A Winnipeg judge shouldn’t stop a sexual assault case against former fashion mogul Peter Nygard from moving forward despite his defence’s concerns about police failing to retain records from over three decades ago, a Crown prosecutor argued Tuesday.
Saskatchewan-based Crown attorney Rob Parker said there isn’t anything significant enough about the lost files to prevent Gerri Wiebe, Nygard’s lawyer, from a fulsome cross-examination of the woman at trial in December.
“The police cannot be expected to preserve everything that comes into their hands in the off chance that it might be relevant in the future,” Parker said to Manitoba provincial court Judge Mary Kate Harvie on Tuesday in a Winnipeg courtroom.
“You have to come to the determination that the loss of the evidence is so prejudicial … that the right to a fair trial was impaired.”
Nygard, 84, is charged with unlawfully confining and sexually assaulting a woman at his Winnipeg warehouse apartment in 1993, though charges weren’t formally laid until after a Winnipeg police investigation in 2020.
The woman, whose identity is protected by a publication ban, spoke with Winnipeg police and a B.C. RCMP officer shortly after she alleges the incidents occurred.
Court heard on Monday that the woman’s mother called police in November 1993 when she failed to contact her parents after travelling from Vancouver to Winnipeg to meet with Nygard about work.
During a wellness check, she told a Winnipeg police officer, “I am safe, I am fine, I will be fine,” court documents say.
A Mountie with the North Vancouver RCMP detachment followed up with the woman the day she arrived back in Vancouver. Nothing more formal came of those discussions at the time.
When Winnipeg police picked up the investigation in 2020, they spoke with those officers again. Neither was able to locate documents associated with their discussions with the woman 27 years earlier.
The RCMP officer told police he recalled the woman saying while at a social event, she started to feel off and suspected she may have been drugged. She worried she was being watched in a washroom, according to the officer’s account.
The officer said they discussed whether there was any recourse possible since she wasn’t able to prove anything, court heard.
He did not recall taking a formal statement or whether anything explicitly criminal was alleged in 1993, though he told Winnipeg police in 2020 that he had a hunch something more occurred than what the woman was saying.
Whatever documents were made at the time are presumed to have been lost or destroyed as part of in-house file clearing policies by police.
Wiebe contends the officers, particularly the Mountie, had a duty to preserve the records. Failure to do so constitutes “unacceptable negligence” and will deprive Nygard of a fair trial, because the complainant can’t be sufficiently cross-examined on what she may have told police in 1993, Wiebe argued.
It wasn’t possible to determine exactly what policies were in place either with Winnipeg police or RCMP at the time when it comes to file retention and purging timelines. Wiebe said that’s a problem given that survivors of sexual assault often take years to share full accounts with police.
Judge Harvie echoed that sentiment. She also said if she could determine the file retention and deletion policies at the time were “unreasonable,” that could lead her to find the policy itself was negligent.
Wiebe wants a stay of proceedings before the trial starts, which is scheduled for the week of Dec. 8.
Parker said to do that, Harvie would have to accept police were unacceptably negligent and determine specifically what is or is not a reasonable amount of time for police to hold files.
That would impose a legal obligation to retain virtually all records of contact with people, including where no crime is reported initially, “potentially forever on the mere possibility that some decades later there’s a report of a sexual assault or some other crime,” said Parker.
“It’s a bridge too far,” he said.
“To say … you had a hunch something was going on more than what she told you, and you had an obligation to hold onto that file in perpetuity because we all know that sexual assault complaints are often delayed … the court is going to be setting an extremely high burden … on the police.”
Parker disagrees with Wiebe’s assertion that the absence of those documents prevents her from mounting a robust cross-examination.
“She can attack the credibility of the complainant,” he said.
Harvie will take the following weeks to decide.
Nygard remains in custody in Ontario. He is serving an 11-year sentence after being convicted there of sexual assault offences from the 1980s to mid-2000s. He is appealing.
He also is charged with forcible confinement and sexual assault for incidents that allegedly took place in Quebec between 1997 and 1998.
