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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2025-03-20
COURT FILE No.: 23-48100001
Toronto Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
Dylan LARIOS-BONILLA
Before Justice C. Faria
Submissions heard on January 21, 2025
Reasons for Sentence released on March 20, 2025
James Frost — counsel for the Crown
Alexandra Mamo — counsel for the defendant Dylan LARIOS-BONILLA
Faria J.:
[1] Introduction
On August 27, 2024, after a trial, I found Dylan Larios-Bonilla guilty of sexual assault.[^1] The matter was adjourned to prepare a Pre-Sentence Report (PSR). Unfortunately, though the Report was received on November 7, 2024, there were two adjournments required because of illness. Sentencing submissions were heard on January 21, 2025. These are my reasons for sentence.
Facts
[2] On February 3, 2024, EA, a nursing home care giver, was experiencing lower back pain. She went to Mr. Larios-Bonilla, a registered massage therapist, for a massage to manage her pain. During her second massage with Mr. Larios-Bonilla, while she laid face down on the massage table, he removed the white sheet covering her, pulled her underwear between her buttocks and then massaged her buttocks with both hands without her consent.
[3] EA heard what she thought was a belt buckle noise and a zipper unzip. She turned around and saw Mr. Larios-Bonilla’s belt undone, his pant zipper down, and his hand in his boxers covering his penis.
[4] She put on her clothes, confronted Mr. Larios-Bonilla, called the police and went straight to the police station to report the sexual assault.
Positions of the Parties
[5] The Crown recommends a 90-day jail sentence, a 12-month probation order, a DNA Order, and a Sex Offender Information Registration Act (“SOIRA”) Order for 10 years.
[6] The Defence recommends a Conditional Sentence of 12 months, agrees with the Crown’s probation and DNA recommendations, but disputes that a SOIRA Order is warranted.
Mr. Larios-Bonilla
[7] Mr. Larios-Bonilla is a 32-year-old single man with no criminal record. Pursuant to his PSR, his parents divorced when he was 7 years old, and this had a negative impact on his life. However, besides this, he had a good childhood. He lives with his mother, has a girlfriend and maintains positive relationships with those in his life.
[8] He obtained a massage therapy diploma from a local college and worked as a massage therapist from 2021 until this charge. His licence is currently suspended. Prior to that, he did general labour and worked in a bakery. He is presently enrolled in an osteopathy program and hopes to work in that sector after he graduates.
[9] He reports no alcohol or substance issues, and no physical or mental health conditions. This legal process, however, has caused him stress and anxiety, and he now attends counselling weekly.
Victim Impact
[10] The victim did not provide a victim impact statement. However, her shock and surprise at what was done to her was evident in the manner she testified. She testified she did not know why Mr. Larios-Bonilla was massaging her buttocks. She was confused but did not want to question him and make him angry. She put her trust in his professionalism, and her trust was violated. When she realized she was being sexually assaulted, she screamed, jumped up and got dressed as quickly as she could and fled the room.
[11] The video of her exiting the massage therapy room after the offence was particularly probative. Although there was no audio, her agitation was obvious. Her physical movements and gestures, alongside her immediate attempt to alert the office staff in a distraught and upset manner was clear.
[12] By way of both her evidence at trial, and her behaviour on the video, I find that EA was very disturbed by the sexual assault.
Legal Principles
[13] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and to contribute to the respect of the law and the maintenance of a just, peaceful, and safe society. To accomplish this, the sanction I impose should have one or more of the following objectives:
- to denounce unlawful conduct
- to deter the offender and other persons from committing offences
- to separate offenders from society, where necessary
- to assist in rehabilitating offenders
- to provide reparations for harm done to victims or to the community
- to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
[14] Every sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender pursuant to s. 718.1.
[15] It is well recognized that for sexual violence offences, denunciation and deterrence are guiding principles.
[16] The principle of parity, s. 718.2(b), that sentences for similar offences committed by similar offenders in similar circumstances should be similar is applicable. The principle of restraint, s. 718.2(d) and (e) for first time offenders, is also a consideration as stated in R. v. Priest, [1996] O.J. No. 3369(C.A.) at paras. 543-44.
[17] R. v. Lacasse, 2015 SCC 64 at para. 58 notes that the “determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.”
