Peter Nygard appealing extradition to U.S. after justice minister denies requests for assurances
Peter Nygard is asking the Manitoba Court of Appeal to quash an order made by Canada's justice minister to surrender the former fashion executive to the United States to face criminal charges there, once his Canadian trials are complete.
In court documents filed last April, Toronto lawyer Brian Greenspan says Justice Minister David Lametti made four legal errors when ordering Nygard to face a trial south of the border for nine offences he was charged with in the Southern District of New York.
Those include conspiracy to commit racketeering, transportation of a minor for purpose of prostitution, and sex trafficking by force, fraud or coercion.
The appeal documents say if Nygard was convicted for similar charges in Canada he would be sentenced to 15-20 years, whereas in the U.S. he would likely face life in prison.
Nygard, 81, was arrested in Winnipeg on Dec. 14, 2020, on a provisional warrant which was issued on behalf of the U.S., and was initially detained at Headingley Correctional Centre, just west of Winnipeg.
In October 2021, he was transferred to the Toronto South Detention Centre, after being charged in that city, where he is still behind bars.
He faces nine counts of sexual assault and three counts of forcible confinement in Toronto, related to allegations from the late 1980s and mid-2000s.
He also faces one count of sexual assault and one count of forcible confinement in Quebec on allegations that involve the same person and allegedly took place between November 1997 and November 1998.
Nygard is considered innocent until proven guilty. He has not been convicted of a criminal offence in Canada or the U.S.
His defence lawyers say one of the issues they wanted addressed was where Nygard would end up incarcerated after his extradition.
Nygard's legal team asked Lametti to get the U.S. to agree that their client would not be locked up at Brooklyn's Metropolitan Detention Centre — the same facility where financier and registered sex offender Jeffrey Epstein died in 2019.
"Incarceration of any inmate [in this facility], much less an 80-year-old accused with multiple serious health concerns, creates an unacceptable risk to the safety and security of a Canadian surrendered to a treaty partner," Nygard's lawyers wrote to the justice minister.
"As such, detention would deprive him with his right to liberty and security of the person in accordance with fundamental principles of justice," wrote Greenspan and Seth P. Weinstein, another lawyer at his firm, in their Nov. 22, 2021, submissions to Lametti, which were included in last April's appeal court filing.
Greenspan told CBC it would be "inappropriate to discuss the matter while the case is before the courts."
An appeal hearing has been scheduled in Winnipeg for April 26. Nygard will not attend in person.
His trial for the sex charges he faces in Toronto is scheduled for Sept. 11, 2023. No date has been set for his Montreal trial.
Requests not uncommon: extradition lawyer
British Columbia extradition lawyer Gary Botting — who isn't involved in the Nygard case — says it's not uncommon for people facing extradition to make requests for assurances, especially when it comes to where the accused person will be housed.
"A Canadian prison is much more predictable, much better than any of the facilities in the States," Botting said in an interview with CBC.
"I would say that his life is probably at greater threat down there than it is in Manitoba."
Botting said if the justice minister doesn't agree to keep Nygard out of the Metropolitan Detention Center, the issue could end up in court.
"Basically, courts in the past have said that … [people accused] should get assurances that they won't be locked up in a specific prison in a specific state where they're being sent," he said.
"So it's not beyond the reach of credibility that he would ask for assurances not to be housed in that particular facility."
The November 2021 Nygard submissions say the octogenarian suffers from a range of health conditions, including coronary heart disease necessitating a pacemaker, Type 2 diabetes, chronic back pain, and dietary issues with sugar and "white carbohydrates," as well as allergies.
"Mr. Nygard is allergic to penicillin and had become allergic to the polyester/cotton clothing and bedding he had been provided at Headingley," the lawyers wrote in the submission to Lametti.
"His allergic reactions are worsening, and he is now on medication which has caused significant swelling."
No basis to refuse extradition: justice minister
Lametti's March 2022 response documents — which were included in the appeal court filings — say the government consulted with the U.S. Department of Justice, the U.S. Marshals Service and the U.S. Bureau of Prisons, and were advised Nygard's medical needs would be adequately accommodated.
The justice minister said he considered Nygard's submissions, but decided it was not unjust or oppressive to surrender him unconditionally to the U.S. once his charges in Canada have been dealt with.
"I have also determined that there is no other basis that would justify refusing Mr. Nygard's unconditional surrender on the offences for which his extradition is sought," Lametti wrote in his March 22 decision.
Nygard's legal team wanted Lametti to get assurances from U.S. authorities that Nygard's surrender would be limited to the one charge of trafficking in persons.
The original authority to proceed — the Justice Department order which authorizes an extradition hearing — was issued on March 4, 2021, based on that single charge of trafficking in persons, which is a criminal offence in both Canada and the U.S. It did not include the eight other charges Nygard is facing in the Southern District of New York.
Once the justice minister consented to the extradition, he agreed that Nygard would face all nine charges in New York.
Botting calls that the "bait and switch method," which he says is common in Canadian extradition cases.
"It's like you're sold one bill of goods and [you] say, 'OK, yeah, I can live with that.' But then all of a sudden you have a whole much more serious set of charges," he said.
Botting said academics and lawyers across the country have been pressuring the courts to amend the Extradition Act so that the justice minister can't include one charge on the authorization to proceed, then order a person extradited to face more.
Lametti's response documents say Nygard "consented to his committal for extradition."
The judge who heard the extradition hearing accepted that the conduct Nygard is accused of "establishes the Canadian offence of trafficking in persons," the justice minister wrote.
"The American authorities have determined that the same conduct supports the nine counts charged against Mr. Nygard in the American indictment, including the offence of racketeering conspiracy."
Civil commitment concerns
Unlike in Canada, in the United States, an accused person could be subject to what's known as civil commitment proceedings, which could result in a person being involuntarily and indefinitely locked up, even after serving their sentence.
Nygard's legal team wanted the minister to ensure their client would not have to face such a proceeding, saying the possibility of civil commitment raises two issues:
The U.S. federal civil commitment process allows for the possibility of indefinite detention, even if someone is acquitted of the criminal charge for which they were surrendered. That "would shock the Canadian conscience," the lawyers argue.
Lametti's response says he is "entitled to rely on the good faith of the United States that it will honour its treaty obligations," and has "no cause to believe" the U.S. wouldn't honour those obligations.
Botting agrees with Nygard's lawyers that Lametti made a mistake when he neglected to get assurances Nygard would not be subject to civil commitment.
"It's common to make requests for assurances, because that's what the [Extradition] Act provides for," said Botting. "But the fact is, the minister almost never gives assurances."
