By NICO SCAVELLA
Tribune Staff Reporter
ATTORNEY Fred Smith, QC, yesterday called on a Supreme Court judge to jail Canadian fashion mogul Peter Nygard for two years for failing to appear in court yet again to attend his own sentencing for breaching a court order prohibiting him from engaging in any illegal dredging near his Lyford Cay home.
Mr Smith submitted to Justice Cheryl Grant-Thompson that a “severe custodial sentence” should be levied on Mr Nygard, 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.
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 was “the biggest waste of time that I’ve ever experienced”.
Mr Smith also revealed that Mr Nygard is now faced with another committal application for breaching Justice Keith Thompson’s order for him and his attorney Keod Smith to immediately remove a sworn affidavit from Justice Grant-Thompson’s court file containing “very sensitive” client/attorney information from Mr Smith’s law firm Callenders & Co.
Mr Smith said a number of emails containing client/attorney information were previously stolen from his law firm via some unknown means, but were later exhibited in that affidavit by Keod Smith, which was in support of various applications by Mr Nygard to set aside the orders Justice Grant-Thompson made concerning his contempt of court convictions and to be used in his own mitigation and sentencing hearing.
Lawyers are also seeking leave to have Keod Smith committed to prison for breaching the injunction as well, Mr Smith said.
Mr Smith’s comments came during proceedings that marked the fourth time to date Mr Nygard has failed to attend his own sentencing hearings as ordered by the court. The previous three times came on January 17 as ordered by Justice Indra Charles before transferring the matter to Justice Grant-Thompson; and January 21 and January 28 as ordered by Justice Grant-Thompson.
Nygard was ordered to show cause why he should not be cited and committed to prison for contempt for failing to show up in court to be sentenced for dredging the sea bed near his Lyford Cay/Simms Point home between March and April 2015, and again in October of 2016, despite a June 2013 injunction barring him from doing so.
Yesterday, Mr Nygard was nowhere to be found as the bailiff called out his name three times to mark his appearance. Mr Smith said as a result of his absence, Mr Nygard is in contempt. And that, Mr Smith submitted, was notwithstanding his required attendance for his mitigation and sentencing hearings for his second and third of three contempt of court convictions.
Mr Smith 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.”
Meanwhile, Mr Nygard’s attorney Carlton Martin accused Mr Smith of using the Supreme Court to “stage his shenanigans” in an “abusive way”. He further submitted that Mr Smith is “obsessed” with My Nygard, something Mr Smith refuted.
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 former Justice Rhonda 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.
The matter continues on March 29.