Analysis
[18] The issue is whether the appropriate sentence is a jail term, or a conditional sentence order, and whether a SOIRA order is warranted in the circumstances.
[19] The Crown submits a conditional sentence is not sufficient to reflect the objectives of denunciation and deterrence as required for a sexual assault sentence. The Defence submits the jurisprudence and circumstances of this offence and this offender merit its consideration and is the appropriate sentence.
Aggravating Factors
[20] Sexual assault is a serious offence. The two principal aggravating features in this case are:
(i) Mr. Larios-Bonilla was acting in the capacity of a health care provider when he touched EA sexually without her consent.
(ii) The nature of massage placed EA in a vulnerable position. She was almost nude, lying on a bed faced down and alone in a room with Mr. Larios-Bonilla. The context and location – that of medical assistance in a clinic was intended to make her feel safe, but was the location of her violation instead.
[21] An offence committed by a health care professional in this environment attracts the applicability of s. 718.2(a)(iii), that is a breach of trust and constitutes a statutorily aggravating factor.
Mitigating Factors
[22] In mitigation:
(i) Mr. Larios-Bonilla is a first offender, with no criminal record.
(ii) He is also otherwise pro-social, pursuing further education and maintaining consistent employment.
(iii) He has significant family, community, and professional support. I received 12 letters of support from people who know Mr. Larios-Bonilla. His close family characterize him as considerate, giving, and kind. His friends describe him as loyal, helpful, and hardworking. His professional colleagues describe him as talented, committed, and generous with his knowledge.
(iv) He is taking counselling and is amenable to counselling.
[23] These antecedents reflect good rehabilitative prospects, and warrant the application of restraint.
[24] In addition, Mr. Larios-Bonilla has experienced the collateral consequence of having his massage therapy licence suspended because of these charges, and has lost his job, R. v. Suter, 2018 SCC 34 at para. 48.
[25] Mr. Larios-Bonilla had a trial and elected not to speak to the PSR author about the offence, as he is entitled to do. I thus have no information about Mr. Larios-Bonilla’s insight into the offence. The absence of this information is neutral.
Caselaw
[26] The Crown referred me to 5 cases in support of a custodial disposition: R. v. Al-Handani, 2024 ONCJ 314, R. v. Khan, 2016 ONCJ 282, R. v. M.L., 2018 ONSC 7355 (S.C.A.), R. v. Vignon-Campuzano, 2020 ONSC 5702, and R. v. Zolman, [2020] O.J. No. 16.
[27] All 5 offenders were in similar health care provider roles. All 5 were sentenced to custodial dispositions ranging from 90 days intermittent jail to 13 months in jail.
[28] One case, Zolman was appealed, and a new trial ordered, and Vigon-Campuzano and M.L. involved digital penetration. The more similar cases are those of Al-Handani and Khan.
[29] Mr. Al-Handani was training to be an RMT (Registered Massage Therapist) who removed his patient’s underwear, placed his hands on her breasts, including her nipples, and touched her vagina. He was also a first-time offender, who had family support, but was no longer able to work in the field and was sentenced after trial. He received a 90-day intermittent sentence.
[30] Mr. Khan was an unlicensed RMT who held himself to be one. He touched the patient’s breasts and vaginal area repeatedly after being told “no”. He was a first time offender who was sentenced after trial to 6 months custody.
[31] Although the level of physical intrusion is not necessarily indicative, nor determinative of the gravity of the offence, nonetheless, the facts in each of these cases are more serious than the facts before me.
[32] Counsel for Mr. Larios-Bonilla provided 8 cases supporting her recommendation for a conditional sentence: R. v. Browne, 2021 ONSC 6097, R. v. G.T., 2022 ONSC 2619, R. v. Holland, 2022 ONSC 1540, R. v. Morgan, 2021 ONCJ 100, R. v. R.S., 2021 ONCJ 2263, R. v. Francis, ONCJ 2023 unreported, R. v. Buna, 2010 BCCA 53, R. v. Dickson, 2023 ONSC 2776.
[33] In each of these cases, the sexual violation was also more invasive than the case at bar, and in some cases, the offender had a more troubled history than that of Mr. Larios-Bonilla, but nonetheless the offenders were sentenced to conditional sentences.
