A former groundskeeper at Saint Mary’s University is appealing his convictions for sexual assault and voyeurism from an encounter with a student in her dorm room in September 2017.
Matthew Albert Percy, 36, was found guilty last December in Halifax provincial court of having intercourse with the young woman while she was unconscious and recording portions of their interaction on his iPhone without her consent.
Percy was handed a 30-month sentence in May, but the judge deducted 768 days as credit for his time on remand, leaving him with 144 days to serve.
The jail time will be followed by three years’ probation, with a condition that Percy participate in sexual offender programming and any other counselling his probation officer deems necessary.
In a notice of appeal filed from the Northeast Nova Scotia Correctional Facility in Pictou County, the Halifax man is asking the Nova Scotia Court of Appeal to quash the convictions and either order a new trial or enter acquittals.
As grounds of appeal, Percy claims ineffective legal representation by Brad Sarson at trial and says Judge Elizabeth Buckle concluded the complainant was unconscious in a video “without basis in fact.”
Percy also says consent was given in both videos viewed at trial yet the judge erred in finding consent was no longer present in the second video.
If the Appeal Court orders a new trial, Percy wants it to be before a Nova Scotia Supreme Court judge and jury.
The incident occurred Sept. 15, 2017, after Percy walked the complainant home from downtown Halifax. Percy worked at the university at the time.
Percy used his phone to record two videos of sexual activity with the woman, who was heavily intoxicated after a night out with friends and does not recall consenting to sex.
The second video shows Percy having intercourse with the woman while she is unresponsive. Her eyes are closed and her head is turned to the side, her arms hanging motionless.
The woman is silent for more than two minutes. After Percy sets the phone down on the bed, she can be heard moaning. He asks her several times if she’s OK or wants him to stop, and she gives an inaudible, one-word response.
“For approximately 90 seconds to two minutes, (the woman) was unconscious while Mr. Percy had intercourse with her,” Buckle said in her December decision.
“The law is absolutely clear that an unconscious person cannot consent to sexual activity.”
The judge said Percy took no steps to ensure the woman was consenting to intercourse and recorded the videos without her knowledge.
Percy is accused of raping three other women in Halifax between 2013 and 2017.
He was found not guilty in provincial court last August on charges of sexual assault, choking and voyeurism, from an incident with a different SMU student at his Armdale apartment Sept. 3, 2017.
The Crown appealed the acquittal, claiming the trial judge erred in finding the prosecution failed to prove the woman had not consented to sex. The Appeal Court will hear that appeal in October.
Percy also has two trials scheduled early next year in Supreme Court.
The first trial will begin in February and involves a charge of sexual assault causing bodily harm, from an encounter with a woman at a Dalhousie University student residence in December 2014.
He will stand trial in March on charges of sexual assault causing bodily harm, assault and choking, from an incident at a woman’s apartment in November 2013.
Percy will appear in Supreme Court in Halifax on Thursday for an application by Sarson to be removed as his lawyer.
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