Nygard Fails in Bail Appeal

The high-profile case of fashion mogul Peter Nygård has hit another milestone, with the Supreme Court of Canada recently dismissing his appeal of the denial of a judicial interim release (bail) decision, pending his extradition request to the U.S.

Nygård is charged with racketeering conspiracy, sex trafficking conspiracy, sex trafficking, transportation of a minor for prostitution, and transportation for prostitution, over 25 years. He was arrested on Dec. 14, 2020, pursuant to a provisional arrest warrant, under s. 13 of the Extradition Act.

The Supreme Court of Canada stated in R. v. St-Cloud,

[70] … in Canadian law, the release of accused persons is the cardinal rule and detention, the exception. To automatically order detention would be contrary to the “basic entitlement to be granted reasonable bail unless there is just cause to do otherwise” that is guaranteed in s. 11(e) of the Charter. This entitlement rests in turn on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s. 11(d) of the Charter. These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case.
[emphasis added; citations omitted]

These principles also apply to extradition cases, and release from custody is an entitlement unless it is established by the Crown that it is necessary to ensure attendance in court, for the protection of public, or to maintain confidence in the administration of justice.

The Court of Queen’s bench of Manitoba concluded that Mr. Nygård’s continued detention was necessary to maintain confidence in the administration of justice and for the protection of the public, given the unusual facts and the types of charges against him spanning many years, and in light of the factors under Section 515(10)(c) of the Criminal Code.

This decision was upheld by the Manitoba Court of Appeal, who also reviewed a claim that that there was a material changes in circumstances that would not require a continued detention. He proposed a comprehensive plan to monitor his electronic communications, to address the concern of witness tampering, and the U.S. Attorney’s Office had provided details for prosecution not available at the time of the bail hearing.

The court rejected these claims, indicating that the monitoring plan could easily be circumvented through use of a burner phone, and the prosecution information alleged the same essential content as the letters available at the time of the bail hearing.

The Court of Appeal also noted that an extradition hearing is not a trial, and that the actual trial will take place in the State of New York. The focus of that extradition hearing will be how the offence selected by the Minister of Justice compares to the foreign offence, to determine whether there is a prima facie case of a Canadian crime.

The Minister of Justice of Canada has provided the Attorney General with the Authority To Proceed (the ATP) under section 15 of the Act, for “[t]rafficking in persons” contrary to section 279.01(1)(b) of the Code, paving the way for the extradition hearing to proceed.

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