Former Manitoba justice minister's decision to order Nygard review was abuse of process: judge
A Manitoba judge has determined a serious abuse of process took place in 2022, when the province's then attorney general ordered a review of a decision to not charge former fashion mogul Peter Nygard with sexual assault.
Provincial court Judge Mary Kate Harvie made the ruling Tuesday morning but did not grant a judicial stay of proceedings, which Nygard's lawyer had requested during arguments earlier this month.
"I am satisfied that the actions of the attorney general amount to an abuse of process. I am not satisfied that this is one of the clearest cases where a judicial stay of proceedings is appropriate," Harvie said.
She called the abuse of process "a serious one," saying the actions of then attorney general Kelvin Goertzen fell "well short of accepted standards."
In her 37-page decision, Harvie wrote "this is not a conclusion I have reached lightly, recognizing that the authorities suggest that courts should be very cautious when analyzing allegations of this nature. It is one, however, that I am satisfied is supported by the evidence and the law."
Harvie said she believed "the appropriate message has been sent" without needing to order a stay.
"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 final adjudication, I cannot imagine that the remedy would be the same as in this matter."
The Manitoba case against Nygard will proceed and is set to return to court in September for motions.
Goertzen, currently the Opposition MLA for Steinbach, would not speak to Harvie's decision.
"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," he said in a one-line email statement.
At a hearing earlier this month, a Crown lawyer argued that Goertzen made the request in the public interest and out of concern for sexual assault victims.
Nygard was first arrested in Winnipeg in December 2020 under the Extradition Act, after he was charged with nine counts in New York, including sex trafficking and racketeering.
At the time, the Winnipeg Police Service had been investigating the former fashion mogul for months. The files of eight women who alleged they'd been assaulted by Nygard were sent to Manitoba Justice for review in December 2020, but Manitoba prosecutors decided in 2021 not to lay charges.
No details were provided on how that decision was reached.
In 2022, while he was attorney general and justice minister in the previous Progressive Conservative government, Goertzen announced that Manitoba was going to take a second look at the decision and seek the advice of Saskatchewan's public prosecution services.
Saskatchewan's finding was that one of the eight matters referred for a second opinion did, in fact, meet the standard for criminal proceedings. Nygard was then charged in 2023 with sexual assault and forcible confinement, in connection with offences allegedly committed in Winnipeg in November 1993, involving a 20-year-old woman.
Two days of arguments were presented to Harvie earlier this month as Gerri Wiebe, Nygard's lawyer, tried to get the proceedings stayed, claiming the review was ordered because of political pressure.
Wiebe had filed an abuse of process motion, arguing public protests, intense media pressure and questions from other politicians in the Manitoba Legislature put pressure on Goertzen to act.
She argued it undermined the integrity of the justice system.
Harvie agreed the decision seemed to have been made abruptly and only after questioning in the legislature, despite Goertzen having been in possession of the Manitoba Prosecution Service opinion for about 16 months.
"In this case, the timing of the attorney general's decision is very troubling," she wrote in her decision.
"[It] 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."
Charles Murray told Harvie the request for a second opinion may have been unusual but is within the power of the office of the attorney general.
He said Goertzen was "honouring and representing the community's sense of justice."
Harvie, though, wrote in her decision that "in order for the attorney general to respect and maintain the rule of law, he cannot be swayed by media criticism, petitions, public demonstrations, or partisan concerns.
"At the end of the day every person, no matter how reviled, how notorious, how popular or unpopular, must receive equal treatment by the attorney general and by the justice system. As demonstrated by the evidence in this case, such respect for the rule of law was not extended to Nygard," Harvie wrote.
Nygard seems to have been singled out because of the notoriety of his case, not because of any principled reasons, and the decision to seek a second opinion after public pressure was brought to bear was based on partisan concerns, she wrote.
Harvie agreed with Murray's point that Wiebe has not taken issue with the Saskatchewan prosecution determining charges should proceed regarding one of the eight complainants.
But the delays caused by Goertzen's choices potentially made things more difficult for the complainant, Harvie wrote.
"It is accepted that victims of sexual violence have struggled with the court system. Unfortunately, having dealt with this prosecution in this manner, the attorney general has risked adding to those concerns rather than alleviating them."
She also agreed with the Crown's argument that if there is a problem with a lack of "guardrails" to guide an attorney general who wants a second opinion, courts should find a remedy without resorting to a judicial stay of proceedings.
She noted there is no policy in place in Manitoba to determine when a second opinion can or should be sought by the attorney general.
'Vitally important' decision: prof
Brandon Trask, an associate professor of law at the University of Manitoba and former Crown prosecutor, said Harvie's decision was "remarkable" and "vitally important."
"I think it's just very important for society to recognize Crown prosecutors have such an important role to play, and they cannot be interfered with by politicians," Trask said.
The situation was "unprecedented" in Manitoba, but Harvie's ruling has now helped set a precedent, he said.
"Having a better developed set of policies will help prevent something like this from happening in the future."
In an email to CBC News, the Manitoba Association of Crown Attorneys said it would not comment on the case against Nygard.
In response to Harvie's decision, the association called on the government to "refrain from outsourcing prosecutions to outside counsel … and instead ensure they are handled by the experienced and independent prosecutors within the Manitoba Department of Justice."
Nygard has already been sentenced to 11 years in prison after being convicted in Toronto of four counts of sexual assault involving five women who said they were attacked between the late 1980s and the early 2000s.
He is also facing charges in Quebec and the United States.
He has denied all allegations against him.
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