Court File and Parties

Ontario Court of Justice

Date: 2017-07-14

Court File No.: London 16-3664; 16-12679

Between:

Her Majesty the Queen

— and —

Jinghao Zhou

Before: Justice A. Thomas McKay

Heard on: May 12 and June 22, 2017

Reasons for Judgment released on: July 14, 2017

Counsel:

• Mr. Christakos, counsel for the Crown
• Mr. Dean, counsel for the accused Jinghao Zhou

Judgment

MCKAY J.:

Background

[1] Mr. Zhou was charged with a number of offences arising out of the events of the morning of November 24, 2016. Mr. Zhou was intoxicated, operating a vehicle at extremely high speeds in the City of London. He struck a vehicle being operated by Gloria Chivers, causing her death. He was charged with impaired driving causing death, and with operating a motor vehicle with a blood-alcohol concentration exceeding the limit and causing the death of Ms. Chivers. He was also charged with dangerous driving causing death. As part of a plea resolution, Mr. Zhou entered a guilty plea to the single count of impaired driving causing death.

[2] As a result of the investigation into the original charges, Mr. Zhou was also charged with three offences under the Immigration and Refugee Protection Act which occurred between March 26, 2015 and November 29, 2016. As part of the plea resolution, he entered guilty pleas to two of those charges. One count involved using a document for the purpose of remaining in Canada in order to contravene the Act, contrary to section 122.1(b). The second count involved knowingly communicating false or misleading information with intent to induce or deter immigration to Canada contrary to section 127(b) of the Act.

Agreed Statement of Facts

[3] The pleas were based upon an agreed statement of facts filed with the Court.

[4] On November 24, 2016, Mr. Zhou was 23 years old. Gloria Chivers was 60 years old. At approximately 2:45 a.m., Mr. Zhou was driving a rental SUV northbound on Wonderland Road in the City of London. Civilian witnesses observed him driving at an extremely high rate of speed. Mr. Zhou's vehicle almost struck a vehicle containing those witnesses as it passed their vehicle. Mr. Zhou subsequently turned eastbound on Sunningdale Road, and approached the intersection at Richmond Street at a very high rate of speed. Ms. Chivers, who had been driving westbound on Sunningdale Road, had stopped her vehicle at the intersection facing west. Mr. Zhou drove his vehicle at a high rate of speed through the red light controlling the intersection. His vehicle struck Ms. Chivers' vehicle with such extreme force that it forced the steering wheel of Ms. Chivers' vehicle through the driver's seat and into the back seat, pushing the vehicle approximately 50 metres east of the intersection. Mr. Zhou's vehicle drove over top Ms. Chivers' vehicle and rolled several times before coming to a rest. Ms. Chivers was clearly deceased when fire and EMS personnel arrived at the scene.

[5] Emergency personnel extricated Mr. Zhou from his vehicle. Police officers noted classic intoxication signs and arrested Mr. Zhou for the charges before the Court at 3:35 a.m. Mr. Zhou was taken to hospital at 3:44 a.m. At 5:34 a.m., Mr. Zhou supplied a breath sample which yielded a blood-alcohol content of 199 milligrams of alcohol in 100 millilitres of blood. At 5:57 a.m., a second sample provided a blood-alcohol content of 184 milligrams of alcohol in 100 millilitres of blood. A toxicologist with the Centre for Forensic Sciences prepared an extrapolation report in order to determine Mr. Zhou's blood-alcohol concentration at time of driving. That calculation determined a blood-alcohol content between 185 milligrams and 240 milligrams of alcohol in 100 millilitres of blood during the timeframe from 2:45 a.m. to 3:05 a.m.

[6] A subsequent investigation revealed that just prior to impact, Mr. Zhou was travelling at a speed of 188 kilometres per hour, with 100 percent throttle activation for the final five seconds leading up to the point of impact. The brakes were not applied prior to impact. Ms. Chivers had been stopped at the intersection for five seconds prior to impact. The posted speed limit in that area is 60 kilometres per hour.

[7] With respect to the immigration charges, the facts are as follows. Mr. Zhou is a citizen of the People's Republic of China. In August of 2013, he obtained a student visa which authorized him to attend Brock University from the fall of 2013 until September 30, 2014. He was a student at Brock for one month, and then applied for a visa to allow him to enter a four-year program at Western University in London. That acceptance was conditional upon him completing an English as a second language course. He was accepted into such a program at Fanshawe College in London for the period from January 2014 to August 2014. Mr. Zhou did not pass any courses at Fanshawe College. He enrolled in the London Language Institute for a program beginning in September of 2014, and ending in September of 2015. While enrolled there, he never attended a class nor wrote a test.

