WARNING The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2024 08 27 COURT FILE No.: 23-99848100001 Toronto Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
Dylan LARIOS-BONILLA
Before: Justice C. Faria
Heard: August 7 and 8, 2024 Reasons for Judgment released: August 27, 2024
Counsel: James Frost......................................................................................... counsel for the Crown Alexandra Mamo......................... counsel for the defendant Dylan LARIOS-BONILLA
Faria J.:
I. Introduction
[1] EA, a nursing home worker, went to a clinic to get physiotherapy for her injured shoulder. She complained of lower back pain and was referred to Dylan Larios-Bonilla, a registered massage therapist. On February 3rd, 2023, during her second massage appointment with Mr. Larios-Bonilla, EA alleges he sexually assaulted her contrary to s. 271 of the Criminal Code.
[2] Both EA and Mr. Larios-Bonilla testified at trial.
[3] The issue is the credibility and reliability of the witnesses, and whether the Crown proved the touching was for a sexual purpose, beyond a reasonable doubt.
[4] The Crown submits the court should accept EA’s evidence, and that the circumstances she described clearly demonstrate a sexual purpose for Mr. Larios-Bonilla’s touching outside of a massage.
[5] The Defence submits that though testifying in a sincere manner, EA misunderstood the situation, and is unreliable. Counsel submits Mr. Larios-Bonilla’s evidence should be accepted, and if not, at least it raises a reasonable doubt. In addition, she also submits the touching has not been proven to be for a sexual purpose.
II. Legal Principles
[6] As in every criminal case, the onus rests upon the Crown to prove guilt beyond a reasonable doubt which is inextricably linked to the presumption of innocence. The onus rests with the prosecution throughout the trial and never shifts. Reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence. [1]
[7] Four of the five elements of the charge of sexual assault are conceded, namely, that Mr. Larios-Bonilla touched EA directly; his touching was intentional; EA did not consent to sexual activity; and Mr. Larios-Bonilla knew that EA did not consent to sexual activity. The only element at issue is whether the circumstances of the touching are of a sexual nature.
[8] Credibility relates to whether a witness is speaking the truth as she/he/they believes it to be. Reliability relates to the actual accuracy of the testimony. There is a distinction between a finding of credibility and proof beyond a reasonable doubt. [2]
[9] The leading applicable case on credibility, and guiding my analysis, provides the following test: [3]
i. If I accept Mr. Larios-Bonilla’s evidence, I must acquit him.
ii. Even if I do not accept Mr. Larios-Bonilla’s testimony, if it leaves me with a reasonable doubt, I must acquit him.
iii. Even if Mr. Larios-Bonilla‘s evidence does not raise a reasonable doubt, I have to consider all of the evidence to satisfy myself that the Crown has met its high burden and proven beyond a reasonable doubt all of the essential elements of the offence.
[10] In assessing competing evidence, I cannot compare each account and decide which account I believe. [4] I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Moreover, I can accept some, all, or none of a witness’ evidence. Frailties and/or inconsistencies in a witness’ evidence do not necessarily mean their evidence should be rejected. [5]
III. Evidence
[11] EA testified the first time she saw Mr. Larios-Bonilla for a massage for her lower back pain, he asked her to remove her pants, top and bra, keep her underwear on, and lie face down on a table. She did so. He massaged her lower back with gel for about 15 minutes. When he was finished, she dressed and left.
[12] For her second appointment Mr. Larios-Bonilla gave her the same instructions, and she did the same thing. When he returned to the massage room, she was face down covered in a white sheet. This time though, he touched her shoulders and asked if she had pain, she said no. He did the same with her buttocks, her thighs, and her calves. She said no each time. All the while Mr. Larios-Bonilla chatted with EA asking her personal questions about her work and children.
[13] EA testified Mr. Larios-Bonilla used a gel from a bottle he kept on a table about 2- 3 feet away. He would squeeze it on her body and massaged till it went dry and then he would get more from the bottle on the table. As she lay face down, she could, through the hole on the bed for her face, see his feet moving around her as he did so. When she lifted her head to the side to look at what he was doing more directly, or to answer his questions, he told her to lie flat.
