No bias in decision to seek outside opinion on Nygard charges: Crown

A decision by the province’s former attorney general to seek a second opinion on whether convicted sex offender Peter Nygard should face sex assault charges in Manitoba was not motivated by bias, a government lawyer told a judge Monday.

The defence argued Kelvin Goertzen “must have concluded (Nygard) was guilty and that was the basis of the decision,” Crown attorney Charles Murray told provincial court Judge Mary Kate Harvie.

“This decision was not about guilt or innocence, it was only about reasonable likelihood of conviction and only about getting a second opinion,” Murray said.

Nygard, 83, is set to stand trial in December on charges he sexually assaulted and forcibly confined a then-20-year-old woman in 1993 at his former corporate headquarters in Winnipeg.

Nygard is seeking to have the charges stayed. At a hearing Friday, defence lawyer Gerri Wiebe argued Goertzen had no grounds to seek a second opinion on the case from the Saskatchewan Public Prosecutions Service in November 2022, more than a year after the Manitoba Crown attorney’s office decided it would not pursue charges against Nygard.

Wiebe called the Manitoba prosecution an abuse of process, alleging Goertzen was responding to media and political pressure when he made the decision to seek a second Crown opinion from out of province, a move not specifically sanctioned by government policy.

“There is no hard evidence of bias, just speculative inferences… based on timing and what (the defence) asserts (Goertzen) must have thought,” Murray said Monday.

Nygard appeared via video from Ontario’s Bath Institution, where he is serving an 11-year sentence after being convicted last September of sexually assaulting four women at his Toronto corporate headquarters from the late 1980s to the mid-2000s.

The disgraced fashion mogul also faces charges in Quebec and extradition to the U.S., where he has been charged with sex trafficking and racketeering.

The woman at the centre of the Winnipeg charges was one of eight alleged sexual assault victims whose cases were investigated by city police and assessed by Manitoba Crown attorneys.

In November 2022, then-Manitoba Liberal leader Dougald Lamont took the calls for a new investigation to the legislative assembly and organized a news conference with women who had accused Nygard of assault.

Two days later, Goertzen ordered a second opinion on the matter — a decision Wiebe said Goertzen himself described as “unprecedented” — and sent the case files to Saskatchewan prosecutors for review. That review resulted in Manitoba prosecutors authorizing charges involving one alleged victim.

“Here you have the attorney general treating Peter Nygard differently than he treats everybody else,” Wiebe said Monday. “It is a violation of the rule of law on its face to treat one person differently than you treat everyone else simply because the case is high profile… I don’t think that the attorney general is out to thwart or to punish Mr. Nygard at all cost, but the reality is that he treated him differently.”

Wiebe argued Goertzen publicly provided no concrete reasons to justify the out-of-province review, other than that charges against Nygard had been authorized in other jurisdictions and that he had “lost sleep at night.”

Murray said a letter from Goertzen to his assistant deputy minister clearly showed he was concerned that not ordering the review would undermine public confidence in the justice system.

“Sexual assault and the exploitation of vulnerable women is a very serious concern in Manitoba and across Canada,” Goertzen wrote in the letter. “It is my view that if there were a legally viable path to prosecution, there is a strong public interest in pursuing a prosecution of the alleged offences.”

Murray said the timing of Goertzen’s decision wasn’t evidence of partisan politics, only of when the matter came to his attention. Public comments by Goertzen indicating he would accept whatever conclusion the review came to supported the view he was not guided by bias.

“What this tells us is that the decision to seek a second opinion was in the public interest, it was for an articulated reason that supports the public interest and it wasn’t predetermined,” Murray said.

Harvie will deliver her ruling on the defence motion at a later date.

dean.pritchard@freepress.mb.ca