[8] During this time frame, Mr. Zhou met an individual in an Internet chat room and discussed his status in Canada. He paid that individual $17,500, and provided the individual with copies of his student visa and passport. The individual made an application on behalf of Mr. Zhou for a work permit. The application falsely claimed that Mr. Zhou had obtained a two-year degree from Seneca College in 2014. There were additional documents such as a letter claiming that he was a graduate of that program. Mr. Zhou had never attended any program at Seneca College. On that basis, authorization was issued by the Government of Canada for him to remain in Canada. In addition, although his student visa did not allow him to work, Mr. Zhou paid another individual $45,000 in order to assist him in establishing a bait and tackle business in London. Ultimately, that business was not successful.

Victim Impact Statement

[9] Chris Chivers, Gloria Chivers' husband, filed a victim impact statement. It begins by saying that Mr. Zhou not only killed his wife, but he destroyed Mr. Chivers' life. The statement says "I have no one to love". They did not have children. As the statement points out, they were married before Mr. Zhou was born. Mr. Chivers mentions that he was never allowed to see his wife's remains. The only thing that was returned to him was a cell phone with a shattered screen. The depth of his pain and anger is understandable.

Positions of the Parties

The Provincial Crown

[10] The Provincial Crown takes the position that the appropriate sentence on the Criminal Code offence is a period of six years in custody.

[11] Such a sentence would be proportionate to the seriousness of the crime and its consequences and the moral blameworthiness of Mr. Zhou. It would recognize the upward shift in sentences being imposed for this type of offence. It would also appropriately balance the various sentencing principles and recognize the mitigating factors such as the plea of guilt, and Mr. Zhou's status as a youthful first offender.

The Federal Crown

[12] The federal Crown takes the position that a sentence of two years in custody, consecutive to the criminal code sentence, and a fine in the amount of $10,000 is the appropriate penalty for the immigration offences.

[13] The federal Crown notes that Parliament revised the penalty sections of the legislation in 2001, increasing the maximum penalty from two years in custody to 14 years in custody. The offences belong to a category for which general deterrence is a significant sentencing consideration. The immigration system is, to a large extent, a self-reporting system which requires applicants to honestly disclose their situation. Mr. Zhou paid an individual $17,000 to obtain a fraudulent authorization to be in the country. He then paid another individual $45,000 to assist him in setting up a business, when he was aware that it was illegal for him to do so. Mr. Zhou was given every opportunity and advantage in coming to Canada as a student, and did not even attend classes.

The Defence

[14] The defence acknowledges the tragic consequences of Mr. Zhou's actions which led to the death of Ms. Chivers.

[15] The defence outlined Mr. Zhou's history. He was born in a small farming village in People's Republic of China. Given China's one child policy, he is an only child. In time, his father became a businessman, and his mother became employed at a bank. Both parents were successful. His parents sent him to Canada to study to improve his life. He struggled after arriving in Canada. He had a limited circle of friends and began to consume alcohol. Because of the fear of failing, he did not attend school. An acquaintance offered to assist him in setting up a business, and the chat room contact assisted him in fraudulently obtaining a work permit. Mr. Zhou was attempting to live up to expectations and succeed in Canada.

[16] The defence submits that the appropriate sentencing range for the Criminal Code offence is a period from 4 to 6 years in custody. Given Mr. Zhou's youthful age, his lack of any previous exposure to the justice system, his limitations in communicating with the English language, and the drastic cultural change, any sentence imposed on Mr. Zhou will be more difficult and therefore harsher than it would be for the average individual who has the same sentence imposed. Given the mitigating factors and Mr. Zhou's genuine remorse the global sentence of four years in custody is appropriate. Such a sentence would recognize the restraint principle of sentencing. The defence position is that a concurrent sentence of four months in custody should be imposed on the immigration offences. Mr. Zhou faces deportation when his sentence is served.

The Applicable Legal Principles

[17] The task of a court in arriving at an appropriate sentence is described by Pacciocco, J, as he then was, in R. v. Casselman, at paragraph 3:

"The fundamental principle of sentencing requires that to be fit any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1). This is achieved by examining the aggravating and mitigating circumstances that pertain both to the offence and the offender, bearing in mind established principles of sentencing, including those enumerated in the Criminal Code of Canada (s. 718.2). The sentencing objectives adjusted by this inquiry, selected from the sentencing goals listed in section 718, are then identified. Based on the selected objectives and always mindful of the principles of restraint contained in sections 718.2(c)-(e) of the Criminal Code of Canada the trial judge then selects a fit sentence that will best achieve those objectives and is similar to sentences imposed in similar cases".

