the point of obtaining the contact number of this person. The clip may only be shown if any reference to the woman’s age is edited, as well as any reference to “secret tapes” that is on the video. If it is not technically possible, I won’t let the Crown play the tape.

[41] Mr. Nygard testified that he would only ask for a phone number of a woman if they were giving signs that they were interested. He would not be engaged in trying to get people’s phone numbers. He agreed that he did ask for a woman’s phone number at the London Olympics in 2012 in the athlete’s area but stated that it was because she was looking for sponsors and The Bahamas was looking to sponsor athletes. Mr. Nygard was part of the Bahamian delegation.

[42] The Crown possessed a video clip from the London Olympics in 2012 where Mr. Nygard obtained the number of a 16-year-old athlete. Although one of the complainants was 16 at the time of the offence, I ruled that the age of the athlete had to be redacted. The Crown proposed putting the clip to Mr. Nygard. Although it was a fair point to put the clip after Mr. Nygard’s evidence about exchanging numbers, in my view the obvious prejudicial effect of a 70-year-old Mr. Nygard obtaining the number of a 16-year-old female athlete when he is charged with sexual offences simply outweighed the prejudicial effect. Although Mr. Nygard did squarely put his character in issue, it is difficult for me to see how this evidence would undermine his claim that he was not the type of person who would sexually assault someone.

Berating evidence – from the clip:

• The Crown is not permitted to use this evidence to cross-examine Mr. Nygard.

[43] The question of whether Mr. Nygard engaged in berating behaviour was a live one at the trial. K.R. and N.G. both testified that Mr. Nygard berated them in an abusive and humiliating manner when they did not wish to consent to sexual activity. Mr. Nygard left the impression that he was not the sort of person who would berate others. The Crown possessed a video of Mr. Nygard berating and abusing an employee at a trade show. I did not permit the Crown to put that video to Mr. Nygard. An angry scolding of an employee for an apparent mistake is not comparable to berating a person for refusing to consent to sex. The context is entirely different. The video also made Mr. Nygard look like a very rude and disrespectful person. Mr. Nygard may well be a rude and disrespectful person outside of court, but that impression could lead to propensity reasoning by the jury. The probative value did not outweigh the prejudicial effect.

Berating evidence and not following the law – from the clip:

• The Crown is not permitted to use this evidence to cross-examine Mr. Nygard.

[44] Mr. Nygard led evidence that his employees had purchased a bust of Mr. Nygard for his 1 Niagara Street building out of their respect and admiration for him. Mr. Nygard also testified that he had changed the fashion industry from a sweatshop industry and was a very good employee-minded employer. He testified that he always followed the law. That was a question in relation to a comment made by Mr. Nygard relating to fire regulations.

[45] The Crown wished to play the same clip of Mr Nygard abusing an employee to rebut this impression. I refused permission to the Crown to cross-examine on any of it, for the reasons already set out. As well, this evidence had only the most tangential relevance to anything the jury had to decide. Obviously, there is an important role played by credibility in a criminal case, but not everything that an accused person says that is capable of being contradicted by extrinsic evidence needs to go before the jury. As with the collateral fact rule, doing so risks sending the jury down evidentiary rabbit holes that distract them from their real task, which is to determine whether the Crown has proven each element of the offence beyond a reasonable doubt. This evidence is simply too remote to be of much probative value.

Not following zoning laws and breaching court orders in The Bahamas:

• The Crown is not permitted to use this evidence to cross-examine Mr. Nygard.

[46] The Crown also wished to put things to Mr. Nygard that would contradict his claim that he always followed the law. For example, 1 Niagara Street was not zoned for residential purposes. His personal space in 1 Niagara Street therefore violated zoning by laws. As well, the Crown wished to put to Mr. Nygard that his property in The Bahamas did not follow local by-laws; and Mr. Nygard refused to appear for a hearing and apparently a warrant for his arrest was issued by the Bahamian courts.

[47] I did not permit the Crown to put this evidence to Mr. Nygard. I refused to permit the clip for the same reason as set out above. Zoning regulations are complicated. Whether the personal space at 1 Niagara Street followed the applicable zoning regulations was a complicated question; zoning regulations are complicated. The cross-examination risked becoming a distracting debate about whether 1 Niagara Street complied with zoning by-laws. It would be distracting to the jury to discuss zoning during deliberations when the focus should have been on whether the Crown had proven the allegations of sexual assault beyond a reasonable doubt.

[48] I also did not permit questioning about the Bahamian arrest warrant, for two reasons: first, cross-examination risked distracting the jury from the issues that it had to decide, for the reasons I have already set out. Moreover, an arrest warrant issued from a foreign court is a serious thing. It has the potential to be highly prejudicial. It certainly sounds bad. As I understand it, however, the warrant for non-appearance was in relation to a civil or regulatory matter, and not in relation to a criminal matter. Having that evidence put to Mr. Nygard, again, enhanced the risk of propensity reasoning by the jury. For that reason, I dismissed the Crown’s request.

Paying out the women in the Manitoba Human Rights tribunal re: cooperation:

• The Crown is not permitted to use this evidence to cross-examine Mr. Nygard.

