A Crown attorney told the Nova Scotia Court of Appeal on Tuesday that the judge who acquitted Matthew Albert Percy of three sex-related charges in the first of four separate trials erred in three ways in making that decision.
The 36-year-old Halifax man is accused of sexually assaulting four different women from 2013 to 2017 and using his cellphone to make surreptitious video recordings of the encounters.
Percy is being tried separately in each case.
In the first trial, held in Halifax provincial court in August 2018, Judge William Digby found Percy not guilty of sexual assault, choking and voyeurism due to reasonable doubt about the question of consent. The complainant was a Saint Mary's University student and the alleged assault occurred at Percy's apartment after a night of drinking. A video Percy recorded on his phone of the woman performing oral sex was played at trial.
Percy is a former groundskeeper at the university located in Halifax's south end.
Crown attorney Glenn Hubbard presented submissions to Appeal Court Justices Duncan Beveridge, Anne Derrick and David Farrar on Tuesday.
Hubbard suggested to the court that Digby focused on a point in the original trial when the complainant was undergoing cross-examination. She was asked if the oral sex was consensual and replied that it was, although she was very flustered on that, a key point that the judge referred to in his decision as raising doubt as to whether the sexual activity was forced or not. But Hubbard submitted that Digby had lost sight of the totality of the evidence that suggested the woman had acquiesced out of fear.
At one point in the trial transcript, Hubbards pointed out, she said, “I was willing to do anything to prevent violence.”
Hubbard told the court the second point in which he felt the judge erred rests with the decision to not admit a second video recording of a different incident be entered as evidence referred to as a “similar fact.” The video later was a key piece of evidence in Percy's second trial.
In another provincial court trial last December concerning a different victim – also a SMU student – in an incident which happened in her dorm room at Saint Mary's, Judge Elizabeth Buckle found Percy guilty of sexual assault and voyeurism. At that trial, a video was played that showed Percy having intercourse with the victim while she was unconscious.
Hubbard told the Appeal Court judges that Digby erred by not allowing the second video to be applied to the charge of surreptitiously recording the encounter, instead ruling it inadmissible in an overall credibility aspect.
“Once he mishandled Count 3, there was, I submit, a domino effect toward Count 1,” Hubbard said. “Because if he were to find that there was evidence of a surreptitious recording, the fact that this happened during a sexual assault increases … the specific similarity that joins the events.”
The third point Hubbard submitted as grounds for the appeal is how the judge assessed the fact the woman can be heard giggling at one point during the video. In his decision, the judge writes that he can't imagine why anyone would laugh under those circumstances. There is also the fact she pulled back at one point to spit on Percy's penis at one point when he asked her to do so, which the judge suggested was an indication of being a willing participant.
This, Hubbard submitted, is where the judge fell victim to “rape myths” that a victim should behave in some way consistent with common sense, when they do not.
She uses laughing as a sort of defence mechanism, Hubbard said. And she was going along with Percy's request out of fear of violence.
Legal Aid lawyer Roger Burrill handled the defence response to the Crown's appeal submissions.
His argument came down to the concept that the Canadian judicial system hinges on the fact the Crown must prove their case beyond a reasonable doubt and they failed to do so during the trial.
"Mr. Percy did not behave admirably or ethically," Burrill told the three judges. "But I would suggest to the court that he did not behave criminally on the basis of reasonable judgment that was made by Judge Digby here, on the facts."
The court reserved its decision.
Percy faces two more trials in the new year in the other cases.
He has already served his sentence for the guilty verdict but is in custody while awaiting the upcoming trials. He has applied for bail, with a hearing scheduled for Oct. 22.