[14] EA testified she noticed several unusual things:
i. Mr. Larios-Bonilla would lean over her body to massage the opposite side of her body from where he was standing, rather than walk around to it.
ii. He told her that her thighs were stiff and asked if they hurt. She said “I don’t have any problem in my thighs, just my back”. He proceeded to massage her thighs anyway.
iii. He pulled both sides of her underwear up and into the middle of her “butt” and proceeded to massage her buttocks.
iv. He pulled the sheet completely off her body exposing her entirely.
v. He had a cell phone on the table, she saw him touch it, she did not know what he was doing, but the phone was pointing her way, and she saw a red lit circle on it.
[15] Though she felt uncomfortable, EA testified she let Mr. Larios-Bonilla proceed because she thought perhaps things were done differently at this clinic. She did not want to challenge a professional performing his job as she did not want to make him angry.
[16] EA felt both Mr. Larios-Bonilla’s hands massaging her buttocks. She described it as “playing with my butt” and with two hands he was “like, shaking it, like how someone who is playing like a ball”.
[17] While she was facing down, EA testified she heard a zipper unzip, a belt buckle noise, and as he was massaging her buttocks, she saw Mr. Larios-Bonilla’s legs shake. She felt a wet “pump” of something on her leg. She testified it was ejaculate.
[18] EA testified she jumped up and saw Mr. Larios-Bonilla with his pants zipper down, his dark boxer shorts, and his hand inside his underwear covering his penis. She began to scream. He told her to “shush” and said, “what what”. EA put on her leggings and her top, put her bra in her bag and confronted him. She was “mad” and asked him whether what he was doing “was part of the job” and if he was recording her.
[19] She left the room and stood in the corridor calling police on her cell phone. She yelled at clinic staff telling them what had happened, and that Mr. Larios-Bonilla’s zipper was still down.
[20] The video surveillance of the corridor outside the massage room, with no audio, was filed as evidence. EA is seen agitated, apparently shouting at two clinic staff, using her phone, pointing into the massage room, gesturing to her genital area, pushing, and then pulling Mr. Larios-Bonilla out of the room. He stood by the massage room door, apparently observing her.
[21] EA put on her outerwear, left the clinic and went to the police station to report the sexual assault.
[22] In cross-examination, EA circled her buttocks and low back on a photo of musculature of the male human body indicating where Mr. Larios-Bonillo massaged her.
[23] In cross-examination she testified:
i. The room was well lit and there was no music.
ii. She does not know the meaning of the word “glute” and Mr. Larios-Bonilla did not use the word. He just touched different body parts, asked if she felt pain and she said no.
iii. He did not tuck a sheet into her underwear. He just pulled both sides of her underwear into the middle of her buttocks.
iv. Mr. Larios-Bonilla’s penis was exposed inside his dark boxers while he covered it with his hand.
Mr. Larios-Bonilla
[24] Mr. Larios-Bonilla, 32, obtained his massage therapy diploma in 2021. He was working at 4 locations in February 2023, including the one EA attended. He testified to a different version of events.
[25] Regarding the first appointment, Mr. Larios-Bonilla testified:
i. Before he saw EA, he reviewed her clinic file and consulted with her physiotherapist. He knew she had shoulder and lower back pain.
ii. This first appointment was 45 minutes long.
iii. He did a shoulder range of motion exam.
iv. He told her to “undress to her comfort level” and made no mention of a bra.
v. She was draped with a sheet, and he would ask her if he could undrape her before he did so.
vi. He worked on her “low back, shoulder blades, neck area, on both sides…and her hamstrings.”
vii. He then told her to return, and she did so on February 3rd, 2023.
[26] During the second appointment, Mr. Larios-Bonilla testified he consulted with EA and they agreed he would “do the same thing.”
[27] Mr. Larios-Bonilla testified he then did a low back assessment of EA while she was on the massage table. He found her low back tension to be coming from her hip area. He asked if it was ok to work on her “hip and glute”. She said “yeah”.
[28] He testified he massaged her “shoulder blades, both sides, the upper neck, the low back, as well, and left hip, hamstrings, calves on the left side then right side, I worked on glutes, hamstrings.” When asked to identify where he massaged EA, he circled the entire rear musculature of the human body on a photo which became an exhibit.
[29] He testified he would undrape the sheet from EA’s body and tuck it into her underwear, when he massaged her glute, and then re-drape her when he went on to another body part. The lights were dim, and there was low beats music on.
[30] Throughout the massage he used a gel, pouring it on his hand and keeping the bottle on the table. The lotion became cool when he transited to EA’s right side, so he used oil and kept the bottle in his pocket.
