R v AB, 2021 SKCA 119

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3441 Citation: R v AB , 2021 SKCA 119 Date: 2021-09-07 Between: AB Appellant And Her Majesty the Queen Respondent Before: Caldwell, Barrington-Foote and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Kalmakoff On appeal from: Provincial Court, Saskatoon Appeal heard: August 12, 2021 Counsel: Luke Coupal for the Appellant Pouria Tabrizi-Reardigan for the Respondent Barrington-Foote J.A. I. INTRODUCTION [ 1 ] On March 19, 2021, AB was found guilty of sexually assaulting his estranged spouse and of breaches of an undertaking to have no contact with her. On March 25, 2021, he was sentenced to 24 months incarceration for the sexual assault, less credit for time spent in remand, and 30 days for the breaches of undertaking, to be served concurrently. [ 2 ] AB has appealed his sentence for sexual assault.

He alleges that the sentencing judge committed errors in principle that impacted his sentence and that his sentence is demonstrably unfit. He has also applied to adduce fresh evidence that he asserts would have been admitted at trial but for his counsel’s error and, if admitted, would have impacted his sentence. [ 3 ] For the reasons that follow, I have concluded that the application to adduce fresh evidence should be denied and that AB’s sentence appeal should be dismissed. II.

BACKGROUND [ 4 ] At the time he committed the sexual assault, AB and his spouse, YZ, had been married for 17 years and had four children. They had separated but were attempting to reconcile and continued to have contact in pursuit of that goal despite the no contact order. The events that resulted in his conviction occurred at approximately 7:00 AM on September 9, 2020, when AB went to the home occupied by YZ and their children and entered her bedroom. [ 5 ] AB and YZ gave very different testimony as to how he came to be there and what occurred in the bedroom.

AB testified that he and YZ had spoken at 4:30 AM that morning and that she had invited him to come over and enter through an unlocked door to the garage. It was his evidence that, after he entered, he put on the coffee before going to her bedroom. He claimed that he kissed YZ on the cheek to wake her up and that he kissed, caressed and spoke with her before he touched her vagina. He said that she became angry during the conversation, that she initiated what became a verbal altercation and that she told him to get out. [ 6 ] YZ denies that she issued an invitation to AB.

She testified that she was asleep when he entered the bedroom and that she awoke to find his fingers in her vagina. She claimed that she promptly began yelling at him and told him to get out. Both agree that, after a brief yelling match, he left the house. [ 7 ] The trial judge believed aspects of each of their versions of events. In doing so, he relied on testimony from YZ’s 18-year-old daughter. It was the daughter’s evidence that she was awakened by the garage door opening, heard footsteps going to her mother’s room and, soon after, her mother and AB yelling at each other, and then someone departing.

The trial judge summarized his conclusions as follows: …[A]ssuming that he was invited, and that’s what I believe happened and how he got in the house knowing that the side door to the garage would be open and that he could get in, this is where it gets a little difficult, and this is where [YZ’s daughter’s] description of what happened and what she heard is relevant to my decision. …

Now, [YZ’s daughter] didn’t remember much about what was the yelling, exactly what was in it, but a couple of things she did remember,or the essence of it, was that her mother, yelling at whoever it was saying, “What are you doing here” and, “Get out”, that fits, certainly,with [YZ’s] description that she -- I mean -- yeah, [YZ’s] description -- that she was asleep … I do believe her when she says she wasasleep when he was sexually touching her or touching her in a sexual manner.

I also think it makes sense that even if she had invited him,or talked to him, or whatever it was at 4:30 in the morning, at 7:00 or whenever this happened, she may not have been expecting to have --find someone’s fingers in her vagina.

And I believe she was asleep, and I believe that aspect of her version of events, and that means nomatter how you look at it, that [AB’s] sexual touching of [YZ] was without her consent, and for that reason, I -- I find him guilty of countnumber 1 on Information 461, the sexual assault. [8] The fresh evidence application relates to evidence that AB’s counsel unsuccessfully sought to adduce at trial. AB testified inchief that he had also gone to YZ’s home at her invitation the day before the sexual assault, and that they had consensual intercourse onthat occasion.

