R v Nygard: the Use of Circumstantial Evidence and Inference to Establish Abuse of Process
Author: Cory J Hudson
In R v Nygard,[i] the accused was an internationally recognized fashion mogul investigated in relation to several sexual assault complaints dating back to 1993.[ii] In 2021, the Manitoba Prosecution Service concluded that there was a reasonable likelihood of conviction.[iii] Later that same year, Nygard was charged with sexual assault in other provinces, and this was reported by CBC.[iv] This report led to protests and public concerns about Nygard’s case.[v] In 2022, opposing parties held press conferences to attract public attention and repeatedly questioned the government of the day in the Legislature.[vi] Right after the legislative questioning in December 2022, Attorney General (AG) Goertzen–who also acted as Minister of Justice–decided to seek a second opinion from Saskatchewan Public Prosecution.[vii] Later that month, AG Goertzen posted a “tweet” commenting on Nygard’s case prior to receiving a response from Saskatchewan Prosecution while mentioning the charges against Nygard in other provinces.[viii] The defence counsel submitted for a stay of proceedings, arguing that AG Goertzen’s action constituted an abuse of process and breach of Nygard’s rights under section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”).[ix]
The decision in R v Nygard decision was significant because it demonstrates the use of circumstantial evidence and contextual inference in the context of abuse of process under section 7 of the Charter. The timing of the decision made, and the context of public commentary was constantly mentioned and relied on by the defence counsel and the Supreme Court of Canada (the ‘Court’). Considering the evidence, the Court viewed AG Goertzen’s series of actions as evidence that amounted to an abuse of process and ordered a judicial stay of proceedings.
R v Nygard: Defence Counsel’s Arguments
One piece of evidence that the defence counsel heavily relied on was AG Goertzen's timing to seek a second opinion from Saskatchewan Prosecution. During the hearing, the defence counsel argued that the timing was both concerning and based on improper motive.[x] Defence counsel said that AG Goertzen’s decision was motivated by political pressure and partisan concerns because it was made immediately after AG Goertzen was repeatedly questioned by opposing parties in the Legislature.[xi] The defence also pointed out that the decision to seek a second opinion was unprecedented in Manitoba, and the absence of procedural guidelines or tests governing when to seek a second opinion resulted in a lack of procedural transparency. [xii] AG Goertzen’s actions were not based on any articulated principles, thereby breaching the accused’s fundamental rights under section 7 of the Charter. [xiii]
The defence counsel then relied on AG Goertzen’s “tweet” as evidence, arguing that its content undermined Nygard’s presumption of innocence.[xiv] By publicly addressing a specific case, identifying a specific individual, and responding to specific public concerns, AG Goertzen’s “tweet” drew prejudicial attention to an open case.[xv] In particular, the defence counsel highlighted AG Goertzen’s comment on Nygard being prosecuted in other provinces as influencing public perception and fostering prejudicial opinions.[xvi] This not only put Nygard under public scrutiny but also infringed his constitutional privilege of having the presumption of innocence.[xvii] The defence counsel held that the “tweet” proved AG Goertzen’s breach of responsibilities established under the AG Policy Statement, which outlined responsibilities to establish policy guidelines for a transparent prosecutorial process and refrain from commenting publicly on an open case.[xviii]
R v Nygard: The Court’s Reasoning
The Court admitted and relied on the defence’s evidence on both the timing of the decision to seek a second opinion and the “tweet,” when examining whether AG Goertzen’s actions constituted an abuse of process that deprived Nygard of his fundamental rights under the Charter. The Court agreed with the defence that the timing of the decision was sensitive and concerning, and that AG Goertzen’s series of actions was deemed influenced by partisan concerns and political pressure.[xix] The Court explained that the decision was a reaction to repeated questioning from opposing parties, and the comments in the “tweet” were intended to address public concerns about an open case.[xx] AG Goertzen’s series of actions were deemed as “good for the government of the day,”[xxi] with the purpose to resolve political pressure and maintain public confidence. This resulted in the loss of Nygard’s privacy protections and presumption of innocence.[xxii]
The Court compared the case at bar with R v Regan, explaining that the evidence regarding the ‘tweet,’ combined with the contextual circumstances, demonstrated the release of Nygard’s name before charges were laid contravened the rule of law.[xxiii] The Court pointed out that the repeated identification of Nygard by name resulted in the loss of privacy.[xxiv] AG Goertzen’s comment about Nygard on the outcome of the second opinion was also a violation of responsibilities under AG Policy Statement.[xxv] The Court stated that his role as an AG required him to refrain from commenting publicly prior to receiving the second opinion, and he ought to have known that his public commentary would impact the public’s perception of the accused.[xxvi] Thus, AG Goertzen breached his responsibilities as an AG, and acted contrary to the rule of law by failing to provide a fair prosecutorial process.[xxvii]
Based on the evidence of the timing of the decision made and the content in the “tweet,” the Court concluded that AG Goertzen failed to provide Nygard with equal treatment under the law and his breach of these responsibilities and Nygard’s resulting infringement of rights constituted an abuse of process.[xxviii]
Use of Circumstantial Evidence and Inference
In the Canadian legal justice system, circumstantial evidence is usually not admissible under evidentiary rules as it suggests a fact or situation, but does not prove it directly.[xxix] Circumstantial evidence requires inferences which usually rely on contextual evidence and information to establish a material fact.[xxx] In the case at bar, evidence regarding the timing of AG Goertzen’s decision was admitted as circumstantial evidence. The decision itself was not evidentially significant as AGs have prosecutorial discretion to take unprecedented steps.[xxxi] The evidence was only significant when examined in the specific context in which it was made right after opposing parties held press conferences and repeatedly asked questions in the Legislature. The circumstantial evidence was only relevant to the question of fact only after inferences were draw from the events that preceded it.