[34] The most similar case is that of R. v. Buna. Mr. Buna, a chiropractor was found guilty of 5 counts of sexual assault on his patients. Three of the counts were upheld on appeal. The violations pertained to touching his patients’ breasts and buttocks during treatment. The BC Court of Appeal noted at para. 11 that though the conditional sentence of 9 months was on the low end of the range when compared to similar cases, it was a fit sentence.
Conditional Sentence Determination
[35] The first question is to determine whether a Conditional Sentence is available pursuant to s. 742.1 of the Criminal Code. The test as articulated by the Supreme Court in R. v. Proulx, 2000 SCC 5 at paragraph 77 states:
Once a sentencing judge has found the offender guilty of an offence for which there is no minimum term of imprisonment, has rejected both a probationary sentence and a penitentiary term as inappropriate, and is satisfied that the offender would not endanger the community, the judge must then consider whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.
[36] The Crown elected to proceed summarily and there is no minimum term of custody required for this offence. The gravity of the offence renders time served, or a suspended sentence inappropriate. The circumstances, however, also do not warrant a penitentiary sentence and the Crown does not recommend one. Mr. Larios-Bonilla has no criminal record and has abided by the terms of his release with no difficulty. I find that he would not put the community in danger.
[37] The issue is whether a conditional sentence is consistent with the fundamental principles of sentencing in this case, specifically, denunciation and deterrence.
[38] A conditional sentence can have a denunciatory and deterrent effect as the Supreme Court of Canada stated in R. v. Proulx, 2000 SCC 5 at para. 22:
The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. (underlined in the original)
[39] Lamer C.J. underscored the serving of a sentence in one’s community and added at para. 102:
Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances. (emphasis mine)
[40] In addition, the appropriate duration of a conditional sentence will often differ from the appropriate duration of a sentence served in a custodial facility, Proulx at para. 52.
[41] In particular, the Supreme Court of Canada in Proulx states at para 114:
…a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served.
[42] Mr. Larios-Bonilla is a young man with no criminal record, strong family, and community support, who has demonstrated efforts to improve himself academically, professionally, and personally by going to counselling. He committed a serious offence that warrants a substantial sanction. Given his circumstances, a lengthy and strict conditional sentence is a substantial sanction.
[43] Moreover, a conditional sentence comes with the “real threat of incarceration to increase compliance with the conditions of the sentence”, Proulx, para. 21, should Mr. Larios-Bonilla be found to breach one of the conditions.
[44] The Supreme Court stated in R. v. Lacasse, 2015 SCC 64 at para. 11:
This Court has on many occasions noted the importance of giving wide latitude to sentencing judges. Since they have, inter alia, the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard.
[45] A sentencing judge must balance and weigh all relevant factors. A fit sentence is a reflection of the facts, the role of the offence in the community, the jurisprudence, and the uniqueness of the individual before the court.
[46] In this case, and with this offender, I find that a lengthy and strict conditional sentence will reflect denunciation and deterrence as required for a sanction for a sexual assault of this nature and is consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.
SOIRA determination
[47] Sexual assault is a primary designated offence for a SOIRA order. Pursuant to s. 490.012(3) I am to make a SOIRA order “unless the court is satisfied the person has established that:
(a) There would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act; or
(b) The impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act.
[48] The factors I am to consider per s. 490.012(4) are:
(a) The nature and seriousness of the designated offence;
(b) The victim’s age and other personal characteristics;
(c) The nature and circumstances of the relationship between the person and the victim;
(d) The personal characteristics and circumstances of the person;
(e) The person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;
(f) The opinions of experts who have examined the person; and
(g) Any other factors that the court considers relevant.
[49] The Crown submits that a SOIRA order is necessary to protect the public.
[50] The Defence submits a SOIRA order is grossly disproportionate due to the invasive and exhaustive nature of the process, and notes that the invasive nature of the process outweighs the public interest. She further submits that the order would be substantial on Mr. Larios-Bonilla. She points to his rehabilitative prospects as making it unlikely Mr. Larios-Bonilla will re-offend.
