Appeal Court won't overturn acquittal in SMU groundskeeper sex assault case

The Nova Scotia Court of Appeal has rejected a bid by the Crown to have former Saint Mary's University groundskeeper Matthew Percy face a second trial following his 2018 acquittal on a charge of sexual assault.

The charge relates to an incident in early September 2017. Percy and a woman he had met on campus met up in a bar in downtown Halifax. After a night of drinking, they agreed to share a cab.

Once they reached Percy's apartment in the city's west end, the woman agreed to accompany him inside. That's where she said he sexually assaulted her and surreptitiously video recorded their encounter.

The woman did not initially report her encounter. But two weeks later, another woman accused Percy of sexually assaulting her in a room in a Saint Mary's residence. When the first woman saw media coverage of the second incident, she went to police.

Percy was tried in Nova Scotia provincial court in August 2018. At his trial, the Crown tried to introduce video seized from Percy's cellphone that showed portions of the incident from mid-September 2017.

Percy had recorded both the sexual encounters he had that month. He claimed the women in each case consented to both the activity and the recording, something both women disputed. In fact, they said they had no knowledge he was recording them until told by police.

Appeal Court ruling

Judge Bill Digby refused to consider the video from the second encounter, saying it was not relevant. Digby also said that while he didn't believe all of Percy's testimony, contradictions in the woman's account of what happened that night left him with a reasonable doubt. He acquitted Percy.

"The trial judge correctly instructed himself that mere disbelief or outright rejection of an accused's evidence did not equate to proof of guilt beyond a reasonable doubt," Justice Duncan Beveridge wrote on behalf of the three-member appeal panel in a decision released Thursday. 

Beveridge said Digby was also correct in refusing to admit the video from the second incident.

"Evidence that an accused has committed discreditable similar acts in the past risks conviction not on the basis of the strength of the Crown's evidence on the particular charge, but because of a demonstrated propensity to commit that type of offence or the accused simply deserves to be punished."

Following his acquittal, Percy faced trial in connection with the second incident from that September. He was convicted of both sexual assault and voyeurism in that case.

Video from phone

In convicting him, Judge Elizabeth Buckle relied in part on the video from Percy's phone. She said it shows the victim in that case was unconscious and therefore unable to consent to the sexual activity. The judge also accepted the woman's evidence that she did not know she was being recorded.

Percy has indicated he will appeal that conviction but no date for that appeal hearing has been set yet.

Two other women have also accused Percy of sexual assault. Those trials are scheduled for later this year.

Percy has completed his sentence for his conviction, but he has been denied bail while awaiting trial in the two outstanding cases.