Inferences were also drawn from the relationship between the timing of AG Goertzen’s decision and his intention to seek a second opinion. In her arguments examining the content of the “tweet”, defence counsel deduced AG Goertzen’s intention of acting in favour of the government of the day and addressing public concerns. The defence connected this intention with the decision to seek a second opinion, arguing that the decision was based on an improper motive and biased purpose. Although the “tweet” itself was strong evidence supporting an argument that Nygard’s right had been breached, its evidentiary value was greatest when examined in conjunction with the surrounding circumstances. The “tweet” was sent after AG Goertzen made the decision to seek a second opinion, and after opposing parties applied pressure through news conferences and repeated questioning in the Legislature. This use of contextual evidence proved that the “tweet” not only showed a breach of AGs responsibilities but further demonstrated an impact of political pressure and partisan concern on the issue at bar.
The Court’s admission of and reliance on circumstantial evidence and inferences affirmed evidentiary principles established in our Canadian legal system. It demonstrated that circumstantial evidence can be admitted only when the inferences drawn from the contextual circumstances were relevant and material to the question of fact. In the case at bar, the circumstantial evidence and series of events established a factual basis from which improper motive and infringement of rights could be reasonably inferred. This demonstrated that circumstantial evidence could play an essential role in examining the impact of political pressure and partisan concerns about prosecutorial procedures and decisions.
Evidentiary Value for Arguments Examining Political and Partisan Pressure
In recent years, political pressure and partisan concerns have increasingly interfered with prosecutorial procedures and decisions. One of the most well-known incidents was perhaps the SNC-Lavalin affair, the former Prime Minister’s Office and the Privy Council allegedly attempted to influence the prosecutorial decision.[xxxii] Meanwhile, in Ontario, prosecutors documented 28 instances in which police officers attempted to impede prosecutorial decisions by being intentionally untruthful. [xxxiii]
The case at bar is significant because it illustrates how circumstantial and contextual evidence can play a role in demonstrating the impact of political pressure and partisan concerns about prosecutorial decisions. The Court’s admission and reliance on this evidence in reaching its decision presented evidentiary value in proving undesirable pressure on prosecutorial decisions. It also sets a precedent for future cases, thereby reinforcing the rule of law by requiring prosecutorial decisions and procedures to remain impartial and independent from partisan and political influence.
Endnotes:
[i] R v Nygard, 2025 MBPC 43 [Nygard], online: < https://canlii.ca/t/kc9lr >.
[ii] Ibid at para 17.
[iii] Ibid at para 19.
[iv] Ibid at para 21.
[v] Ibid.
[vi] Ibid at para 22.
[vii] Ibid at para 24.
[viii] Ibid at para 25.
[ix] Ibid at para 2.
[x] Ibid at para 49.
[xi] Ibid at para 71.
[xii] Ibid at para 71.
[xiii] Ibid.
[xiv] Ibid at para 67.
[xv] Ibid.
[xvi] Ibid.
[xvii] Ibid.
[xviii] Ibid at para 51.
[xix] Ibid at para 66.
[xx] Ibid at para 66.
[xxi] Ibid at para 64.
[xxii] Ibid.
[xxiii] Ibid.
[xxiv] Ibid at para 68.
[xxv] Ibid.
[xxvi] Ibid.
[xxvii] Ibid.
[xxviii] Ibid at para 73.
[xxix] Daryl Royer, “Understanding Circumstantial Evidence In Criminal Trials” (22 June 2023), online (website):<darylroyer.ca/understanding-circumstantial-evidence-criminal-trials/> [perma.cc/G59L-KXQC].
[xxx] Ibid.
[xxxi] Nygard, supra note i at para 50.
[xxxii] Brian Lee Crowley, “Prosecutorial Independence at the Heart of Lavscam: Brian Lee Crowley for Inside Policy” (29 March 2019), online (website): <macdonaldlaurier.ca/prosecutorial-independence-heart-lavscam-brian-lee-crowley-inside-policy/> [perma.cc/X64G-85PL].
[xxxiii] Michael Spratt, “Police Pressure Threatens the Independence of our Justice System”, Canadian Lawyer (17 October 2025),online:<canadianlawyermag.com/news/opinion/police-pressure-threatens-the-independence-of-our-justice-system/393225> [perma.cc/3V4N-CFBV].