The Crown objected that this evidence related to sexual activity that had occurred on another occasion, was tendered toprove YZ was more likely to have consented, and that there had been no application pursuant to s. 276 of the Criminal Code. AB’s counselstated that he sought to lead the evidence solely to prove what YZ meant when she said to AB, “I would like to wake up like that everymorning”.

The trial judge agreed with the Crown, ruling that AB could not give this evidence of prior sexual conduct. [9] In the sentencing decision, the trial judge found that the offence was at the lower end of the range of what would qualify as amajor sexual assault but was nonetheless in that category. As to other factors he found to be aggravating, he noted that YZ was asleepwhen the assault took place and that AB was subject to no contact conditions. However, he found the breach of the no contact order was“mitigated considerably” by his finding that she had invited him over.

He referred to AB’s prior criminal record, commenting that it was“not long and very dated”, but included a 1997 conviction for sexual assault. [10] The trial judge found that denunciation and deterrence were the major sentencing considerations, and that specific deterrencehad some relevance because of the “very, very dated” prior sexual assault. In his view, the appropriate range for sentencing was between18 and 36 months and that there should be a penitentiary sentence. In the result, he imposed a notional sentence of 24 months. III. ANALYSIS [11] AB identified the following grounds of appeal: (

a) the fresh evidence that might have been admitted but for his counsel’s error would have had a significant impact on sentence; (

b) the trial judge erred in principle by overemphasizing specific deterrence and by failing to consider the impact of COVID-19on the conditions of incarceration, and those errors impacted the sentence; and (

c) the sentence is demonstrably unfit. A. The fresh evidence [12] I will deal first with the fresh evidence application. If the fresh evidence is admitted, it would properly be taken into account indetermining whether the sentence is demonstrably unfit. I will deal next with the submission that the trial judge erred in principle in themanner suggested by AB. I will finally address the argument that the sentence is demonstrably unfit. [13] Applications to adduce fresh evidence are assessed under the test set out in R v Palmer, (SCC), [1980] 1 SCR759 at 775 [Palmer]:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases…

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [14] The test is the same for sentence appeals as for appeals from conviction: R v Lévesque, 2000 SCC 47 at para 16, [2000] 2 SCR487 [Lévesque]. [15] As to the first criterion, AB took the position that the fresh evidence would have been admitted but for the incompetence of histrial counsel in failing to make the s. 276 application.

It is possible to meet the Palmer due diligence requirement where available evidencewas not adduced as a result of the incompetence of counsel, if it is also established that the failure gave rise to a miscarriage of justice,such as trial unfairness or an unreliable result: R v G.D.B., 2000 SCC 22 at paras 18–22, [2000] 1 SCR 520 [G.D.B.]; R v Belcourt, 2020SKCA 73, 389 CCC (3d) 303; R v Wang (2001), (ON CA), 153 CCC (3d) 321 (Ont CA) at paras 58–59; R vWeagle, 2008 NSCA 122 at paras 14–18, 240 CCC (3d) 311.

In G.D.B., Major J. described the meaning of incompetence in this context: [27] Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’sconduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions ofcounsel that are alleged not to have been the result of reasonable professional judgment.

The wisdom of hindsight has no place in thisassessment. [16] I am not satisfied that AB has demonstrated that his counsel – who was also his counsel on this appeal – was guilty ofincompetence that met this definition. Indeed, although AB asserted in his factum that a reasonable legal professional would have made an

application in advance of trial pursuant to s. 276, he did not take that position at the hearing of the appeal. He instead submitted that it wasnot clear whether there was an error by counsel in failing to make such an application or an error by the judge in refusing to allow theevidence to be led.

That allegation falls well short of what is necessary to overcome the strong presumption that counsel’s conduct fellwithin the range of reasonable professional assistance. [17] I would also note that AB asserted, but did not demonstrate, that the evidence would have been admitted if he had made a s. 276application at trial or at the sentencing hearing. The Crown takes the position that it was inadmissible, as it served no legitimate purposeunder the law.