[31] Mr. Larios-Bonilla demonstrated to the court all the techniques he used.
[32] Mr. Larios-Bonilla was unable to finish massaging EA’s right side however, because of his pants.
[33] Mr. Larios-Bonilla testified he lost a lot of weight that year, and his pants were too big and “kept falling down” so he had to “keep pulling them up”. The pants were size 36, and he was a 32. He was uncomfortable.
[34] While on EA’s right side, he undid his belt to make the belt tighter. As he did so, EA “turned around and just started yelling and screaming”, she “was losing her mind.” She told him she saw what he was doing. He told her it was a “big misunderstanding.” He was “not doing anything”. She was loud and he told her to be quiet. While EA screamed at him, he testified he was in shock and tried to explain to the physiotherapist, one of the people in the hallway, what was happening.
[35] He testified his zipper was down because the zipper on those pants was “not stable”.
[36] During cross examination, Mr. Larios-Bonilla testified:
i. He did not tell EA he had looked at her file or consulted with her physiotherapist.
ii. He took “yeah, that’s fine” to be verbal consent to massage the sensitive glute area that requires specific prior written consent from a patient.
iii. Though EA never mentioned her legs, or calves, or thighs, he massaged them anyway.
iv. Though he knew EA was doing physiotherapy on her shoulder, and he is not a physiotherapist, he massaged her shoulder blades, nonetheless.
v. Though his company required him to “dress” and be “presentable”, he selected pants 2 sizes too big with a broken zipper to wear to work. Though his pants were too big, they made him feel confident.
vi. He put both the lotion and the oil bottles in his pants pockets, which weighted down his pants when they were already too big.
IV. Analysis
[37] EA testified in a straightforward, clear, and detailed manner about the substance of the sexual assault. She was unshaken. Her credibility was not seriously disputed only her reliability was. However, I find her to be both credible and reliable.
[38] There were details she did not remember, all of them peripheral, and given the context, understandable she did not know or remember. She did not know how long the massage was to be, because her previous massages had always been short, she always planned her treatments on days off, so their length did not matter. She did not discuss the cost of the massage because her insurance covered it. She easily admitted why she did, or did not, say something to the police, and that she had forgotten details. She was honest about how angry she was.
[39] EA deferred to Mr. Larios-Bonilla as the professional healthcare provider he is, to treat her ailment, which she repeatedly told him to be, lower back pain. She had had massages before and gave him latitude to do his job, not wanting to anger him. Though she did not usually disrobe to her underwear, she did as she was told. Though she did not receive a gown as she expected, she used the sheet as she was told. When Mr. Larios-Bonilla asked her questions about other subjects, she turned her head to answer him, but turned it back down and flat as she was told.
[40] EA went to Mr. Larios-Bonilla for a lower back massage to ease her pain, and instead, he touched her shoulders, back, thighs and buttocks, where she did not feel pain. He undraped the sheet from her body, pulled up her underwear into the middle of her buttocks, and massaged it. She felt both his hands “playing” with her buttocks. She did not consent to this touching, was not told it had any therapeutic value – in fact – she did not know what he was doing and why. After she heard a zipper unzip, the noise of a belt buckle, saw his legs shake and felt a warm wet liquid squirt on her leg, she looked at Mr. Larios-Bonilla. He had his zipper down, his belt undone, and his hands in his pants covering his penis.
[41] I accept her evidence.
[42] There were only two areas of EA’s testimony that were unclear.
[43] The first one was that when she made a statement to police just after the incident. The officer asked her if Mr. Larios-Bonilla had ejaculated. She said she did not know. In- chief she said she knew it was “sperm” because Mr. Larios-Bonilla had no bottle in his hand, he was grabbing her legs and his legs had been shaking. In cross-examination, she said that after her statement to the police, she showered and saw the dried slimy substance on her leg, and she knew it to be ejaculate.
[44] EA’s conclusion that the residue of a substance on her leg was Mr. Larios-Bonilla’s ejaculate, given the circumstances she had experienced, is a reasonable one. However, it could have been oil, which Mr. Larios-Bonilla admits to using without her consent. Though she is likely correct, I am not persuaded beyond a reasonable doubt that Mr. Larios-Bonilla ejaculated on EA.
