ONTARIO COURT OF JUSTICE DATE: 2024·04·17 NEWMARKET

BETWEEN:

HIS MAJESTY THE KING

— AND —

STEVEN WOLFER

JUDGMENT

Evidence Heard: January 25, 26, March 11, 2024. Delivered: 17 April, 2024.

Ms. Aisha Khan........................................................................................ counsel for the Crown Mr. Rocco Loccisano........................................................................ counsel for the defendant

A s 486.4 ORDER APPLIES PROHIBITING PUBLICATION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT

KENKEL J.

Introduction

[1] The complainant’s older brother met Mr. Wolfer on the bus to high school. The brother was in grade 9 and the accused was in grade 13, but despite the difference in age they became friends. Over time Mr. Wolfer also became a trusted family friend. On one occasion while he was babysitting, it’s alleged that he manually fondled the complainant. On another occasion, it’s alleged that there was fondling when the complainant stayed over at Mr. Wolfer’s house.

[2] Mr. Wolfer is charged with two counts of Sexual Assault s 246.1 and two counts of Gross Indecency s 157 c.c. Mr. Wolfer testified and he denied committing either offence.

[3] This case requires an assessment of the credibility and reliability of the evidence of the two witnesses in the context of the Crown’s burden to prove the allegations beyond a reasonable doubt.

The Charges

[4] Sexual offences against children were gender and act specific prior to 1983. In that year, Bill C-127 created the new offence of Sexual Assault s 246.1 c.c. The offence of Gross Indecency s 157 was repealed in 1987 – An Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 3. Historical offences such as the s 157 offence remain available to prosecute sexual offences that occurred before January 4, 1983, that otherwise would be sexual offences under the current Criminal Code – s 156.

[5] The s 157 offences before the court likely were laid in case the evidence at trial revealed an earlier timeline. The gross indecency offences otherwise share a factual and legal nexus with the offence of sexual assault in this case such that the rule against multiple convictions for the same delict would apply. As the historic offences would offend the Charter without the important s 156 limitation, they would be stayed in this case pursuant to the rule in Kienapple in the event of multiple convictions.

The Witnesses

[6] The complainant testified in a frank and candid manner despite the difficult nature of the allegations. He set out the details he now recalls, and he identified areas where his memory is now uncertain. He readily adopted suggestions put in cross-examination where those questions triggered a memory, such as stores and other houses that were in the neighbourhood at the time. He also agreed with other suggested conduct that he didn’t specifically remember but that was reasonably possible and consistent with his general recollection.

[7] The complainant was 10 to 12 years old at the time of the events he described. He was uncertain about many details including the timeline and sequence of events. I’m mindful that observations made during a traumatic event can be difficult to recall and accurately describe at a later date – R v GMC, 2022 ONCA 2 at para 38. A witness is not expected to remember minor details or events that would not have seemed significant at the time. All of this is particularly true of witnesses who are describing events from their childhood.

[8] The complainant’s evidence was certain on the central points of the allegations. His evidence including his responses in cross-examination showed that he “knew what happened to him” even if he was uncertain about the surrounding details. He was a credible witness.

[9] Mr. Wolfer testified in a direct fashion, responsive to questions put by both counsel. His evidence was not shaken in cross-examination. He was more than 10 years older than the complainant at the time of the events they described. He has the advantage of age in that he remembers those events in greater detail. He’s able to explain the timeline of events and why he says that certain things could not have happened as described by the complainant. I agree with the defence that there was nothing in his demeanor or his responsiveness as a witness that could reasonably detract from his credibility.

The Babysitting Incident

[10] One evening Mr. Wolfer was the babysitter for the complainant and his little brother. The complainant thinks this was in 1985 when he was in grade 6 (11 or 12 years of age).

[11] When the boys were ready for bed, the complainant said Mr. Wolfer offered to massage or tickle his back. Mr. Wolfer put his lips on the complainant’s shoulder and forehead. When the incident started the complainant was lying on his belly. He doesn’t now recall how or why he rolled over onto his back. Later Mr. Wolfer pulled the complainant’s underwear down and played with the complainant’s penis to the point where the complainant became aroused. The complainant didn’t know how to react.

[12] The complainant testified that the babysitting incident ended when his mother walked into the room. The accused pulled the boy’s underwear up, pulled the blanket up and then turned to greet the mother. The complainant doesn’t know if his younger brother was awake during this time, but he was in the lower bunk so would not have seen what was going on.

[13] The complainant testified that the next morning his mother spoke to him and said, “Did I see what I thought I saw? Did Steve touch you?”. He didn’t want to get the accused in trouble, so he told her nothing happened.