In these circumstances, I am also unable to conclude that the failure to make that application resulted in a miscarriage ofjustice. [18] For these reasons, AB did not meet the first Palmer criterion. However, that is not necessarily fatal to his application, as duediligence is not a prerequisite to the admission of fresh evidence.

That principle was confirmed in Lévesque at paragraph 14, where theCourt adopted Doherty J.A.’s description in R v M. (P.S.) (1992), (ON CA), 77 CCC (3d) 402 (Ont CA) at 410, of theinteraction between the Palmer principles, which was as follows: The last three criteria are conditions precedent to the admission of evidence on appeal. Indeed, the second and third form part of thebroader qualitative analysis required by the fourth consideration.

The first criterion, due diligence, is not a condition precedent to theadmissibility of “fresh” evidence in criminal appeals, but is a factor to be considered in deciding whether the interests of justice warrantthe admission of the evidence: McMartin v. The Queen, supra, at pp. 148-50; R. v. Palmer, supra, at p. 205. [19] Turning to the second Palmer criterion, AB argued that the fresh evidence was relevant because there was some uncertainty inthe law or room for debate as to whether advance consent can be given to sexual activity which will take place when the person whoconsented is sleeping or unconscious.

I disagree. The Supreme Court of Canada’s decision in R v J.A., 2011 SCC 28, [2011] 2 SCR 440, isentirely clear on this point. Chief Justice McLachlin summarized the law as follows in the majority reasons: [66] The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase ofthe sexual activity.

It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance.Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensualwithin the meaning of the Criminal Code. [20] AB also submitted that the fresh evidence was relevant to the proportionality analysis mandated by s. 718.1 of the CriminalCode, which requires that a sentencing judge fully consider the gravity of the offence and the offender’s degree of responsibility.

In myview, evidence that a victim had given permission to an offender to engage in specific sexual activity which they knew would occur whenthe victim would be sleeping could be relevant in this sense. To be clear, that is not to suggest that permission of that kind could constituteconsent, as anything less than active, actual consent through every phase of the sexual activity is not consent at all. [21] However, the fresh evidence is not relevant evidence in this sense. Here, AB’s counsel sought to adduce evidence that AB andYZ had intercourse the morning before.

He testified that she then said to him, “I would like to wake up like that every morning”. Even ifthis evidence were to be taken at face value, it would not constitute evidence that YZ had consented in advance to engaging in sexualactivity while she was asleep, or, for that matter, to the particular sexual act inflicted on her by AB. [22] For these reasons, the fresh evidence also fails to meet the second Palmer criterion.

And, given that it would not be relevantevidence, it would not constitute evidence that, together with the other evidence before the trial judge for purposes of sentencing, couldreasonably be expected to affect AB’s sentence. That being so, it does not meet the fourth Palmer criterion. [23] I am also not persuaded that fresh evidence meets the third Palmer criterion. The evidence on the record is thin, as the trialjudge did not permit AB’s counsel to ask questions that referred to the prior sexual activity at the heart of the fresh evidence.

His evidencewas neither complete nor tested, and there was no affidavit evidence filed in support of the fresh evidence application. It is clear the trialjudge did not find AB to be entirely credible, as he rejected key aspects of his version of events. All of that being so, I am not satisfied thatthe fresh evidence is reasonably capable of belief. My conclusion on this front is buttressed by the fact that AB applies for the admissionof evidence that YZ consented in advance to sexual activity that he claims did not occur.

Put differently, he asks this Court to admit freshevidence to explain why he did what he swore he did not do. [24] In the result, the application to admit fresh evidence fails to meet any of the Palmer criteria and must be denied. B.

Did the trial judge make errors in principle that impacted the sentence? [25] In R v Friesen, 2020 SCC 9, 391 CCC (3d) 309, Wagner C.J.C. and Rowe J. confirmed the standard of review on a sentenceappeal specified in R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089 [Lacasse]: [26] As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrablyunfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44).

Errors in principleinclude an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. Theweighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight toanother, the trial judge exercises his or her discretion unreasonably” (R. v. McKnight (1999), (ON CA), 135 C.C.C.(3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49).