[45] The second area of uncertainty was regarding Mr. Larios-Bonilla’s cell phone. EA testified about the positioning of it facing her with a red circle button on, and he went to the phone several times. This ultimately made her feel she was being recorded. However, this evidence was unclear and unreliable. Mr. Larios-Bonilla did not testify about it at all. I will disregard EA’s evidence regarding Mr. Larios-Bonilla’s cell phone.
[46] Mr. Larios-Bonilla also testified in a straightforward and detailed manner. However, his evidence had numerous relevant inconsistencies. He admitted he did not obtain proper written consent to massage EA’s buttocks, and his explanation for having his zipper down and his belt undone during the massage was not credible.
[47] For instance, Mr. Larios-Bonilla testified:
i. He told EA he would “do the same thing as last time”, however, even on his own evidence he had not massaged EA’s buttocks on the first occasion.
ii. First he testified he massaged EA’s hamstrings/thighs through the sheet, then he testified that he did it directly.
iii. Though EA came to him complaining of lower back pain and was receiving physiotherapy for her shoulder at their first appointment, he testified he did a shoulder mobility test and massaged her shoulder but did not do a low back assessment, what she came to him for even that first time.
iv. He told EA to undress “to her comfort level” before their first appointment, but specifically told her to remove her top and pants. He testified he did not tell her to take off her bra, then admitted he did. On both occasions he did not adhere to his own instruction that she could undress to her “comfort level” but rather told her to undress to her underwear.
v. He reviews whether a patient wants lotion, or oil used, as each person has very specific preferences. However, he switched from lotion to oil of his own accord in the middle of the massage without telling EA.
[48] On the issue of consent, Mr. Larios-Bonilla testified:
i. Though he was aware he needed specific written consent to massage a patient’s sensitive area, which includes the glutes, and he knew she had not signed such a consent, he proceeded to massage her glutes, nonetheless.
ii. He knew he was going to work on her “hips and glutes” before he did so, but still did not get written consent.
iii. He thought he would get written consent “later”.
iv. When he asked EA to massage her “hips and glutes”, he took her “yeah”, to be sufficient verbal consent. However, it was abundantly clear from EA’s evidence she is completely unfamiliar with this word and its meaning, and Mr. Larios-Bonilla did not use it with her.
v. Though EA only sought a massage for her lower back, and maybe, on his understanding, her shoulder, he decided to massage her entire body from her neck down to her feet.
vi. When asked “You weren’t listening to what she wanted”. He responded “No”.
vii. When asked if he “figured it was ok because she didn’t say anything”. He responded “yeah”.
[49] Mr. Larios-Bonilla’s explanation as to why his belt was undone and his zipper was down, was not credible.
i. He testified he had to dress in a “presentable manner” but selected khakis he knew to be 2 sizes too large with an “unstable zipper” that was always down at least “an inch”.
ii. Though he felt uncomfortable because his pants were “falling down”, he also chose to put both the lotion bottle and the oil bottle in his pockets which weighted him down further.
iii. The video of Mr. Larios-Bonilla standing by the massage room door shows his pants not to be bunched or cinched tight by his belt for being too large on him. They are appropriately fitted around his waist and not 2 sizes too large.
V. Conclusion
[50] Although the determination of consent and the purpose of touching in the context of a massage for low back pain, may be a complicated one in other circumstances, it is not in this case.
[51] I find Mr. Larios-Bonilla did unzip his zipper, he did undo his belt, and he did put his hand on his penis during or after he massaged EA’s buttocks to constitute circumstances that demonstrate his massaging her buttocks to be for a sexual purpose.
[52] I accept EA’s evidence. I reject Mr. Larios-Bonilla’s evidence. It does not raise a reasonable doubt. On the totality of the evidence I do accept, I find the Crown has proven its case beyond a reasonable doubt.
[53] Mr. Larios-Bonilla, I find you guilty of sexual assault.
Released: August 27, 2024 Signed: Justice Cidalia C.G. Faria
[1] R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 39. [2] R v. J.J.R.D., [2006] O.J. No. 4749 (C.A.) at para. 47; R v. J.W., [2014] O.J. No. 1979 (C.A.) at para. 26. [3] R. v. W.D., [1991] 1 S.C.R. 742 [4] R. v. Esquivel-Benitez, 2020 ONCA 160 [5] R. v. J.J.R.D., [2006] O.J. No. 4749 (C.A.) at paras. 46-48, leave to appeal to SCC refused, [2007] S.C.C.A. no. 69.