COURT OF APPEAL FOR ONTARIO
Miller, Paciocco and George JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Steven Wolfer
Appellant
Samantha Bondoux and Mark C. Halfyard, for the appellant
Stephanie Pak, for the respondent
Heard: June 19, 2026
On appeal from the conviction entered by Justice Jennifer L. Myers of the Ontario Court of Justice on April 17, 2024.
REASONS FOR DECISION
OVERVIEW
1Steven Wolfer was convicted of a single count of sexual assault, based on the trial judge’s findings that he committed two historical sexual assaults against the complainant between March 1, 1984, and March 1, 1990. At the end of oral argument, we denied Mr. Wolfer’s conviction appeal for reasons to follow. These are our reasons.
MATERIAL FACTS
2At the time of the alleged offences, Mr. Wolfer was a young adult. The complainant, who was under 14 years of age during the charge period, was a childhood friend and slightly younger than Mr. Wolfer’s young cousin (the “cousin”). The Crown alleged that Mr. Wolfer committed three sexual assaults against the complainant during the charge period: the living room incident (involving the masturbation of Mr. Wolfer by the complainant and the cousin), the basement incident, and the ski trip incident. The details of the latter two incidents do not require particularization.
3The Crown case was based solely on the testimony of the complainant and the cousin, who has been estranged from the complainant for decades. The complainant was unable to describe many of the circumstances surrounding the alleged offences but described the sexual acts in some detail. The cousin gave evidence relating to the living room incident and the ski trip incident. The complainant was the sole Crown witness testifying about the basement incident. Mr. Wolfer testified in his defence, denying all three incidents.
4The trial judge found that the living room incident and basement incident had been proved beyond reasonable doubt, despite Mr. Wolfer’s evidence, which she found not to be credible. She concluded that while the ski trip incident probably happened, she was left with a reasonable doubt by Mr. Wolfer’s evidence in the context of inconsistencies in the Crown case.
THE ISSUES
5Much of Mr. Wolfer’s appeal centers on the trial judge’s treatment of the cousin’s evidence relating to the living room incident, which she concluded materially confirmed the testimony of the complainant. Mr. Wolfer interprets the cousin as casting doubt on whether the complainant was present during the charged event, and as having testified that he alone masturbated Mr. Wolfer and that he was the one who masturbated Mr. Wolfer to climax, something that the complainant claimed to have done. He argues that the trial judge erred by failing to resolve these inconsistencies and by treating the cousin’s inconsistent testimony as corroborating the living room incident.
6He also argues that the trial judge erred by failing to apply the rule in W.(D.)2 to exculpatory Crown evidence, and by failing to explain how the frailties in the complainant’s evidence about the ski trip incident impacted on her general assessment of his reliability as a witness on the remaining incidents.
7It is Mr. Wolfer’s position that each of these alleged errors taints all factual findings, which depend on the complainant’s testimony, thus requiring a new trial.
ANALYSIS
I. The trial judge did not fail to resolve inconsistencies
8Mr. Wolfer argues that the trial judge failed to reconcile three central inconsistencies between the cousin’s testimony and that of the complainant relating to the living room incident that she was obliged to reconcile because of their importance. Specifically, he alleges that, contrary to the complainant’s evidence, the cousin testified that: (1) he did not believe the complainant was present; (2) he alone masturbated Mr. Wolfer; and (3) he masturbated Mr. Wolfer to climax.
9On alleged inconsistency (1), the cousin testified that he had a friend present during the living room incident but did not believe it to be the complainant. But the clear tenor of the entirety of his evidence is that although he believed his friend to be someone other than the complainant, he could not see his friend’s face in his memory and was unsure. The trial judge was entitled to find that the cousin had a gap in his memory on this issue. It follows there was no inconsistency to reconcile.
10The evidence does not support alleged inconsistency (2) either. When he was asked the compound question, “[W]ho’s performing the masturbation? What do you remember?”, the cousin replied, “I was.” Given the compound questions, this answer is not a clear claim to having acted alone. This is particularly true since his lack of memory as to who was with him would prevent the cousin from claiming to “remember” who else was performing the masturbation. In our view, there is no clear evidence from the cousin that he alone performed masturbation. Indeed, when the cousin’s evidence is read in its entirety, he accepts that his unknown friend may have participated. Most significantly, he was asked, “Was, was it Mr. Wolfer masturbating himself?” He replied, “No. I took part” (emphasis added). When asked directly if anyone assisted him, the cousin testified, “I want to say yes.” The cousin’s testimony therefore goes no higher than that he did not recall whether he was assisted. This evidence does not contradict the complainant’s account that he participated. The trial judge was not obliged to address an inconsistency that did not arise.
11With respect to alleged inconsistency (3), we agree that the cousin’s testimony that he is the one who masturbated Mr. Wolfer to climax is inconsistent with the complainant’s version. However, the Reasons for Judgment provide a clear explanation for why the trial judge did not find this discrepancy to undermine the complainant’s testimony. She described this as a “detail”. This is a fair characterization. The fact in dispute between the two men – who was masturbating Mr. Wolfer at the time he climaxed – had no impact on the charge, did not go to the heart of the narrative, and provided no basis for concluding that one of the men must be lying. They may have been remembering this detail of the event differently. The trial judge was therefore entitled to discount this discrepancy as a detail: see 2024 ONCA 905, 174 O.R. (3d) 359, at para. 37. She was not required to say more than she did.
