Background
Peter Nygard was convicted by a jury in the Ontario Superior Court of Justice on November 12, 2023 of four counts of sexual assault involving complainants K.R., N.G., M.N., and K.H. He was acquitted on one sexual assault count and one count of unlawful confinement. On September 9, 2024, the sentencing judge imposed a term of 11 years’ imprisonment after considering extensive evidence about Nygard’s age and deteriorating health.
On appeal, Nygard raised two grounds of conviction appeal. First, he argued that expert evidence from Dr. Lori Haskell on the neurobiology of trauma responses was improperly admitted. Second, he contended the trial judge erred in permitting the jury to use similar fact evidence on a cross-count basis — that is, to treat evidence from one complainant as supporting another complainant’s allegations. He also sought leave to appeal sentence and brought a motion to admit fresh evidence in the form of a geriatric medicine report prepared after sentencing.
The appeal was heard on May 4, 2026 by Huscroft, Pomerance, and Osborne JJ.A. The proceedings are subject to a publication ban under s. 486.4 of the Criminal Code.
The Court’s Holding
The court agreed that Dr. Haskell’s expert evidence had been admitted in error, consistent with its earlier ruling in R. v. Hoggard, 2024 ONCA 613, where the same expert’s evidence was found inadmissible in analogous circumstances. However, the court applied the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, finding the error harmless. The trial judge’s jury instructions concerning Dr. Haskell’s evidence were clear, comprehensive, and materially similar to those upheld in Hoggard. The jury asked no questions about Dr. Haskell’s evidence and returned an acquittal on one count, demonstrating it did not misuse the impugned testimony.
On the similar fact evidence ground, the court held the trial judge committed no error. The trial judge identified seven meaningful similarities across the complainants’ accounts that were sufficient to dispel coincidence and were directly relevant to the complainants’ credibility. The court afforded substantial deference to the trial judge’s weighing of probative value against prejudicial effect, finding his instructions to the jury carefully delineated how the evidence could and could not be used.
The fresh evidence motion regarding Nygard’s post-sentencing geriatric report was dismissed. While the evidence was relevant and credible, the court found it could not reasonably have affected the sentencing outcome. The sentencing judge had already thoroughly addressed Nygard’s health, found no evidence that correctional authorities could not manage his needs, and noted the availability of statutory mechanisms — including early parole under s. 121(1) of the Corrections and Conditional Release Act — for cases of serious health deterioration. Leave to appeal sentence was granted but the sentence appeal was dismissed.
Key Takeaways
- Dr. Haskell’s trauma neurobiology evidence was again confirmed as inadmissible, but the curative proviso can save a conviction where jury instructions clearly limit the evidence’s permissible use and the record demonstrates the jury did not misuse it.
- Trial judges retain substantial discretion in permitting cross-count use of similar fact evidence; appellate courts will defer to that balancing unless there is a legal error, error in principle, or misapprehension of the evidence.
- An accused’s advanced age and poor health are relevant sentencing considerations but do not alone justify a sentence disproportionate to the gravity of the offences, particularly where correctional and statutory health-accommodation mechanisms remain available.
- Fresh evidence tendered on a sentence appeal must be capable of reasonably affecting the result; a post-sentencing medical report will not meet that threshold where the sentencing judge has already conducted a thorough health inquiry.
Why It Matters
This decision cements the Ontario Court of Appeal’s post-Hoggard framework for handling Dr. Haskell’s neurobiology-of-trauma evidence: admission is error, but the error is curable where trial judges give careful limiting instructions and the record discloses no jury misuse. Crown and defence counsel in sexual assault trials now have a clear template for both the nature of the required instructions and the indicators — such as acquittals on related counts — that a court will examine when deciding whether to apply the proviso.
The decision also reinforces that sentencing in serious sexual violence cases will not be substantially reduced on health grounds alone. By pointing to the statutory early-parole mechanism as an adequate safety valve, the court signals that disproportionality arguments tied to custodial hardship face a high bar when correctional authorities retain capacity to address an offender’s medical needs.