[18] Section 718 of the Criminal Code of Canada provides as follows:

"The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by an unlawful conduct:

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community."

[19] The relevant portions of the sentencing provisions of the Immigration and Refugee Protection Act read as follows:

123(1)

Every person who contravenes…

(b) paragraph 122(1)(b) or (c) is guilty of an offence and liable on conviction on indictment to a term of imprisonment of up to 14 years.

128

A person who contravenes a provision of section 126 or 127 is guilty of an offence and liable

(a) on conviction on indictment, to a fine of not more than $100,000 or to imprisonment for a term of not more than five years, or to both;

[20] Section 123 also provides that the commission of the offence for profit, whether any profit was realized or not, is an aggravating factor.

[21] There is very little new to say with respect to the devastation caused by those who choose to engage in the criminal act of impaired driving. The characteristic shared by many of these offenders is the fact that, more often than not, the offenders are individuals who are otherwise law-abiding citizens.

[22] Counsel filed books of authority in order to assist Court in arriving at an appropriate sentence. Many of the principles in those cases are not in dispute. For instance, it is well settled that in these types of offences, denunciation and general deterrence are the paramount sentencing objectives. As stated by Fuerst, J in R. v. Muzzo, 2016 ONSC 2068, at paragraph 58:

"In cases of drinking and driving, particularly where death is involved, denunciation and general deterrence are paramount sentencing objectives. Denunciation refers to the communication of society's condemnation of the conduct. General deterrence refers to the sending of a message to discourage others who might be inclined to engage in similar conduct in the future. General deterrence is particularly important in cases of impaired driving. Drinking and driving offences are often committed by otherwise law-abiding people. Such persons are the ones who are most likely to be deterred by the threat of substantial penalties".

[23] The Ontario Court of Appeal outlined the issue in R. v. Ramage, 2010 ONCA 488, at paragraph 76:

"In imposing sentence, the trial judge identified general deterrence as the predominant concern. In doing so, he correctly applied this court's judgment in R. v. McVeigh, 22 C.C.C. (3d) 145 (Ont. C.A.). In that judgment, now almost 25 years old, this Court made it clear that drinking and driving related offences were serious crimes and must be treated as such by the courts. … The readings leave no doubt that the appellant was significantly impaired. As he drove along the road, he presented an immediate and very real danger to hundreds of people. Given the appellant's very high blood alcohol level and his inevitable degree of impairment, the appellant must have known the risk he posed to all around him when he chose to leave the reception and drive to his destination. The danger created by the appellant's conduct is not unlike that created by a drunken man who walks down a busy street firing a handgun at random. The community, quite properly, demands that the courts denounce and deter such reckless and dangerous conduct. Significant incarceration is the remedy that most emphatically achieves those goals".

[24] In addition, the courts have made it clear that, given the serious criminal conduct involved in drinking and driving, the youth of an offender or lack of criminal record, while still a consideration, may be given less weight as a mitigating factor. As the Supreme Court of Canada recently indicated in R. v. Lacasse, 2015 SCC 64, at paragraph 79:

"This being said, the trial judge was justified in attaching less weight to the mitigating factors in this case. Although an offender's youth is often an important mitigating factor to consider, it should be noted that it is young people who are affected most by motor vehicle accidents that result from impaired driving. In light of the importance that must be attributed to the objectives of deterrence and denunciation in such cases as well as the dire consequences of the accident in the instant case, for which the respondent is entirely responsible, the trial judge was right to reduce the weight attached to his youth as a mitigating factor".

[25] For a number of years, there has been an upward trend in the length of sentences imposed for this type of offence. The Ontario Court of Appeal had the following to say seven years ago in R. v. Junkert, 2010 ONCA 549, at paragraphs 46 and 47:

"In my view, a sentence of five years for this offence cannot be said to be "a substantial and marked departure" from the sentences ordinarily imposed on similar offenders for similar offences. In recent years, there has been an upward trend in the length of sentences imposed for drinking and driving offences. The reasons for this trend can be attributed to society's abhorrence for the often tragic circumstances that result when individuals choose to drink and drive, thereby putting the lives and safety of others at risk.

The imposition of substantial penalties for drinking and driving offences sends an important message to individuals who are considering driving while their ability is impaired."