[14] Mr. Wolfer thinks the babysitting happened in 1983 and he provided a credible reason why he remembers it being that year. He testified that he went to the boys’ room because the complainant said he had a stomach ache. He touched the complainant’s stomach and asked how long it had been bothering him. He checked the complainant’s temperature with his lips as had been done in his family. The complainant had pulled down his underwear as he said the waistband was bothering him. Mr. Wolfer noticed at one point the complainant became erect, but he kept his hands away from the boy’s genital area.

[15] He heard the mother come home. He was facing the bed when she walked in the room. He covered the complainant with a blanket and told the mother that her son had a stomach ache.

The Sleepover Incident

[16] The complainant described a second incident in the winter, perhaps after the first incident. He said that he had a sleepover at Mr. Wolfer’s house so that he could go on a school bus ride the next morning. By that time Mr. Wolfer was the school bus driver and the complainant had never been on a school bus.

[17] Mr. Wolfer lived with his parents, but the complainant didn’t recall if they were home that night. He went for a swim in the external covered pool and said he showered together with Mr. Wolfer afterwards. He got into bed with Mr. Wolfer and was persuaded to sleep naked. He doesn’t recall the conversation, but he remembers that again Mr. Wolfer said he would check the complainant’s temperature with his lips.

[18] The complainant doesn’t know how he ended up on his back, but he said once again Mr. Wolfer touched his penis and got him aroused. The fondling of his penis lasted 10 to 15 minutes. The complainant didn’t recall how the incident ended, but he thinks he fell asleep, perhaps while the accused was still holding his penis. He remembered the accused’s bed was unusual – it was round. The next morning they went on the bus ride. The complainant didn’t remember where they went, but he thinks he was dropped off at home instead of school and thinks it might have been a PA (Professional Activity) day.

[19] In cross-examination, the complainant did not recall whether the pool building was winterized. He agreed it was possible that he only used it in the summer. He agreed any sleepover as he described would have to have been approved first by his parents. He didn’t recall how he got to Mr. Wolfer’s home. He didn’t recall any details about the room (other than the bed) or the shower. When they went for a bus ride the next morning he specifically recalled the bus being warmed up first, so it had to be in the colder months.

[20] Mr. Wolfer testified that his family had an in-ground pool in a building that was not winterized. It was used from May until October then shut down for the winter. The pool was open to members of their church and family friends as long as someone was home. The complainant did swim there, but the only time the accused swam in the pool at the same time was when the complainant’s father was there.

[21] In the late spring of 1984, when he was 21, Mr. Wolfer saw an advertisement looking for school bus drivers. He obtained his license and was employed for Simcoe Coach. One time when the complainant and his brother went swimming with their father, they saw Mr. Wolfer’s bus. He gave them a ride around the block after they were done. That was the only time the complainant was on his bus.

[22] Mr. Wolfer agreed that he at one time had a round bed as described by the complainant. But he testified that he only had that bed until he was 18 or 19 (later said 20). After that he gave it to a friend in the neighbourhood and purchased a waterbed with money that he earned working at Sears. He worked as a school bus driver only after leaving his job at Sears.

[23] There was never a time when the complainant slept over at his house. The complainant never went to his bedroom.

Analysis

[24] In the babysitting incident, it’s odd that Mr. Wolfer did not call the complainant’s mother who is a nurse if it was true that he suspected the complainant may have had appendicitis. He is not a “medical person” as he conceded, but he decided to investigate himself including a brief physical exam. It also seems unlikely that whatever the practice in his own family, he would choose to check an unrelated child for fever using his lips.

[25] Mr. Wolfer’s explanation for why the complainant had his underwear down was unconvincing. His evidence gave no reason for the complainant becoming aroused on his own, and that fact appears inconsistent with Mr. Wolfer’s description of the complainant as having stomach pain.

[26] On the other hand, the complainant fairly conceded that he may have complained of a stomach ache that evening. That’s an important point as it’s the basis of Mr. Wolfer’s explanation for why he was touching the complainant. They agreed the incident ended when the mother returned home to work.

[27] The moment the mother comes home is an important moment in the narrative of both witnesses. Both parties submit that the evidence of her actions that night is consistent with their testimony.

[28] According to the complainant, Mr. Wolfer continued massaging him until the mother entered the room, then he reached down and pulled up the complainant’s underwear and bed covers. The next day his mother asked him directly, “Did I see what I thought I saw? Did Steve touch you …?” His evidence suggests that his mother had seen the improper touching.

[29] The complainant said they heard the mother arrive home before she came up and entered the bedroom. Neither witness said they were taken by surprise. It seems unlikely in that context that Mr. Wolfer would continue improper contact with the complainant, underwear down, until after the mother entered the room.

[30] Mr. Wolfer submits that the lack of any apparent reaction from the mother in the bedroom and the simple exchange of pleasantries is consistent with his evidence that nothing improper happened. They heard the mother arrive home as the complainant described, yet Mr. Wolfer did not attempt to leave the boys’ room because he wasn’t doing anything wrong.