[49] In his police interview, Mr. Nygard agreed that he had paid $20,000 to each complainant who had filed a complaint with the Manitoba Human Rights Commission. The Crown wished to use that evidence to rebut Mr. Nygard’s claim that he was not the type of person who would suppress a story. That issue arose because K.R. indicated that she had been told by the Toronto Police that Mr. Nygard’s head of security had come to Toronto to “see if he could assist” the Toronto Police in their investigation of him. K.R. was told of this “assistance”. She became frightened and ceased her cooperation with the police. She resumed her cooperation years later with the investigation that led to these charges.

[50] I did not permit the Crown to put this evidence to Mr. Nygard. Again, it risked distracting the jury from the main issues before it. It would have required examination to set up the context that would have engaged propensity evidence. Again, while Mr. Nygard did put his character in issue, I find that the prejudicial effect would have outweighed the probative value.

The plane – the photo:

• The Crown may use this photo to cross-examine Mr. Nygard.

[51] M.N. had testified about Mr. Nygard showing her a photograph of an airplane. She seemed to recall it had Mr. Nygard’s name on it. Mr. Nygard also testified about his airplane. I permitted the Crown to put the photograph to Mr. Nygard as it simply involved his credibility.

The plane – the video walkthrough:

• The Crown is not permitted to use this evidence to cross-examine Mr. Nygard.

[52] The Crown possessed a video of a walk-through of Mr. Nygard’s aircraft. The purpose was to show that alcohol was present. I have already mentioned Mr. Nygard’s testimony about alcohol. He never denied that he drank alcohol, and in fact testified that he believed in the health benefits of a glass of red wine. His evidence was that the alcohol (except for wine) was locked up at 1 Niagara Street. I found that cross-examination about the presence of alcohol on the airplane was simply too remote to be of much probative value. Complainants testified about alcohol in the private space at 1 Niagara Street. So did other witnesses. Whether or not Mr. Nygard had alcohol on his private jet seemed to me to have little relevance to whether there was alcohol in the private space.

Pornography:

• The Crown may cross-examine Mr. Nygard about pornography being played in the Finland suite.

[53] Although I referred to the Finland Suite in my ruling, I have used the term “private space” at 1 Niagara Street in Toronto. Employees and others apparently used the term Finland Suite. In this ruling the Finland Suite and the private space are the same thing.

[54] N.G. and R.M. testified that pornography was playing in the private space at 1 Niagara Street when they were present. Mr. Nygard indicated that the VCR’s in the private space did not have pornography. He denied that pornography had been playing.

[55] The presence (or non-presence) of pornography in the private space at 1 Niagara Street bore on the credibility of both the complainants and Mr. Nygard. The potential probative value of the evidence did not outweigh the prejudicial effect.

The Louis Bacon Lawsuit – Timelines:

• The Crown may cross-examine Mr. Nygard about the timing of the first lawsuit.

[56] Louis Bacon was Mr. Nygard’s neighbour in The Bahamas. He was also Mr. Nygard’s enemy. Lawsuits have flown back and forth between the men. Mr. Nygard apparently believed that Mr. Bacon had a vendetta against him. My understanding is that the lawsuit (or lawsuits) contained some very significant allegations of impropriety against Mr. Nygard by Mr. Bacon. The allegations in the lawsuit mainly concerned alleged improprieties in The Bahamas.

[57] Although Mr. Nygard did put his character in issue, the issues in the lawsuit risked distracting the jury. They might have debated whether what happened in the Bahamas was true, rather than whether the Crown in this case had proven the elements of each offence beyond a reasonable doubt. As well, putting one’s character in issue does not mean that it is open season. The trial judge must still determine if the probative value of the allegations outweighs the prejudicial effect. In my view, the Bacon lawsuit had the potential to do just that. I therefore restricted cross-examination only to the timing of the lawsuit.

The existence and number of complainants in the class action lawsuit:

• The Crown may cross-examine Mr. Nygard on this point but may go no further than simply the number of complainants; it is my understanding that the Crown wishes to go no further in any event.

[58] As noted, four of the five complainants were part of the class-action lawsuit in the United States against Mr. Nygard. Each complainant was cross-examined on that point. The Crown wished to put to Mr. Nygard that these were not the only people who were suing him. Mr. Nygard had testified that he was not the type of person to commit a sexual assault. It was open to the Crown to put to him that, in fact, multiple people had claimed that he had committed a sexual assault. With the appropriate jury instruction, it was my view that this was precisely the type of evidence that could be adduced to rebut a claim of good character. I did not permit the Crown to get into the substance of the allegations set out in the lawsuit, for what I think must be obvious reasons.

Disposition

[59] Cross-examination was in the limited manner set out in my ruling.

R.F. Goldstein

Released: June 11, 2025

Addendum

[1] It has come to my attention that I had not yet released this ruling. Transparency is called for in this situation. There were many rulings during this trial and due to inadvertence on my part I simply missed that this one had not been completed and released. The delay was purely due to me, and in no way the fault of the parties or the court staff.