Not every error in principle is material: an appellate court can onlyintervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44). If an error inprinciple had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if thesentence is demonstrably unfit. [26] AB alleges that the trial judge erred in principle by overemphasizing specific deterrence as a result of his prior conviction forsexual assault in 1997.

He noted the trial judge’s comment that AB “doesn’t strike me as a person that would just go over there to assaulther” and that he did not refer to anything which would support a concern with recidivism. He also stressed that the trial judge also foundthat the offence, although violent by its nature, “[did] not fall within the category of chronic domestic violence”.

[27] The trial judge held that the major sentencing considerations in this case were denunciation and deterrence, including bothgeneral and specific deterrence. He reasoned that “specific deterrence…has some relevance” because of AB’s prior conviction for sexualassault, but also described that prior conviction as “very, very dated”. This language, considered in the context of the sentencing decisionas a whole, does not demonstrate an overemphasis on specific deterrence. [28] Further, as the Crown correctly noted, there were other facts which supported the consideration of this sentencing factor.

WhenAB was sentenced for the sexual assault, he was also being sentenced for breaching his undertaking not to contact YZ several times withina six-month period and for assaulting her shortly after the sexual assault. [29] For these reasons, the trial judge did not err in principle by overemphasizing specific deterrence. [30] AB also argued that the trial judge erred by failing to consider the impact of COVID-19 restrictions on the conditions ofincarceration.

He submitted that in R v Shingoose, 2020 SKCA 45 [Shingoose], a judge of this Court recognized that offenders sentencedto custody during the COVID-19 pandemic serve those sentences under significantly stricter and lonelier conditions. In his view, that factshould have been considered by the trial judge and should have resulted in a lesser sentence. [31] With respect, Shingoose did not rest on a finding that offenders faced strict or lonely conditions.

It dealt with an application forjudicial interim release which took account of particular health risks that would be faced by the offender in a congregate setting, based onevidence about that offender and the institution where he would have been held on remand.

It accordingly provides limited guidance inthis case, other than to demonstrate the need for evidence, a matter that is addressed further below. [32] Although Shingoose is not such a case, there are many sentencing decisions in which courts have taken account of the impactof COVID-19 measures on inmates in determining a fit sentence: see, for example, R v Gordey, 2020 ABQB 425 [Gordey]; R v Adams,2016 ABQB 648, [2017] 4 WWR 741, affirmed 2019 ABCA 149, [2019] 6 WWR 55; R v Rajmoolie, 2020 ONCA 791, 155 OR (3d) 64[Rajmoolie]; R v Johnston, 2020 ONCJ 272 [Johnston], affirmed 2021 ONCA 331; R v Brown, 2020 ONCA 196 [Brown]; R v Morgan,2020 ONCA 279 [Morgan]; R v Dillon, 2021 SKQB 78; R v Walker, 2021 SKPC 1; R v N.G.H., 2020 SKPC 14.

These decisions arose ina variety of circumstances, including situations where COVID-19 risks tipped the scale in favour of a sentence to be served in thecommunity as a result of the risk of contracting COVID-19 in a correctional institution.

They also reflect differing and sometimesconflicting legal justifications for taking account of COVID-19 risks or COVID-19 protocols implemented to mitigate those risks. [33] In Brown, for example, the trial judge relied on the decision in R v Duncan, 2016 ONCA 754 [Duncan], which had beenrepeatedly applied in Ontario to justify the award of what came to be referred to as “Duncan credits” to compensate an offender for harshconditions in pre-sentence custody and the impact of those conditions on the offender.

In Brown, the Ontario Court of Appeal found thatthe sentencing judge had not erred by granting both 1.5 days of remand credit for each day in pre-sentence custody and an additional fourmonths as a result of the harsh conditions. It reasoned that “the amount of credit to be given engages the discretion of the sentencingjudge” (at para 13). [34] In Rajmoolie, the majority found that Duncan had confirmed that there is no cap of 1.5 days on the credit that can be given forpre-sentence custody, and that a sentencing judge had the discretion to award a higher credit for particularly harsh conditions.

In hisdissent, Lauwers J.A. disagreed, finding that the general jurisdiction of a sentencing judge could not ground the award of remand credit inexcess of the cap imposed by s. 719(3.1) of the Criminal Code.

