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To Grant, or Not to Grant Bail: That is The Question - Abhishek Makam

Trigger Warning: Article deals with sex trafficking.

One of the core principles of criminal justice is that everyone is innocent until proven guilty. This principle sits uneasy when it butts up against the issue of what to do with the accused prior to them being proven guilty. Is it fair to detain the accused only for them to be later acquitted? This is what bail attempts to solve. The two interests at odds are (1) the interests of the accused, and (2) the interests of the society. With regards to the interests of the accused, detaining the innocent is tantamount to false imprisonment – and that is simply unjust. Accordingly, the right to a “reasonable bail” is protected under section 11(e) of the Canadian Charter of Rights and Freedoms (“the Charter”). However, in the event the accused is guilty, society has an interest to bring them to justice; setting the accused free before trial makes that harder. Accordingly, the guidelines for denying bail are outlined under section 515(10) of the Criminal Code (“the Code”):

Justification for detention in custody

(10) For the purposes of this section the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court . . . ;

(b) where the detention is necessary for the protection or safety of the public . . . having regard to [the] substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) if the detention is necessary to maintain confidence in the administration of justice . . . .

Judges are asked to balance these two interests and decide whether to grant bail or not to grant bail to the accused. In the era of COVID-19, this balancing act becomes much more difficult because the presence of an ongoing pandemic makes the imprisonment of the accused riskier than under normal circumstances, especially if they have comorbidities that places them at a higher risk of death.

Nygard’s potential bail plan

These are the circumstances under which Peter Nygard, a 79-year-old fashion mogul, was seeking bail pending his hearing for extradition to the United States in the Manitoba Court of Queen’s Bench’s (“MBQB”) decision of United States of America v Nygard (“Nygard”). Mr. Nygard was being charged by the United States for, inter alia, operating a sex trafficking “industry” that ran for over 25 years and that involved minors. These are very serious crimes. However, on the other hand, Mr. Nygard is an elderly man with “coronary artery disease, diabetes and hypotension”. Along with his age, those are all comorbidities that make him highly susceptible to death if he contracts COVID-19 and the associated risks are quite real. At the time of Mr. Nygard’s bail hearing, there were 258 cases of COVID-19 at the location he was being held at.

Prima facie, Mr. Nygard has a right to bail. The onus is on the prosecution to prove that granting bail would trigger one of the three justifications listed under section 515(10) of the Code. Mr. Nygard’s proposed bail plan passed the first justification but failed under the second and third justifications. Accordingly, bail was withheld.

The bail plan consisted of Mr. Nygard’s wearing an ankle monitor and being unable to leave the house, except to see his doctors and lawyers. The perimeter of the house would have been under around-the-clock video surveillance. Furthermore, there would have been a security person at the house at all times who would also accompany Mr. Nygard whenever he would leave the home. All the expenses for these conditions would have been paid for by Mr. Nygard.

The rejection of the proposed bail plan

With respect to the first justification, the trial judge in Nygard noted that Mr. Nygard had a history of absconding from the authorities, noting his failure to attend court proceedings in the Bahamas in an unrelated matter. Considering his wealth, his means, and his history with the law, the trial judge acknowledged that he “is a flight risk” but that, nevertheless, given the thorough degree of monitoring in the bail plan, the first justification wasn’t warranted.

With respect to the second justification, the trial judge in Nygard was particularly concerned with witness-tampering. This concern was heightened by the fact that part of the allegations by the United States were that Mr. Nygard had a history of witness-tampering involving paying-off and intimidating witnesses. The judge in Nygard noted that the bail plan present only prevented Mr. Nygard from in-person witness-tampering. The bail plan failed to account for Mr. Nygard’s tampering with witnesses remotely. While fulfilling the conditions of his bail plan, Mr. Nygard could still tamper with witnesses through his loyal employees, by phone, or by online communications. By contrast, if he was in jail, his visitors and communications would be monitored. Accordingly, the second justification was warranted, and Mr. Nygard was denied bail accordingly.

The third justification for denying bail is evaluated objectively, involving a question of whether a reasonable person would consider detention to be necessary for the administration of justice with regards to, inter alia, the “apparent strength of the . . . case” and the “gravity of the offence”. As Nygard was a case of extradition, the standard was not whether Mr. Nygard would be convicted at trial in the United States; only whether he would be extradited in Canada. The threshold for extradition is only “whether there is a ‘plausible case’”. Conversely, the threshold for a judge to refuse extradition was high: the evidence has to be “‘so defective or appears so unreliable’ . . . that it would be ‘dangerous or unsafe’ to act on it”. Since the hearing in Nygard was only a bail hearing, the threshold was a bit lower than the threshold would be at the extradition hearing. Unlike at an extradition hearing, the threshold for the strength of the case at a bail hearing for extradition is almost always met. As a result, this qualification is largely determined by the severity of the offences. In Nygard, the allegations for sex trafficking were extensive and very serious. Even when considered against Mr. Nygard’s risk of COVID-19, the allegations and evidence were too severe, and the trial judge accordingly held that the third justification was warranted and therefore denied bail.

With respect to COVID-19 and bail, the trial judge in Nygard underscored that COVID-19 is a relevant circumstance in assessing all three justifications. However, “it is not a ‘get out of jail free card’” and, instead, it “is a factor, but [not the] only . . . factor”.

The rejection upheld on appeal

Mr. Nygard appealed this judgement to the Manitoba Court of Appeal (“the MBCA”) with some modifications to his bail plan. He proposed to add “electronic monitoring of his computer and cell phone” as well as “restricting his visitors to medical and professional advisers” only. These modifications addressed the gaps identified by the trial judge for the second justification. However, the MBCA held that the monitoring software could be easily circumvented by using a burner phone. As a result, the MBCA found that the second justification was still warranted. In the alternative, even if the second justification had not been warranted on the basis that these proposed changes cured its deficiencies, the third justification was nevertheless still operative. As neither the severity of the charges nor the quality of the evidence had changed, Mr. Nygard’s appeal was denied.

Denial of bail an inevitable result

Perhaps if Mr. Nygard was a bit more sympathetic and the charges less severe, or if he did not have a checkered history with the judiciary and the law, then he might have been granted bail. After all, it is hard to deny the defence’s argument that “if he contracts Covid-19 [then it is] a ‘death sentence’” for him. However, in the eyes of the MBQB and the MBCA, this risk was an acceptable cost of upholding justice.


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