A Manitoba judge has determined an “abuse of process” took place when the province’s former attorney general ordered a review of a decision to not charge Peter Nygard with sexual assault and unlawful confinement.
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 case against Nygard will proceed and is set return to court in September for motions.
CBC News has reached out to Goertzen, currently the Opposition MLA for Steinbach, for comment, but has not yet heard back.
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 unlawful 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.”
The Crown, however, had argued that Goertzen was acting in the public interest and out of concern for victims of sexual assault when he asked for a review.
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.”
In her decision, Harvie agreed with another point made by Murray — that Wiebe has not taken issue with the Saskatchewan prosecution opinion that the standard for charges was met regarding one of the eight complainants.
She also agreed with the Crown that, if there is a problem with the lack of “guardrails” in place to guide an attorney general who wishes to seek a second opinion, then courts should find a remedy to that without resorting to a judicial stay of proceedings.
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.