He explained that conclusion as follows, citing the decision in R vSummers, 2014 SCC 26, [2014] 1 SCR 575: [70] The unavoidable implication of the Truth in Sentencing Act in amending s. 719(3) and adding s. 719(3.1), and the decisionin Summers, is that Parliament intended the legislation to remove from sentencing judges the discretionary jurisdiction to provideenhanced credit for pre-sentence incarceration conditions.

This is the basis of the Supreme Court’s decision in Summers. [35] Nonetheless, Lauwers J.A. concluded that “where harsh and dehumanizing conditions warrant, a court could give additionalcredit for pre-sentence custody beyond the legislated cap of one and one-half days for each day spent in custody in the exercise of itsauthority under s. 24(1) of the Charter” (at para 73).

He reasoned that this Charter justification – which he found to be applicable whenconditions were so harsh as to limit the prisoner’s s. 7 or s. 12 Charter rights – was implicit in Duncan. [36] Similarly, in Gordey, Gates J. concluded that in the absence of a proven Charter breach, he could not grant enhanced remandcredit. However, he nonetheless reduced the sentence by granting further credit of 112 days, finding that the severe restrictions placed onthe accused during his pre-trial detention rose to the level of a mitigating circumstance which justified that reduction.

The reasoning inGordey was adopted in R v Leblanc, 2021 ABQB 230, 25 Alta LR (7th) 310, and in R v Shivak, 2021 ABQB 72. [37] In Morgan, the Ontario Court of Appeal took yet another approach, finding that the more difficult conditions of incarcerationresulting from the COVID-19 pandemic could be taken into account as a collateral consequence, to the extent consistent with thefundamental principle of proportionality: [9] In our view, the appellant’s submissions fall into the category of collateral consequences for sentencing purposes. As Moldaver J.noted in R. v.

Suter, 2018 SCC 34 , [2018] 2 S.C.R. 496, at para. 48: The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself lessserious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on theoffender because of his or her circumstances. [10] However, Moldaver J. went on to make a further observation in Suter that has direct application to the case here.

He said, at para.56: I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case - collateral consequencescannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moralblameworthiness of the offender.

[38] In the result, the Court declined to reduce the sentence, finding that it was already at the very low end of the acceptable rangeand that a further reduction would result in an unfit sentence. [39] In Johnston, Moore J. adopted the “collateral consequence” approach. She found that it was appropriate to consider the impactof COVID-19 protocols on that basis not only for the time served in remand, but in considering “the risks to mental and physical health inthe remaining sentence to be served” (at para 99). In the result, she reduced the sentence below the low end of the range.

The OntarioCourt of Appeal commented as follows in relation to her approach: [20] A sentencing judge’s exercise of discretion in weighing relevant factors attracts deference on appeal: R. v. Lacasse, 2015 SCC 64,[2015] 3 S.C.R. 1089, at paras. 48-49. The weighing or balancing of factors only amounts to an error in principle if the sentencing judgeexercises his or her discretion unreasonably: R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 26.

The trial judge did not exerciseher discretion unreasonably. [40] I would finally note R v McDonald, 2021 ABCA 262 [McDonald], where the Alberta Court of Appeal rejected an argument thatthe sentencing judge had erred by failing to give proper consideration to the harsh conditions in remand.

The Court found that Gordey waseasily distinguishable based on the lack of a robust evidentiary record, including evidence of specific hardship suffered by the appellant.For that reason, it deferred the decision as to whether a sentencing judge has the discretion – absent a proven Charter breach – to reduce asentence as a result of harsh remand conditions: [33] A further comment must be made. Typically, the decision to award enhanced remand credit beyond the statutorily prescribed 1.5to 1 is grounded in a proven Charter breach.

In Gordey, the sentencing judge dismissed the Charter breach and determined he wastherefore precluded from granting further enhanced credit. The judge proceeded, however, to address the matter indirectly, by reducing thetotal sentence, in light of the “mitigating circumstances” surrounding the COVID-19 protocols. The question of whether a sentencingjudge retains residual discretion to provide enhanced credit, directly or indirectly, for harsh remand conditions absent aproven Charter breach is best left for another day.

