Disgraced fashion mogul Peter Nygard’s lawyer wants the Winnipeg sexual assault trial slated for later this year to stop before it gets started because police failed to retain records related to allegations that stem from the 1990s.
Nygard appeared via video link in a Winnipeg courtroom on Monday where his lawyer, Gerri Wiebe, filed a motion requesting a stay of proceedings.
Wiebe said Nygard has been denied the right to a fair trial on the basis that officers who interviewed the woman in the case in 1993 were unable to produce documentation from their exchanges at the time.
The woman, whose identity is protected under a publication ban, alleges Nygard sexually assaulted her at his Winnipeg warehouse apartment in November of that year.
She went on to speak with officers, including in Vancouver. The investigation was launched by Winnipeg police in 2020.
The woman said she spoke with two police officers and a social worker in 1993 and told them, “I am safe. I am fine. I will be fine,” according to court documents.
An officer with the North Vancouver RCMPÂ followed up with the woman shortly after in Vancouver.
As part of the investigation, officers who spoke with the woman at the time were interviewed. They were asked for any notes, interview details or documents related to their discussions with the complainant, but they couldn’t locate them, court heard.
Wiebe said the RCMP officer told Winnipeg police the woman said she was at a “social gathering” and went to the bathroom when she began to suspect she had been drugged. She also told the officers she feared she was being watched and made an effort to leave.
Winnipeg-based lawyer Gerri Wiebe is representing Peter Nygard on charges, including sexual assault, that he faces in Montreal and Winnipeg. (Gindin Wiebe Segal/gindinsegal.ca)
The officer also told investigators there was a discussion of whether there was any recourse possible as she wasn’t able to prove anything, court heard.Â
“That’s an unusual statement,” provincial court Judge Mary Kate Harvie said.
“That statement screams that there was more followup,” Wiebe said in response.
“We don’t know how these records were stored. We don’t know what became of them.… We don’t know anything about the retention policies that were in place in the North Vancouver RCMP office.”
Prior case law
Wiebe cited unrelated cases that bear some resemblance to Nygard’s case, insofar as police or prosecutors lost or were unable to produce records related to a complainant’s original accounts.
In some cases, the courts decided against ruling there was unacceptable negligence involved because adequate substitutes for missing documentation were available to defence teams. Wiebe argued that’s not the case here.
Available testimony from the complainant and the Vancouver RCMP officer “is in no way an adequate substitute,” she said.
“The complainant here can say anything she wants to about what she did or didn’t tell police … and I have virtually nothing to challenge that with,” Wiebe said. “She can say, ‘I don’t remember’ … and I have no ability to refresh her memory.”
“You need to have actual facts … not sort of vague recounts of what the actual document contained,” she said.
WATCH | Peter Nygard sentenced to 11 years in prison:
Peter Nygard sentenced to 11 years in prison
Disgraced former fashion tycoon Peter Nygard was sentenced to 11 years in prison on Monday, with the judge in the case calling him a “sexual predator” who used his wealth and power to take advantage of women.
Wiebe said the same can be said of the RCMP officer’s account: “It’s vague. It’s imprecise. It’s completely lacking any real detail.”
Wiebe wants the court to find evidence of unacceptable negligence — a violation of Nygard’s Charter right to a fair trial — and stay the proceedings. If not, the trial is scheduled to take place in December.
Saskatchewan Crown Rob Parker, representing the prosecution, is fighting the motion. He is expected to make submissions in court on Tuesday.
Nygard is currently serving an 11-year prison sentence after he was found guilty in an Ontario court of four counts of sexual assault for offences from the 1980s to mid-2000s. He is appealing the conviction and sentence.
He also faces charges of sexual assault and forcible confinement for incidents that allegedly took place between Nov. 1, 1997, and Nov. 15, 1998, in Montreal.
WATCH | Nygard lawyer wants court to toss sex assault charge due to lost evidence:
Nygard’s lawyer wants court to toss sex assault charge due to lost evidence
The lawyer for Peter Nygard argues that because police didn’t retain or can’t find documentation from original discussions with a complainant from 1993 — when she alleges the former fashion mogul sexually assaulted her — the Manitoba judge overseeing the case should issue a stay of proceedings.