The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

CANADIAN fashion mogul Peter Nygard is seeking to have a Supreme Court judge recuse herself from presiding over his pending sentencing hearing due to her alleged bias.

Mr Nygard, in a notice of motion filed on June 18, has requested Justice Cheryl Grant-Thompson to recuse herself because of the presence, appearance, or likelihood of bias on her part.

Mr Nygard further asserts that Justice Grant-Thompson’s alleged bias “has or would affect or likely affect” him obtaining a fair hearing or fair hearings in the action.

Additionally, Mr Nygard says his constitutional right to a fair hearing as guaranteed by Article 20(8) of the Constitution has been and is being infringed or violated, or has been threatened to be infringed or violated.

Mr Nygard’s recusal motion marks the fourth judge he has filed recusal applications against concerning his legal battles with Save The Bays (STB), following retired Justice Rhonda Bain and fellow Justices Indra Charles and Keith Thompson.

It stems from Mr Nygard’s failure on at least several occasions to attend his own sentencing hearings—as ordered by the court—for breaching a court order prohibiting him from engaging in any illegal dredging near his Lyford Cay home.

The charges stem from a breach of retired Justice Bain’s July 13, 2013 injunction prohibiting him from engaging in dredging activities at his Simms Point/Nygard Cay property.

Justice Bain, in a written ruling last July, convicted Mr Nygard for engaging in dredging activities on the sea bed near Nygard Cay between March and April 2015, and again in October of 2016, despite her June 2013 injunction prohibiting him from doing so.

Justice Charles inherited execution of the sentencing for the case after Justice Bain retired.

Mr Nygard was absent on January 17 as ordered by Justice Charles before she transferred the matter to Justice Grant-Thompson; again on both January 21 and 28 as ordered by Justice Grant-Thompson, and again on March 13.

On January 29, Justice Grant-Thompson ordered Nygard’s “immediate arrest” for his failure to appear on three occasions up to that point to be sentenced for breaching Justice Bain’s order prohibiting him from engaging in any illegal dredging near his Lyford Cay home. Justice Grant-Thompson issued the bench warrant after saying she has “zero tolerance” for the Lyford Cay resident failing to honour her orders for him to appear in court for his own sentencing hearings.

At the time, she also ordered that Mr Nygard, 77, would have to show cause for why he should not be committed to prison for failing to show in court on those occasions. 

Mr Nygard subsequently appealed Justice Grant-Thompson’s order, and is further seeking an order from the appellate court that all matters in the Supreme Court proceed without him “being required or compelled by the court to be present,” and in “due consideration” to an order made in 2018 which he asserts brought the matter to an end.

Mr Nygard is also seeking to have all further proceedings in the action stayed pending the hearing of his constitutional motion, which was filed on January 28, concerning the infringement of his fundamental rights to both freedom of movement and detention. 

He further asserts that Justice Grant-Thompson erred in treating the contempt proceedings as criminal contempt proceedings, and that she erred in ordering the issuance of a warrant for his arrest, in spite of or at the same time as ordering him to show cause why he shouldn’t be committed to prison.

Meanwhile, STB attorney Fred Smith, QC, has previously called on Justice Grant-Thompson to jail Mr Nygard for two years for failing to attend his own sentencing hearings, as only the loss of his liberty for a “long period” would cause the “serial recidivist contemnor” to “heel” and respect the Bahamas’ administration of justice.

At the time, Mr Smith said a fine would be “peanuts” for a reported billionaire like Mr Nygard, and would do nothing to instill respect for the country’s judicial system in someone who told a former Supreme Court judge to her face that her proceedings were “the biggest waste of time that I’ve ever experienced”.

Mr Smith also said it is “self-evident” that Mr Nygard’s conduct and repeated absences are making it more difficult for the court to enforce the orders it already made and to consequently conduct the mitigation and sentencing hearings.

Mr Smith further accused Mr Nygard and his attorneys of avoiding the inevitable “day of reckoning.” He said a message needs to be sent publicly that the court “will not entertain contemnors and/or their lawyers when they repeatedly slap the court in the face.”