Court of Appeal for Ontario

Date: 2025-06-23
Docket: COA-24-CR-0062
Panel: Fairburn A.C.J.O., Huscroft and Monahan JJ.A.

Between:
His Majesty the King (Respondent)
and
Gerrard De Souza (Appellant)

Counsel:
Anthony Moustacalis and Aidan Seymour-Butler, for the appellant
Akshay Aurora, for the respondent

Heard: June 17, 2025

On appeal from the convictions entered on August 30, 2023 and the sentence imposed on January 25, 2024 by Justice Kate Doorly of the Ontario Court of Justice.

Reasons for Decision

Introduction

[1] This is an appeal from conviction for indecent assault and sexual assault. [1] The circumstances involve a lengthy period of sexual abuse by an older brother.

[2] At the conclusion of the oral hearing, we dismissed the appeal with reasons to follow. These are our reasons.

[3] The appellant raises three grounds of appeal, each directed at the trial judge’s resolution of credibility and reliability in this case involving two witnesses – the complainant and the appellant.

Grounds of Appeal

[4] First, the appellant claims that the trial judge erred when she made ungrounded assumptions rooted in stereotypes. Specifically, he claims that the trial judge made two such errors: (a) assuming the closeness of a “nuclear family”; and (b) assuming that an accused responds in a particular way when confronted with allegations of this nature. Second, the appellant argues the trial judge erred by dismissing substantial inconsistencies in the complainant’s evidence. Third, the trial judge erred given there was an uneven approach to assessing the evidence of the complainant and the appellant.

The "Nuclear Family" and Stereotype Allegations

[5] Concerning the first ground of appeal, it is true that the trial judge mentioned the appellant’s nuclear family when assessing his evidence. In particular, she described his “nuclear family” as “close”. There was evidence supporting that finding, including from the appellant, that he lived with his parents well into adulthood and retained a good relationship with his sister. This stood in contrast to his evidence about the complainant. The trial judge noted the appellant’s description of his relationship with his brother was inconsistent: he stated that it deteriorated during adolescence and later suggested that it deteriorated only after their father had died. At points, the appellant acknowledged that he would only see the complainant at “obligatory” family gatherings and at the family business.

[6] It is within that context that the trial judge said the following:

I appreciate that the answers to these questions can be somewhat nuanced in the context of a family relationship and family members may disagree on when and why relations soured, but Gerrard’s evidence struck me as guarded and terse on these issues – issues one would expect him to have some familiarity and opinion about. His evidence, for example, that he didn’t see Peter’s boys because “that’s just what Peter and his wife decided to do” struck me as particularly incredible. As an adult, Gerrard lived with his parents and appeared close to his sister – the nuclear family was close. So to shrug off Peter’s decision not to come around with his boys was in stark contrast with Gerrard’s relationships with the rest of the family. His answer had no coherence in the context of his family life.

[7] Given the evidentiary backdrop for these comments and the appellant’s testimony, including about his closeness to his family, it was open to the trial judge to conclude as she did. Quite simply, there were no stereotypes at work. The trial judge was simply summarizing the evidence and observing the lack of coherence in the appellant’s evidence when considered in the context of the family life as a whole.

The "Cavalier" Response

[8] The other matter alleged to raise stereotypical reasoning is the trial judge’s description of the appellant’s response to the allegation, when he was first confronted by the complainant, as “cavalier”. Specifically, the appellant testified that the complainant had become “aggressive” during a dispute over their father’s estate. He testified that the complainant threatened to go to the police and tell them that the appellant had sexually assaulted him. He testified in cross-examination that he was not worried about those threats because they were untrue.