II. The trial judge did not err by treating the cousin’s inconsistent testimony as “corroborating” the living room incident
12The trial judge found that the cousin’s testimony about the living room incident “corroborated” the complainant’s account. Mr. Wolfer accepts that the trial judge did not use the word “corroborated” in its technical sense, but to describe confirmation. Therefore, he is not attempting to craft an error out of this loose use of terminology. Mr. Wolfer argues instead that the cousin’s testimony was not confirmatory but contradictory, hence the error. He relied heavily in support of this submission on the alleged contradictions we have already rejected as non-existent or unimportant.
13More importantly, what impressed the trial judge were details shared between independent witnesses, including the room in which the incident occurred, Mr. Wolfer being “covered by a blanket”, and Mr. Wolfer “being naked from the waist down, erect and masturbated to ejaculation”, things which were not contradicted. The trial judge did not err in taking comfort in the accuracy of the complainant’s testimony from these shared details. It is unlikely that, by coincidence, the complainant would inaccurately describe a sexual interaction with Mr. Wolfer involving himself and the cousin as participants, and for the cousin to independently describe the same kind of sexual act with Mr. Wolfer in the presence of a young unknown friend that included the same specific details the complainant had included. The trial judge did not err in finding confirmation for the complainant’s testimony in the cousin’s evidence.
III. The trial judge did not err by failing to apply the rule in W.(D.) to exculpatory Crown evidence
14The rule in W.(D.) applies not only to exculpatory defence evidence but also to exculpatory evidence presented during the Crown case: 2011 ONCA 51, 273 O.A.C. 241, at para. 106; 2021 ONCA 781, 408 C.C.C. (3d) 4, at para. 40. Mr. Wolfer argues that the trial judge erred by applying the rule in W.(D.) only to exculpatory defence evidence.
15The Crown concedes that the trial judge stated the rule too narrowly when describing it as applying to Mr. Wolfer’s testimony, given that evidence emerged in the Crown case that contradicted the Crown’s allegations. However, the Crown argues that this misstatement of the rule is immaterial because the trial judge applied the rule correctly. We agree.
16This correct application of the rule can be seen in the trial judge’s explanation as to why she was left in doubt about the ski trip incident. That doubt arose in material part because the Crown evidence disclosing the cousin’s lack of any memory of a sexual struggle occurring in the room where he and the complainant were allegedly sleeping was inconsistent with the complainant’s account. This exculpatory evidence from the Crown case opened the door for the trial judge to be left in doubt by Mr. Wolfer’s denial. The trial judge clearly understood that reasonable doubt can come from exculpatory prosecutorial evidence and respected this principle in her reasoning.
IV. The Trial judge did not err in Explaining Her reliablity assessment of the complainant’s evidence
17Mr. Wolfer argues that the doubt that the trial judge had about the ski trip incident should have shaken her confidence in the complainant’s reliability relating to the other testimony he gave. Mr. Wolfer argues that the trial judge erred by not explaining how this affected her assessment of the complainant’s reliability generally. We are not persuaded by this submission.
18Some reliability concerns are event specific, such as the speed and distance of events. Others reflect on the general reliability of the witness and can impact on any testimony they give. These are things such as eyesight, immaturity, mental acuity or the passage of time. Mr. Wolfer has not identified any general reliability concerns arising from the ski trip incident that the trial judge should have addressed but did not. An examination of the reasons reveals that there were two such concerns, the passage of time and the complainant’s immaturity at the time, and that they were both considered generally relating to all the allegations.
19Speaking specifically of the ski trip incident, the trial judge said the inconsistencies that gave rise to doubt “were largely … because of the childhood memory challenge addressed earlier”. The reference to the “challenge addressed earlier” is to reliability concerns raised by defence counsel or otherwise recognized by the trial judge that she identified earlier in her reasons. She described defence counsel as arguing that she should have doubt because of the passage of time, and she noted that the fact that the Crown witnesses were children at the time presented unique reliability concerns. There is no basis for finding that the trial judge “siloed” these general reliability concerns, considering them only relating to the ski trip incident. She addressed them generally at the outset of her decision along with the law relating to the assessment of children’s evidence. We can find no reliability concerns linked to her rejection of the ski trip incident allegation that she failed to consider elsewhere in her reasons.
20In addition, the reasons do not leave any doubt about the basis for the trial judge’s credibility and reliability decisions. She explained them in detail. In simple terms, there was material support for the living room incident in the cousin’s testimony that helped to overcome these reliability concerns. In contrast, there were inconsistencies arising from the cousin’s evidence relating to the ski trip incident that prevented these concerns from being overcome. Despite her awareness of the reliability impact that the passage of time and immaturity can have, the trial judge accepted the complainant’s testimony relating to the basement incident after finding it to be consistent, unshaken, untainted, presented with honest acknowledgement of gaps in his memory, and persuasive. She was entitled to do so.
21We therefore denied this ground of appeal.
CONCLUSION
22For these reasons, the appeal was dismissed at the end of oral argument.
“B.W. Miller J.A.”
“David M. Paciocco J.A.”
“J. George J.A.”
Footnotes
- Pursuant to R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.