[26] Courts have made it clear that collateral immigration consequences can be taken into account by a court in imposing sentence, provided that the sentence ultimately imposed remains proportionate to the gravity of the offence and the degree of responsibility of the offender. The significance of collateral immigration consequences will depend upon the facts of case they are simply one of the relevant factors that a sentencing judge may take into account in determining an appropriate sentence. (See R. v. Pham, 2013 SCC 15).

[27] The cases filed by counsel also make it apparent that denunciation and deterrence are primary sentencing considerations with respect to the offences committed by Mr. Zhou under the Immigration and Refugee Protection Act.

Analysis

[28] Mr. Zhou is a 24-year-old first-time offender born in the People's Republic of China, who recently came to Canada on a student visa. He has limited capacity communicating in English language. Any time which he serves in custody will be more difficult for him than the average inmate, given his language limitations and the cultural differences which he will need to adapt to. He is subject to deportation at the completion of his sentence.

[29] I am satisfied that Mr. Zhou is genuinely remorseful. At the sentencing hearing, he addressed both the Court and the Chivers family. He spoke of how, for a period of time, given his role in the death of Ms. Chivers, he questioned whether he was worthy of continuing to live. He expressed his deep regret for his actions in causing Ms. Chivers' death and the shame that his actions have brought to himself, his family, and his country. He has been a model prisoner while in custody awaiting resolution of this matter. He has worked at attempting to enhance his English language skills, and to put himself in a position to rebuild his life. He appears to understand the effect that his actions have had on the Chivers family, his own family, and himself.

[30] Mr. Zhou continues to have the support of his family. His father has sold his business in China and his mother has taken a leave of absence from her job. They obtained a 10 year visa to reside in Canada and they have been present throughout these proceedings. Their intention is to continue to reside in Canada to be close to their son and support him while he serves his custodial sentence. When the sentence is completed and their son is deported to China, they will return there with him. Extended family members also attended at the sentencing hearing, as did one of Mr. Zhou's former teachers in China. He faces some obvious difficulties in rebuilding his life, but it is apparent that the prospects of him doing so are good.

[31] The circumstances of the offence are horrific. Mr. Zhou did not intend to cause Ms. Chivers death. However, his selfish, dangerous actions on that day did take her life. He was extremely intoxicated with a blood-alcohol concentration between 180 milligrams and 240 milligrams of alcohol in 100 millilitres blood at the time of the collision. That is between two and three times the legal limit. His driving leading up to the collision was outrageous. He drove in a dangerous manner leading up to the collision. Just prior to the collision, in a residential neighbourhood with a posted speed limit of 60 kilometres an hour, he was travelling at the maximum speed possible in the vehicle, 188 kilometres per hour. He failed to stop for a red light, and collided head-on with Ms. Chivers' vehicle, which was stationary, waiting at the traffic signal. He maintained maximum acceleration, never braking before the collision.

[32] This sentencing hearing is neither intended to nor capable of compensating Ms. Chivers' family and friends for the value of Ms. Chivers' life. It is an attempt to balance the relevant sentencing considerations and arrive at an appropriate punishment for the crime which led to the loss of her life.

[33] With respect to the Immigration and Refugee Protection Act charges, Mr. Zhou paid an individual to assist him in defrauding the government of Canada in order to obtain a work permit. He paid another individual to assist him illegally setting up a business in Canada at an attempt to earn a profit. Canada prides itself on an open society which welcomes immigrants. Those immigrants contribute to our economic and social fabric as a society. When someone defrauds the system, it has the potential to impact the faith of Canadians in our immigration system, and that fact may influence the willingness of Canadians to accept immigrants and refugees.

[34] If, as I believe, Mr. Zhou's remorse is genuine, specific deterrence is not an issue which needs to be emphasized in this decision. However, given the consequences of his actions, and the terrible toll that impaired drivers extract on our society, denunciation and general deterrence remain paramount considerations in arriving at an appropriate sentence. I mindful of the principle of restraint and the mitigating factors in this case. However, I am of the view that the appropriate sentence on the charge of impaired driving causing death is a sentence of six years in custody. In addition, Mr. Zhou will be sentenced to one year consecutive on the charge under section 122 of the Immigration and Refugee Protection Act, and one year concurrent on the charge under section 127 of that legislation. If not for the principle of totality, I would accede to the Crown's request for two years in custody on those charges.

[35] In addition, Mr. Zhou shall be prohibited from operating a motor vehicle on any street, road, highway or other public place anywhere in Canada for a period of 10 years following his release from prison.

Released: July 14, 2017

Signed: Justice A. Thomas McKay