[51] I have no evidence of Mr. Larios-Bonilla’s risk to re-offend. Although he is a first-time offender, this is insufficient to infer his risk level, and I thus do not accept Counsel’s submission on this point.
[52] Although I agree he has positive rehabilitative prospects, but again I have no evidence of his understanding or insight into his offending, and therefore, again, do not accept Counsel’s submission that Mr. Larios-Bonilla’s rehabilitative potential mitigates his risk to re-offend.
[53] Finally, given that Mr. Larios-Bonilla is pursuing a career that is in the broad health care field, and intends on dealing with the public in that capacity, the public interest in monitoring Mr. Larios-Bonilla is high.
[54] Considering the factors per s. 490.012(4), in that this is a serious sexual assault, the victim was in a vulnerable relationship with Mr. Larios-Bonilla as his patient, and he breached that trust as a health care provider, I find that the Defence has not satisfied me that Mr. Larios-Bonilla should be exempt from complying with a SOIRA order.
Sentence
[55] Mr. Larios-Bonilla, I sentence you to a 15-month conditional sentence and a 2-year probation. The conditional sentence will be a strict one, the terms for which will be appended to this decision, as will the terms for probation.
[56] I will make a DNA order that a sample be provided today in this Courthouse.
[57] I will also make a SOIRA order for 10 years.
Released: March 20, 2025
Signed: Justice Cidalia C.G. Faria
Appendix A: 15-month Conditional Sentence
- Report in person within 24 hours to a supervisor and thereafter, at all times and places as directed by the supervisor or any person authorized by a supervisor.
- Do not change your place of residence without first obtaining the written permission of your supervisor.
- You will be confined to the property of your residence for the first 12 months of conditional sentence order. You will remain on that property at all times except:
(a) between 12:00 noon and 5:00 p.m. on Saturdays in order to acquire the necessities of life, or another 5 hour period on another day of the week, as pre-approved by the supervisor.
(b) for any medical emergencies involving any member of your immediate family (spouse, child, parent, sibling).
(c) for going directly to and from or being at school, employment, court attendances, religious services and legal or medical or dental appointments.
(d) for going directly to or from and being at assessment, treatment or counselling session.
(e) you will confirm your schedule in advance with the supervisor setting out the times for these activities.
(f) with the prior written approval of the supervisor. The written approval is to be carried with you during these times.
(g) for carrying out any legal obligations regarding compliance with this Conditional Sentence Order.
(h) you must present yourself at your doorway upon the request of your supervisor or a peace officer for the purpose of verifying your compliance with your home confinement condition. - Following your home confinement, the balance of your order you will remain in your residence from 11:30 p.m. to 6:00 a.m. except:
(a) for any medical emergency involving you or any member of your immediate family (spouse, child, parent, sibling).
(b) you must provide written justification to the supervisor within 72 hours of any such absence during your curfew hours.
(c) for any hospital visit or funeral attendance. You must provide written justification to the supervisor prior to any such absence during your curfew hours.
(d) unless you are in the direct company of mother, your girlfriend, or family member (including uncle, aunt, cousin).
(e) travelling directly to, from and while at work or school.
(f) with the prior written permission of your supervisor. - Have no contact directly or indirectly with EA.
- Attend and actively participate in all assessment, counselling and rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor, including, but not limited to:
a) Sexual boundaries
b) Sexual behaviours
c) Sexual psychiatric or psychological issues
d) Stress management. - You shall sign any release of information forms as will enable your supervisor to monitor your attendance and completion of any assessments, counselling and rehabilitative programs as directed.
- You shall provide proof of your attendance and completion of any assessments, counselling and rehabilitative programs as directed.
- Not obtain any firearms licence, registration or certificate.
- Do not possess any weapons as defined by the Criminal Code.
Appendix B: 2 year Probation Terms
The terms of probation are:
- Report within 24 hours after the completion of your CSO and thereafter as required.
- Have no contact with EA.
- Attend and participate in assessment, counselling and rehabilitative programs as directed by the probation officer, in particular attend assessment for sexual behaviours, and take counselling for sexual boundaries.
- Sign releases to ensure the probation officer can monitor attendance and completion of programs.
- Possess no weapons as defined by the Criminal Code.
- Not obtain any firearms licence, registration, or certificate.