[31] The complainant’s testimony about his mother’s question to him the next day is not evidence, but it does identify an adult witness who would be expected to still have a good memory of such an incident. The mother was not called by either party. It may be that she is not available, but no explanation was provided for her absence.

[32] Leaving aside the complainant’s evidence about his mother’s statements, his testimony does put her in position to see Mr. Wolfer pulling up underwear, covers and perhaps more. Yet after the incident both witnesses agreed that Mr. Wolfer’s contact with the family continued. The complainant’s evidence as to the later sleepover incident is based on his parents giving him permission to sleep over at Mr. Wolfer’s house. Leaving aside any improper stereotypical notion about how a young boy is supposed to react to fondling by an adult, the lack of any reaction or concern by the parents afterwards is a circumstance that is consistent with Mr. Wolfer’s testimony but appears inconsistent with the complainant’s evidence. It is not reasonably explained by the brief denial to his mother.

[33] I’m mindful that a court may convict on the evidence of a single witness. There is no common law rule requiring corroboration – R v AG, 2000 SCC 17 at para 30. The statutory rule which required corroboration for both offences before the court was repealed just prior to the events in this case by the enactment of s 246.4 – SC 1980-81-82-83 c 125 (In force January 4, 1983).

[34] I find that the complainant’s testimony in relation to this charge described events in a logical fashion and was consistent with many of the aspects admitted by Mr. Wolfer. The complainant’s account was more persuasive than Mr. Wolfer’s but having reviewed all of the evidence, I must acknowledge that some circumstances still reasonably leave a doubt. A conclusion that the accused is probably guilty is not sufficient to convict – R v Starr, 2000 SCC 40 at para 321.

[35] With respect to the sleepover incident, Mr. Wolfer denied that the complainant ever slept over at his home. Mr. Wolfer’s testimony makes very specific assertions that are inconsistent with the complainant’s account but could have been contradicted by the complainant’s parents, potentially his younger brother and by Mr. Wolfer’s parents. None of those persons were called as witnesses.

[36] It’s not plain why the complainant’s parents would approve a sleep over involving a boy approximately 11 years old and a young man in his 20’s. There’s no direct evidence they did. The complainant did not describe any such discussion. If the parents had given such permission, it would have been after the complainant said his mother asked him about possible sexual touching by Mr. Wolfer. That circumstance makes permission even less likely.

[37] The complainant didn’t remember how he got to Mr. Wolfer’s house. He didn’t remember where he had dinner. The complainant’s evidence as to whether Mr. Wolfer’s parents were home was inconsistent, but there was no reason suggested by either witness why the parents would not have been in their home. That’s a second set of parents who would have been aware that Mr. Wolfer was going to sleep with a young boy in his bed. It’s not plain why Mr. Wolfer’s parents would give such permission and there’s no direct evidence they did.

[38] The presence of the parents also creates a high risk of discovery for Mr. Wolfer showering with the complainant inside the home on the second floor. There’s further risk in engaging in the activity the complainant described with the parents home. That risk was not present in the first incident where Mr. Wolfer was alone with the two boys for most of the evening. It’s not impossible that a person would take such risks, but the presence of other adults in the home makes a joint shower and bed sharing much less likely.

[39] The round bed remains a singular fact that is not consistent with Mr. Wolfers’ evidence and is not reasonably explained by reference to the other person who later owned the bed as an alternate suspect. The other person was the same age as Mr. Wolfer, but there’s no evidence he had any contact with the complainant beyond acquaintance in the neighbourhood. The complainant’s knowledge of that unusual bed provides external support for his evidence on this count.

[40] While a young child cannot reasonably be expected to remember many details of events decades ago, the complainant’s complete absence of memory regarding important other aspects of the incident including how and why he was at the accused house leaves many important questions unanswered. The sexual acts complained of are very similar to the other allegations which may be true, but that may also give rise to a question of whether they are truly independent events. While the complainant was a credible witness, I find the frailties with his evidence on this count including several circumstances that seem very unlikely are such that a reasonable doubt must remain.

Conclusion

[41] I believe the complainant. Even though it has been four decades since the incidents, I find his evidence was logical and generally consistent with the external circumstantial evidence on the central points in relation to the first incident. I also agree there may well have been a second incident at some later date in the accused’s bedroom. The criminal standard though is not satisfied by a finding of likely guilt. I’ve carefully considered the evidence as a whole and I’ve concluded that it would be unsafe to convict on either count.

[42] I find the Crown has failed to prove the allegations beyond a reasonable doubt. The charges must be dismissed.

Delivered: 17 April, 2024.

Justice Joseph F. Kenkel