The fact remains that the evidentiary record in Gordey and the present case are vastlydifferent. Here, little more was said than a passing reference to COVID-19 and resulting periods of quarantine.

The most generousinterpretation of Gordey does not stand for the proposition that a blanket reference to COVID-19 protocols will affect sentencing. [41] These decisions demonstrate that it remains a matter of debate whether, absent proof of a Charter breach, a sentencing judgehas the discretion to directly or indirectly reduce a sentence as a result of COVID-19 protocols that have negatively impacted conditions inremand, or that will impact the conditions under which the sentence will be served. In this case, as in McDonald, it is not necessary todecide that question.

Even if the impact of COVID-19 protocols can properly be considered in determining a fit sentence, the question ofwhether it should result in a reduction of the term of incarceration must turn on the evidence relating to the nature of those protocols andthe extent to which they impacted the offender. Sentencing is an inherently individualized process: R v M. (C.A.), (SCC),[1996] 1 SCR 500 at para 92.

The case law relating to the impact of COVID-19 consistently and correctly reflects that principle in thiscontext. [42] There is no such evidence relating to the protocols adopted in the correctional institutions where AB spent time on remand orwill serve his sentence, or the extent to which they would impact him. For that reason, I am unable to find that the trial judge erred byfailing to consider the impact of COVID-19 protocols.

The question of whether a sentencing judge has the discretion to provide enhancedcredit or to otherwise reduce the term of a sentence where the record is sufficient is properly left for another day. C. Is the sentence demonstrably unfit? [43] AB’s argument that his sentence is demonstrably unfit is based on several grounds. He submits that it exceeds the sentencesimposed on similar offenders for similar offences committed in similar circumstances.

He relied on the following decisions of the OntarioCourt of Justice in support of that proposition: R v S.C., 2017 ONCA 891; R v Delaney, 2018 ONCJ 984; R v Giovannelli, 2017 ONCJ408; and R v Scinocco, 2017 ONCJ 359. He emphasized the lack of “overt violence”.

He also stressed that he had mistakenly believed thatYZ had asked him to awaken her using sex, a submission that has no foundation given my reasoning and conclusions relating to the freshevidence. [44] In Lacasse, Wagner J. (as he then was) summarized the meaning of demonstrably unfit in the context of a sentence appeal: [52] …As Laskin J.A. mentioned, writing for the Ontario Court of Appeal, the courts have used a variety of expressions to describe asentence that is “demonstrably unfit”: “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, orrepresenting a “substantial and marked departure” (R. v.

Rezaie (1996), (ON CA), 31 O.R. (3d) 713 (C.A.), at p. 720).All these expressions reflect the very high threshold that applies to appellate courts when determining whether they should intervene afterreviewing the fitness of a sentence. [53] This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, whichprovides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentencewill therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle.

Proportionality is determined both onan individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison withsentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciledfor a sentence to be proportionate: s. 718.2(

a) and (

b) of the Criminal Code. [45] Here, the trial judge concluded that AB committed a major sexual assault. That conclusion was justified on the evidence andwas not challenged by AB. YZ was asleep in her own home when the assault occurred, as were her children.

AB was convicted of havingrepeatedly breached his no-contact undertaking and of assaulting YZ, and had a prior, although highly dated, conviction for sexual assault.The fact that YZ was AB’s intimate partner is an aggravating factor pursuant to s. 718.2(a)(ii) and s. 718.201 requires that a sentencingjudge that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increasedvulnerability of female persons who are victims. [46] In these circumstances, and assessed on the standard specified in Lacasse, the sentence imposed by the trial judge clearly

passes muster. It is proportionate to the gravity of the offence and the degree of responsibility of the offender. It does not constitute a substantial and marked departure from the sentences imposed on similar offenders committing similar crimes. [ 47 ] In the result, AB’s sentence was not demonstrably unfit, and on this ground as well, his appeal cannot succeed. IV. Conclusion [ 48 ] For the foregoing reasons, I would dismiss the appeal. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.