[9] It is in that context that the trial judge made the following observations:

Gerard was also not credible regarding how he felt about Peter’s threat to have charges laid. That he didn’t take any action as suggested by the Crown – calling up potential complainants for example – is perhaps understandable. But his evidence that he was not worried about Peter or other complainants because he knew the complaints were not true rings as not credible. He had already been through the criminal justice process once and found guilty and placed on a 6-month conditional sentence after no doubt, enduring bail conditions and some public embarrassment – even if restricted to his family. He was obviously aware of the impact of a complaint, and ultimately of a conviction. To be so cavalier about the results of another potential prosecution struck me as not credible. I appreciate that he ultimately acknowledged being concerned but then why testify to being otherwise?

[10] Like the nuclear family issue, the trial judge’s comments were entirely grounded in the appellant’s evidence. Her concerns over his credibility did not arise from an assumption as to how people should react when confronted with an allegation such as the complainant’s. They arose because the appellant’s evidence was internally inconsistent and did not make sense in the full context of the case.

Credibility and Reliability of the Complainant

[11] Concerning the second ground of appeal, the appellant contends that the trial judge erred when concluding that the complainant was credible, despite various flaws in his evidence. The appellant raises two specific concerns regarding those flaws. First, he argues that the complainant was unclear as to the frequency of the sexual attacks he endured. Second, he was unclear about when and to whom he disclosed the assaults.

[12] In our view, the trial judge was alive to both of these issues. She specifically noted that the complainant’s evidence regarding the frequency of the assaults was “variable”. Even so, she found that, despite that variability, the complainant remained steadfast that the sexual assaults occurred with “frequency”.

[13] The appellant says that the trial judge erred by approaching the complainant’s evidence on this point as if he was a child, or at least testifying about matters when he was child. This was wrong, says the appellant, because while the complainant was under 18 years of age for purposes of the timeframe of the charges, on his version of the events, the offending conduct continued for a few years into adulthood, maybe as late as 24 years of age. As well, the appellant emphasizes that these were dated allegations, and the complainant was almost 60 years of age when he testified at trial.

[14] We see no error in the trial judge’s approach to this issue and owe deference to her conclusions.

[15] In the end, the trial judge accurately recounted the complainant’s evidence on this point. It was open to her to conclude that, while the evidence was indeed variable, it was clear on one point: that the sexual assaults occurred frequently. We see no error in her approach.

[16] Coming to the disclosure point, the appellant maintains that the trial judge erred in not giving sufficient attention to the complainant’s inconsistent accounts of when, and to whom, the allegations were disclosed. It is correct to say that there was some inconsistency on these points. What is critical, though, is that the trial judge acknowledged those inconsistencies. She devoted several paragraphs to addressing them and, in the end, accepted the complainant’s suggestion that he had been mistaken when he originally testified that he had told no one about the sexual assaults until he spoke to the police in 2019. We see no error in the trial judge’s approach.

Uneven Scrutiny of the Evidence

[17] Concerning the third ground of appeal, the appellant argues that the trial judge gave uneven scrutiny to the evidence.

[18] Under this ground of appeal, the appellant claims that the trial judge was too forgiving of inconsistencies in the complainant’s evidence on the basis of demeanour evidence. We do not read the reasons in this way. While the trial judge ultimately accepted the complainant’s evidence as both credible and reliable, she gave numerous reasons for arriving at that conclusion. As for his demeanour, the trial judge was careful to say that she was “mindful of the limited use” of that evidence and was only making a “passing observation” about the fact that the complainant’s demeanour seemed consistent with the trauma that he testified he endured as a result of the offences.

[19] The appellant also claims that the trial judge erred when rejecting the defence theory that the complainant was motivated to fabricate the allegations due to an estate dispute. Like the other grounds of appeal, this was an issue that fell squarely with the domain of the trial judge to resolve. Her careful reasons demonstrate the considered manner she took when approaching the issues of credibility and reliability in this case. She came to the conclusion that the alleged motive to fabricate held no sway. This was a conclusion available on the evidence. Again, deference is owed to that conclusion.

Disposition

[20] The conviction appeal is dismissed.

“Fairburn A.C.J.O.”
“Grant Huscroft J.A.”
“P.J. Monahan J.A.”

[1] The sentence appeal was abandoned at the outset of the appeal.