Ontario Court of Justice

Court File No.: Central East - Newmarket 4911-998-18-00519 Date: 2019-09-09

Between: Her Majesty the Queen — And — Shanshan Xia

Before: Justice P.N. Bourque

Reasons for Sentence

Released on September 9, 2019

P. Westgate/T. Hamilton ............................................................... for the Crown

S. Weinstein ............................................................................ for the Defendant

BOURQUE J.:

Overview

[1] Today, I have learned a great many things about Jenny Dixon. Kind and considerate to her family and to others, worked hard to make ends meet, and full of good cheer and optimism. She was a nurse who cared for the dying in a hospice. She has 3 children. She had everything to look forward to. A career, children, friends and extended family.

[2] I have heard all of these things (and much more) from the family members and friends whose lives have been irrevocable altered by her death. For some of her family, the word "shattered" is a more apt description. One of her friends describes how she was, watching her grow into a "fabulous nurse". Her partner took some consolation that she spent the "last hours of her life tending to the needs of the dying". I heard from her daughter, her partner, her mother, her co-workers.

[3] I have viewed the Accident Reconstruction Report. I have viewed the pictures of Ms. Dixon's vehicle, torn and broken at the side of the road. It is hard for this Judge, or any Judge to not feel the same loss and anguish that has been expressed to me in this court today. As much as I would like to find them, I am at a loss as to finding the right words that will give any real comfort or consolation. The only thing I can do, is to express, by the sentence that I pronounce upon the person ultimately responsible for her demise, the shock and horror that the community feels today, when an innocent person is killed by an act that was totally preventable. It is my lamentable duty today to impose sentence upon Shanshan Xia, who has pled guilty to the offence of impaired driving causing death.

The Facts

[4] On the evening of October 25, 2018 Shanshan Xia had been out to dinner with her sister. Her children are staying with relatives. She finishes her dinner and gets a call from a friend who asks to meet her at a karaoke bar. She goes to the karaoke bar and after consuming sufficient alcohol to give her a blood alcohol reading of 150 milligrams of alcohol in 100 millilitres of blood, she drives her friend home and then heads home. She is significantly impaired. She was travelling at a high rate of speed (about 169 kilometres an hour at the time of the collision) and weaving slightly between the lanes. She was driving northbound on the Highway 404. She was in lane 1 and then drifted into the passing lane (lane 2) and she drives directly into the rear of the vehicle driven by Jenny Dixon. The impact is horrendous. The Dixon vehicle is driven off the roadway, where it rolled over multiple times. She was ejected from her vehicle and as a result of the extreme injuries done to her, she died at the scene.

[5] When police arrived, the defendant was still at the scene and her signs of impairment were obvious including watery eyes, slurred speech, lack of coordination and a lack of memory of the events that had just transpired. She was taken to the hospital and after some medical attention, she was provided her rights to counsel (which she exercised) and provided samples of her breath, yielding 158 and 151 milligrams of alcohol in 100 millilitres of blood. A toxicologist calculated that her minimum blood alcohol concentration at the time of the collision was 160 milligrams of alcohol in 100 millilitres of blood. That is double the legal limit.

[6] There is no doubt that Shanshan Xia was impaired by the consumption of alcohol and that impairment led directly to this motor vehicle collision and the death of Jenny Dixon.

The Defendant

[7] Shanshan Xia is a Canadian citizen. She has two children. She and her sister operate a nail salon. She works long hours. She is a single parent and the primary support to her family. She has never been convicted of a criminal offence. She has pled guilty to this offence. I accept this plea as a sign of remorse. She knows that this hearing today will result in a federal penitentiary sentence. She has had to send her children to her family members so they can take care of them until she is released from prison. Other than the severity of the crime she has pled guilty to, there is nothing in the personal circumstances of this defendant which could be anything other than mitigating.

[8] I have reviewed the many letters filed on her behalf by her relatives, friends and business associates. They describe her as a loving and caring single mother of two children, a considerate friend, and hard working in her business. They all speak of her feelings of shame and remorse for the harm she has caused. They all say that she wishes to stand before this court, before her community, and before the friends and family of Jenny Dixon to take responsibility for this crime. She has done so today.

The Law

[9] The offence of impaired driving causing death is an indictable offence and is punishable by a maximum sentence of imprisonment for life. In imposing a just and fit sentence, I must take into account the factors as enumerated under s. 718 of the Criminal Code. I must also be mindful of directions I receive from the Courts of Appeal in this province and where, as here, there are ranges of sentence provided for, I must not deviate from that range without some strong exception.

[10] York Region has the unenviable distinction of having over 1,000 new cases of drinking and driving in each of the past several years. That is some 20 new drinking and driving cases every week. The people of York Region should be appalled. That each and every drunk driver is a potential killer is a well-known fact. Within the past 6 months, 3 drivers have been sentenced (in this courthouse) for being impaired behind the wheel of a car and killing an innocent person. Ms. Xia is now the fourth. Just three years ago, a drunken driver blew through an intersection and killed 4 members of a family, 3 of them children. A sentence of 10 years in prison doesn't seem to have had a salutary effect upon the drivers of York Region.

[11] I am drawn to the words of Justice McKinnon, which were spoken almost 35 years ago. In the case of R. v. McVeigh, he said:

…No one takes to the road after drinking with the thought that someone may be killed as a result of his drinking. The sentences should be such as to make it very much less attractive for the drinker to get behind the wheel of a car after drinking. The public should not have to wait until members of the public are killed before the courts' repudiation of the conduct that led to the killing is made clear. It is trite to say that every drinking driver is a potential killer.

Members of the public when they exercise their lawful right to use the highways of this province should not live in the fear that they may meet with a driver whose faculties are impaired by alcohol. It is true that many of those convicted of these crimes have never been convicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence would be in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone any length towards solving the problem. In my opinion, these are the very ones who could be deterred by the prospect of a substantial sentence for drinking and driving if caught. General deterrence in these cases should be the predominant concern, and such deterrence is not realized by overemphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving.

[12] In arriving at the appropriate sentence for Ms. Xia, I take all of these factors into account. I specifically do not sentence her for all the other offenders that I have referred to. I point them out to illustrate that it is general deterrence and denunciation which are the primary factors to consider when passing sentence for this offence.

[13] Both the Crown and defence have urged upon me a sentence of 5 ½ years to be served in a federal penitentiary. In my opinion, that falls within the appropriate range of between 5 and 7 years for this offence.

[14] I sentence the defendant to be imprisoned for 5 years and 6 months in a federal penitentiary. I also prohibit her from driving for a period of 10 years. She will provide a sample of her D.N.A.

[15] Such a sentence will be a great hardship to this defendant, and to her family.

[16] No sentence I can pass can adequately compensate and console the family of Jenny Dixon. I began my remarks by speaking about her. I end my remarks speaking about her. Our community cannot afford to have a "fabulous nurse" taken from us. I think of all of the people who will not benefit from her professional and compassionate care. I think of her children. I think of her mother. Her family and friends will never forget her. Neither will I.

Released: September 9, 2019

Signed: "Justice P.N. Bourque"