Fashion mogul Peter Nygård has been a mainstay in the Canadian media since his December 2020 arrest in Winnipeg. He currently faces charges of sexual assault and forcible confinement in Toronto and Montréal. These two charges carry serious legal consequences and the possibility of extensive jail time for the Finnish-Canadian founder of Nygård International.
The Offence of Sexual Assault in Canada
Section 271 of the Criminal Code sets out the offence of sexual assault. While the Code does not expressly define “sexual assault”, it has been broadly interpreted in case law as any non-consensual application of force of a sexual nature. Depending on the circumstances of the case and the age of the complainant, a sexual assault conviction in Canada can carry a jail term of up to 14 years.
The Supreme Court of Canada in R. v. Chase identified a non-exhaustive list of relevant factors for establishing sexual assault. These factors are:
- The body part touched;
- The nature of the contact;
- Any words or gestures accompanying the contact, including threats; and
- The accused person’s intent or purpose, including the presence or absence of elements of sexual gratification.
The Court clarified in Chase that determining whether an assault is sexual in nature is an objective test:
“Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer … The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant …”
The intent of the accused – i.e. whether their motive was sexual gratification – may be a factor when determining whether the impugned conduct is sexual in nature. However, the Supreme Court emphasized in Chase that this is one of many factors to be considered, and its weight will vary depending on the circumstances of the particular case.
Forcible confinement is governed by section 279(2) of the Criminal Code of Canada and occurs when a person confines another person without legal authority. This type of unlawful confinement occurs when the accused uses or threatens force against the victim.
The Supreme Court of Canada has held that forcible or unlawful confinement may not always involve physical control, violence, or restraint of a person to a particular place. The offence requires a restriction of the victim’s liberty, but not necessarily their ability to escape. Instead, confinement may be caused by non-physical or psychological means, including fear or intimidation. While the definition of forcible confinement adopted by the courts allows for varying circumstances in each individual case, it generally falls within the rubric of the “illegal domination of one person by another” (see R. v. Luxton).
Charges of forcible confinement may be connected to related offences involving assault, sexual assault, domestic violence, or murder.
Peter Nygård is accused of using his business, Nygård International, to lure and traffic women and girls for sexual purposes. It is alleged that he did so for himself and his associates on several occasions dating back 25 years in Canada, the United States, and the Bahamas. He has faced numerous sexual abuse and harassment allegations in the past.
Nygård’s arrest in December 2020 came at the request of the U.S. government pursuant to an extradition treaty. He faces sex trafficking and racketeering charges in New York.
In the fall of 2021, on the same day Nygård consented to his extradition to the U.S., Canada laid six counts of sexual assault and three counts of forcible confinement against Nygård in Toronto. Additional charges of sexual assault and forcible confinement were recently filed against Nygård in Montréal, relating to alleged offences involving a single victim from 1997 to 1998. He has remained in prison since his arrest and was most recently denied bail in January 2022.
Canada’s Justice Minister, David Lametti, recently stated that Nygård will be surrendered for extradition once proceedings against him conclude in a Toronto court. The Minister has emphasized the importance of seeing that “our Canadian legal process is completed so that all parties, including victims, have an opportunity to see justice served.” His next court appearance in Toronto is scheduled for April 20, 2022.
Barrison Law understands the serious legal consequences and social stigma associated with sexual offences. Our team of criminal defence lawyers is experienced in defending clients against charges of sexual assault and human trafficking. We help clients at all stages of the criminal justice process, from bail hearings to trial.
Our office is conveniently located just steps from the Durham Consolidated Courthouse. We accept cases on private retainer and Legal Aid and offer 24-hour phone service. To schedule a confidential consultation on your criminal law matter, call us at 905-404-1947 or reach out online.