Former fashion mogul Peter Nygard will remain in jail after a judge dismissed his bail appeal.
Manitoba Court of Appeals Justice Jennifer Pfuetzner released her decision in Nygard's latest bid for release on Friday.
Pfuetzner reserved her decision last week after hearing virtual arguments from Nygard's defence team, who pushed to have him released from Headingley Correctional Facility, just outside of Winnipeg.
Nygard was arrested in mid-December on charges filed by a Southern District of New York court, including racketeering and sex trafficking. He's been in custody since.
Nygard faces the possibility of extradition to the U.S. on his charges. None of the allegations against him have been proven in court.
Manitoba Court of Queen's Bench Justice Shawn Greenberg denied Nygard bail last month, citing concerns about possible witness tampering if he were released.
Nygard's appeal argued Greenberg made several errors in principle in her decision and that changes since then — including an updated bail plan — make his detention unnecessary. Pfuetzner rejected those claims.
The addition to Nygard's bail plan involved constant monitoring of his computer and cellphone, the appeal decision said.
Nygard's defence also submitted that the court could order more conditions, like restricting his visitors to only medical and professional advisers, who would be monitored by a guard. But Pfuetzner found that would bar Nygard's sureties from supervising him, making the plan as a whole "impracticable."
Pfuetzner noted the "sophisticated" technology detailed in Nygard's revised plan could "be defeated by someone simply walking in and handing [him] a 'burner'" — a disposable phone.
She said she wasn't convinced the new plan addressed the flaws Greenberg noted in the original. But Pfuetzner said even if she's wrong on that point, Nygard's detention is still necessary to maintain confidence in the administration of justice.
"I say this having regard not only to the revised bail plan, but to all of the factors considered by the application judge, including the 'extreme' nature and scope of the allegations which paint a picture of criminal conduct that was planned, financed and executed on a staggering scale," she said.
Nygard's appeal also argued Greenberg improperly relied on bail letters from the United States Attorney for the Southern District of New York — an assertion Pfuetzner dismissed.
Those letters alleged that over the past several decades, Nygard "has repeatedly engaged in efforts to obstruct justice and tamper with potential witnesses against him." The letters claimed that included paying witnesses to provide information Nygard knew was false, monitoring contact between victims and U.S. law enforcement and providing false information to witnesses.
The appeal claimed those letters were an attempt by the United States to exaggerate the strength of its case for extradition and provide a false impression that Nygard is unwilling to follow court orders.
It also said other evidence contradicted those bail letters, Pfuetzner's decision said. But while there was some "competing evidence" in the original bail application, some evidence also corroborated the bail letters, she wrote.
Nygard's appeal also argued Greenberg improperly shifted the onus onto him to propose a bail plan that would effectively mitigate any risk of him interfering with the administration of justice, "when the law only requires that the plan 'adequately' mitigate the identified risk."
Pfuetzner said the entirety of the plan to address concerns around witness tampering was a proposed order prohibiting Nygard from contacting victims or witnesses.
"Not only did the bail plan fail to adequately mitigate the risk of witness tampering, it provided no real mitigation at all," she said. "The application judge found ... the respondent would not comply with such an order."
Pfuetzner also rejected Nygard's claims that Greenberg did not consider evidence that could cast doubt on the strength of the case being made for his extradition to the U.S., and that there was insufficient detail surrounding the allegations against him "to truly understand the strength" of that case.
The bail application also argued the "extreme restrictions on [Nygard's] liberty inherent in the bail plan" and his "extreme vulnerability to COVID-19" in jail would have been "sufficient to maintain public confidence in the administration of justice if he were released."
Neither argument was "persuasive," Pfuetzner's decision read. "No reasonable, informed member of the public would have confidence in the administration of justice if the respondent were released on a deficient bail plan."
In an affidavit filed with his bail appeal, Nygard's doctor said his patient's condition has worsened considerably since he was taken into custody.
The 79-year-old's lawyers had argued Nygard is at risk of severe health outcomes, including those due to COVID-19, if he stayed in jail. There are no known active cases of the illness in the Headingley facility.
Documents filed in his bail appeal revealed Nygard has a phone in his jail cell he can use 16 hours a day so he can be in constant contact with his legal team. Those documents also revealed he has a TV, a plastic chair and two mattresses he uses for his back issues.
Pfuetzner noted that Greenberg accepted that Nygard's heightened susceptibility to COVID-19 weighed in favour of his release on bail.
"However, at the end of the day, she found that this factor, and the others militating in favour of release, were outweighed by 'the nature and scope of the allegations' … which she characterized as 'extreme,'" Pfuetzner's decision said.