Judge expects to have decision on Nygard motion to toss charges in about a month

A provincial court judge will spend the next several weeks deliberating whether convicted sex offender Peter Nygard’s Winnipeg charges should be tossed out because records of the complainant’s original interactions with police in 1993 have been destroyed.

Nygard, an 83-year-old disgraced fashion mogul, is set to stand trial in December on charges he sexually assaulted and forcibly confined a then-20-year-old woman in 1993 at his former corporate headquarters in Winnipeg.

On the day of the alleged assault, a concerned family member in B.C. who couldn’t reach the woman contacted RCMP in that province who, in turn, reached out to Winnipeg police to request a wellness check. WPS officers spoke with her, as did Mounties when she returned to her Vancouver home days later, provincial court Judge Mary Kate Harvie heard Monday.

She did not report the alleged sex assault and forcible confinement until 2020, when she spoke to Winnipeg police.

Nygard’s defence lawyer, Gerri Wiebe, brought forward a motion to have the case tossed from court on Monday. She argued the WPS and Vancouver RCMP’s destruction of their records of those meetings constitutes “unacceptable negligence” and breached Nygard’s right to a fair trial. It’s unclear what exactly was in the records or when they were destroyed.

Saskatchewan Crown attorney Rob Parker — who is prosecuting the case on behalf of the Manitoba government — argued Tuesday the destruction of the records was reasonable in the circumstances and that it did not represent “unacceptable negligence” as argued by Wiebe.

Based on the recollection of the alleged victim and of the Vancouver RCMP officer who spoke with her in British Columbia, Parker said the woman did not raise allegations of sexual assault when meeting with either Winnipeg or Vancouver police in 1993.

In the alleged victim’s statement in 2020, she said she told Winnipeg police in 1993 something to the effect of, “I’m safe, I am fine, I will be fine,’” and let them go, court heard Monday.

“We don’t have a report of sexual misconduct… the (Winnipeg) police are contacted on behalf of the mother of the complainant for the purposes of checking on the welfare, the well being of her daughter,” said Parker on Tuesday.

The RCMP officer who spoke with the woman in 1993 said in a recent statement that the woman did not indicate that she was held against her will in Winnipeg.

The woman, however, told police in 2020 that she had told the Mountie she had been forcibly confined. The Mountie did keep in touch with the woman out of suspicion more have occurred than she let on, conceded Parker.

Parker argued expecting law enforcement to retain records that didn’t contain criminal allegations indefinitely would be unreasonable. He argued if Harvie were to stay the charges as a result of the destroyed records, it would impose an undue burden on police.

“If you rule otherwise, you will be imposing a legal obligation on police forces to retain virtually all records of contacts with persons when no crime is reported for virtually, potentially, forever, on the mere possibility that some decades later there’s a report of a sexual assault or some other crime arising out of that initial contact,” he told Harvie.

“It’s a bridge too far.”

Harvie said she needed time to deliberate the motion, but told the lawyers Tuesday she aims to have a decision in about a month.

Nygard appeared via video from an Ontario prison, where he is serving an 11-year sentence after being convicted last September of sexually assaulting four women at his Toronto headquarters from the late 1980s to the mid-2000s.

This is not the first time Nygard’s lawyers have tried to have his case tossed.

Last spring, Wiebe argued a motion alleging former provincial attorney general Kelvin Goertzen had no grounds to seek a second opinion on the case from the Saskatchewan Public Prosecutions Service in November 2022, amid what Wiebe described as media and political pressure more than a year after the Manitoba Crown attorney’s office decided it would not pursue charges against Nygard.

The Saskatchewan review ultimately resulted in prosecutors in Manitoba authorizing the charges.

Harvie ultimately ruled that although Goertzen’s actions constituted an abuse of process, staying the charges against Nygard wouldn’t be “an appropriate remedy.”

erik.pindera@freepress.mb.ca