Photo of Peter Nygard passport raises questions about claims it expired in 2020

Fashion mogul Peter Nygard says not only is he not a flight risk, he says he let a passport expire in September 2020.

However, a photo obtained by CBC News of what appears to be Nygard's Canadian passport shows an expiry date of March 19, 2025.   

• UPDATE: Passport damaged and replaced, Nygard lawyer says

Nygard, 79, is charged with nine counts of sex trafficking by force, fraud or coercion, transportation for the purpose of prostitution and illegal sexual activity and other related offences in New York. He's in custody at the Headingley Correctional Centre west of Winnipeg awaiting extradition to the U.S.

"I am not a flight risk," Nygard wrote in a sworn affidavit filed in Manitoba's Court of Queen's Bench on Jan. 3 to support his bail application.

•  Tune in to The Fifth Estate on Thursday to see the documentary.

Nygard says he's been in Canada since February 2020, despite the criminal investigation underway in the U.S., and says he has no plans to leave.

"I made no effort whatsoever to leave Canada although I certainly could have. In fact, I even allowed my passport to expire in September 2020 and did not renew it," Nygard wrote.

The affidavit does not say which passport he was referring to, but CBC has obtained a photo that came from someone with direct knowledge of the passport and its expiry date. The photo appears to show a Canadian passport in his name that is valid through 2025

"We cannot comment as the matter is before the courts," said Nygard's lawyer, Jay Prober, in an email to CBC News when asked about the discrepancy.

British Columbia lawyer and extradition expert Gary Botting says the apparent discrepancy is troublesome.

"It could be a simple mistake," Botting told CBC News. "But on the other hand, that's the kind of thing that you want to be sure of before you put it into an affidavit. He's swearing to the truth of this."  

Botting says such a discrepancy could affect the judge's decision, especially if an accused has a history of failing to show up to court when required.

In January 2019, an arrest warrant was issued for Nygard in the Bahamas after he failed to appear in court for a sentencing hearing related to two contempt-of-court convictions stemming from an environmental dispute.

Months later, Nygard got two of his North American doctors to write him letters explaining he wasn't able to fly because of poor health. Their affidavits were entered as evidence in Nygard's bail application in Winnipeg. 

The affidavits show that Nygard had flown to and from New York, Winnipeg and Los Angeles several times in 2019 after he said he was unable to fly to the Bahamas.

In a March 2019 affidavit, Winnipeg doctor Harvey Lee, who specializes in internal medicine, endocrinology and metabolism, wrote that Nygard was in New York Jan. 14 to 21 under the care of his primary medical team there.

Dr. Lee said Nygard came to see him in Winnipeg on Jan. 26, but returned to New York a week later for further testing.

"For Mr. Nygard to fly safely I ordered his staff to get training on his defibrillator and take other precautions such as pressure stockings and wheelchair assistance," Dr. Lee wrote in a March 14, 2019 affidavit.

Nygard's California neurologist, Dr. Patrick Lyden, also wrote an affidavit on behalf of Nygard saying Nygard came to see him at his Los Angeles office on April 23, 2019.

It's not clear how many times Nygard travelled between New York, L.A. and Winnipeg before returning to Canada to stay in February 2020, nor why he was able to make those trips but not fly to the Bahamas to appear in court.

Bail plan and surety concerns

Nygard appeared by video at a two-day bail hearing last week in front of Justice Shawn Greenberg of the Manitoba Court of Queen's Bench. Nygard's lawyers had argued their client is not a flight risk but is at increased risk of dying from Covid-19 if he gets infected in jail because of his advanced age and deteriorating health.

Greenberg sent them back to the drawing board after raising concerns about their bail plan and in particular one of Nygard's two sureties.

Greg Fenske, a former Nygard company executive, testified he would put up a $1 million house he bought in Royalwood to secure his old boss's release. Court heard the house was purchased with Nygard's money, which is not how sureties work. 

The lawyer for the Attorney General of Canada said sureties are vetted and trusted by the court because they have "skin in the game" — something they will lose if an accused doesn't abide by bail conditions.

Fenkse also admitted to deleting a thousand documents after a grand jury subpoena was issued ordering the retention of all documents. 

Nygard's other surety is Steve Mager, a former Hells Angels associate who was twice convicted of cocaine trafficking. He testified that he would be willing to put up the $300,000 equity in his two houses to secure Nygard's release.

Mager says he met Nygard playing poker after he got out of prison, and Nygard gave him a second chance despite knowing his background. He says Nygard gave him a job in construction and later made him director of construction, which earned him a $130,000 annual salary.

Court heard Mager has a $750,000 mortgage on one of his two properties — a rental assessed at $221,000. Mager testified that he doesn't have a $750,000 mortgage and that it must be a mistake. He claimed his mortgage is more like $120,000.

However, land title and mortgage documents show Mager took out a $750,000 mortgage from Crosstown Civic Credit Union in February 2020.

Botting says Covid-19 could be a game changer, especially when the extradition process could take anywhere from two to 10 years.

"There is a real concern that Covid is spreading in remand centres and in penitentiaries," Botting said. "So that could very well be a concern that a judge has, which might make her consider alternative measures such such as an ankle bracelet, house arrest, that type of thing."

Botting says Nygard is presumed innocent until a verdict is rendered in a U.S. court.

"Extradition hearings are not trials, and for that reason he should be treated accordingly … we're talking about a very long period of time in which the individual is incarcerated without having been found guilty of anything," Botting said.

Scott Farlinger, the lawyer for the Attorney General of Canada, wouldn't comment on this case, but said ordinarily if an accused is granted bail while awaiting extradition, his office would ask that a condition of release be they surrender their passports.

Farlinger says it would be up to the judge hearing the case to decide whether to grant the request.

Nygard's bail hearing resumes on Thursday.