Appeal Court reserves decision in case of former SMU groundskeeper accused of sex assault

The Nova Scotia Court of Appeal has reserved its decision in the case of Matthew Percy, 36, a former Saint Mary's University groundskeeper who was previously acquitted on charges of sexual assault, choking and voyeurism stemming from a September 2017 incident.

Percy also faces similar allegations from three other women. In one of the cases, he was found guilty of the allegations.

On Tuesday, the Appeal Court heard arguments relating to Percy's acquital. A woman alleges Percy sexually assaulted her in his apartment after a night of heavy drinking.

But at trial in August of last year, Judge Bill Digby said the Crown had failed to prove the three charges against Percy: sexual assault, choking and voyeurism.

The last charge stemmed from videos police extracted from Percy's cellphone, showing him engaged in sexual activity with the complainant. She testified at the trial that she was unaware Percy was recording her and wouldn't have consented if she did.

The Crown attempted to introduce other videos taken from Percy's phone, which showed him engaged in sexual activity with one of the other women who complained about him.

Digby said the Crown failed to convince him the other video should be considered as "similar fact" evidence.

The Crown's appeal arguments

Crown prosecutor Glenn Hubbard cited that ruling in arguments Tuesday as one of the errors Digby made in acquitting Percy. Hubbard said if the judge had accepted that video as evidence of similar behaviour, it would have been much more likely that Percy would have been convicted, at least on the voyeurism charge.

Percy was convicted of voyeurism and sexual assault in a separate trial before a different judge in December 2018.  Those charges relate to a separate September 2017 incident involving the second of four women to complain about him.

Judge Elizabeth Buckle ruled that in the video she viewed, the woman was clearly unconscious, meaning she could not legally consent to the sexual activity. Buckle also found that Percy took the video without the victim's knowledge, so she convicted him on the second count of voyeurism.

The three members on the Court of Appeal questioned why the Crown was bringing up Buckle's decision. Hubbard responded that had Digby considered the video of the second woman, he might have reached a different conclusion on the question of consent.

Percy testified that the woman in the first case consented to the sexual activity shown on the video. The woman agreed that she did say yes, but Hubbard argued it should not be considered consent in the legal sense because she did so amid fears that Percy might hurt her if she refused.

'He did not behave criminally,' says defence lawyer

Legal aid defence lawyer Roger Burrill urged the Appeal Court not to overturn Digby's decision to acquit Percy.

"Mr. Percy did not behave admirably or ethically, but he did not behave criminally," Burrill told the court.

Percy is appealing his convictions for sexual assault and voyeurism. Separate trials involving the other two women who accused him are set for early next year.