Ex-attorney general Goertzen’s request for second opinion on Nygard prosecution an abuse of process, judge decides, but denies defence motion to stay sex charges

A Manitoba judge has ruled it was an abuse of process for the province’s attorney general to order an out-of-province review after Manitoba prosecutors declined to lay sex charges against Peter Nygard.

But the convicted sex offender and disgraced fashion mogul will continue to face prosecution in Manitoba after provincial court Judge Mary Kate Harvie denied a defence motion to stay charges against him.

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.

Manitoba prosecutors initially declined to lay charges against Nygard in 2021; it was only after then-Progressive Conservative attorney general Kelvin Goertzen sent the woman’s case file and those of seven other alleged victims to Saskatchewan Public Prosecutions Service for review in November 2022 that charges were later authorized in the woman’s case.

In an abuse of process motion heard earlier this month, Nygard’s lawyer Gerri Wiebe argued Goertzen, the MLA for Steinbach, had no grounds to seek a second opinion, alleging he was responding to media and political pressure when he rejected the “considered opinion” of Manitoba prosecutors that there was no likelihood of conviction in the case.

In a 37-page written decision issued Tuesday, Harvie ruled the timing of Goertzen’s decision to seek a second opinion was “very troubling and appears on the evidence before the court to be one that was made abruptly and only after questioning in the Legislature.”

“The reasoning behind the decision is shrouded in a claim of privilege,” Harvie said. “While I recognize that some of the evidence in this application is circumstantial, it nonetheless leads to the conclusion that the course of action taken by the attorney general was a partisan decision which was made contrary to the rule of law… I am satisfied on a balance of probabilities that the attorney general’s decision to obtain a second opinion amounts to an abuse of process.”

Harvie said Goertzen’s actions “fell far short of the expected standard,” but did not merit a stay of proceedings against Nygard.

“Taking into account all of the competing interests in this case, including the abuse of process which resulted in charges being laid versus the fact that the accused is facing a very serious allegation about which there is a high degree of public interest in having adjudicated, I am not satisfied that this is one of those ‘clearest of cases’ where a judicial stay of proceedings is warranted,” Harvie said.

Goertzen wouldn’t comment on the ruling Tuesday.

“As this matter remains before the court, with a trial date set for later this year, it would be inappropriate to comment until the conclusion of the judicial proceedings,” Goertzen said.

In November 2022, then-Manitoba Liberal leader Dougald Lamont took calls for a new investigation into Nygard 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.

“The attorney general’s explanation for seeking the second opinion does not appear to have been based on any articulated problem with the Manitoba Prosecutions decision,” Wiebe told court earlier this month.

“The only explanation given by the attorney general is that he appears to have been bothered by the fact that charges were authorized in other jurisdictions, that he had heard from the victims and that he had lost sleep at night.”

“While it does not necessarily help the accused in this case, I am satisfied that the appropriate message has been sent with respect to the actions of the attorney general and the method of obtaining a second opinion.”–Judge Mary Kate Harvie

Crown attorney Charles Murray argued Goertzen’s decision to order a review wasn’t motivated by bias, but by a desire to confirm whether there was a reasonable likelihood of conviction in the case – a key requirement when the Crown is determining whether to lay charges.

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.

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.

Harvie said despite the abuse of process finding, Nygard is still presumed innocent and will be afforded every charter and procedural protection as he moves through the trial process.

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“While it does not necessarily help the accused in this case, I am satisfied that the appropriate message has been sent with respect to the actions of the attorney general and the method of obtaining a second opinion,” Harvie said.

“If any attorney general seeks to proceed in the way Mr. Goertzen did in this case, being motivated by partisan considerations, by proceeding without the guidance of a policy or otherwise articulated and transparent principles, and in publicly speaking about a case prior to its adjudication, I cannot imagine that the remedy would be the same in this matter.”

Nygard is currently incarcerated at Bath Institution in Ontario, 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.

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

dean.pritchard@freepress.mb.ca

Dean Pritchard
Courts reporter

Dean Pritchard is courts reporter for the Free Press. He has covered the justice system since 1999, working for the Brandon Sun and Winnipeg Sun before joining the Free Press in 2019. Read more about Dean.

Every piece of reporting Dean produces is reviewed by an editing team before it is posted online or published in print — part of the Free Press‘s tradition, since 1872, of producing reliable independent journalism. Read more about Free Press’s history and mandate, and learn how our newsroom operates.