[1] MCEACHERN, C.J.B.C.: The appellant, an aboriginal person, now aged 58 years was sentenced following a guilty plead to impaired driving causing death to a term of imprisonment of three and one-half years.

[2] The circumstances of the accident are very serious, the appellant having been drinking and having a breathalyzer reading of 2.63, traveled nearly five kilometers down the wrong side of highway 97 and collided with an oncoming car killing the other driver and, of course, causing a terrible loss to his family.

[3] The appeal, argued by Mr. Jensen, was based almost entirely upon s. 718.2(e) of the Criminal Code which calls for special consideration to be given to aboriginal offenders.

[4] The history of the appellant is an unfortunate one and I think I cannot do better than to quote from the pre-sentence report:

[5] In addition, I should mention that the appellant was convicted of impaired driving in 1973 and again the same offence in 1980 and he was also given the benefit of three roadside suspensions during that period.

[6] The evidence seems to be that he was very seriously addicted to alcohol up to 1980 but after his conviction in that year he seemed to get a new lease on life. He stopped drinking and while in that sober state he became involved in the affairs of his band. He was elected to the band counsel, he secured employment with the band and seemed to be doing very well until about 1990 when he started to drink again. As a result he lost an election in 1996 and more or less, as counsel said, been drunk pretty well all of the time since 1990.

[7] The accident happened in January 20^th, 2000. There are many cases which suggest that the range for this offence is from three to six years. While I think that it might be too high in some cases it seems to be what the court is imposing in a majority of these cases. The only question we have to consider is whether s. 718.2 (e) can be applied in this case to require the sentence to be reduced to time served and a probation order, as Mr. Jensen argued, or to some lesser sentence possibly two years with a probation order.

[8] The reasons for judgment as Mr. Tischler has pointed out to us show that the learned trial judge was very much alive to the provisions of the Code, to which I have referred. He mentions those provisions on several occasions. He quotes from the well-known case of R. v. Gladue [1999] 1 SCR 688 (S.C.C.). The concern that I have about this case is that while the learned trial judge did refer extensively to the Criminal Code and the relevant jurisprudence including Gladue, it does not seem to me that reference to those matters is necessarily enough to give proper weight to the statutory intention.

[9] I have the view that in the fullness of time we will come to realize that we should go back well into the childhood of aboriginal persons who suffer the kind of misfortune this person suffered and determine whether it is appropriate to sentence them in a conventional way. I think that matter needs a great deal of attention. If I did not find myself constrained by authority, I would be seriously tempted to allow this appeal and to provide what I think would be a more enlightened sentence - a sentence that would return this person to his community under supervision where he would receive the kind of supervision and attention he deserves. In the present state of the law however, I do not think that I can say that the learned trial judge erred in failing to give proper consideration to the aboriginal status of the appellant. Nor did he fail to give effect to the other principles of sentencing that are contained in s. 718 and s. 718.2 of the Criminal Code. I am not able to say, in view of the many references the trial judge made to the statutory provisions and the authorities, that he erred in imposing a conventional sentence in the serious circumstances of this case. A life has been taken through absolutely terrible driving by a person who, his own counsel admits, has been pretty well drunk for the last ten years. As I say, I cannot say that there has been legal error that would justify that the sentence imposed in this case was unfit.

[10] For the above reasons, I would dismiss this appeal.

[11] FINCH, J.A.: I agree that the appeal should be dismissed. I would add these comments: S. 718.2 (e) says "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of aboriginal offenders". On my reading of the trial judge's reasons he did give a careful consideration to all relevant factors including the circumstances of the appellant as an aboriginal offender. He did pay particular attention to his most unfortunate, disadvantaged and unhappy history. The question before us however is, in all of the circumstances, a sentence of three and one-half years unfit? It appears to me that sentence is in accord with a number of other sentences either imposed by or affirmed by this Court. I am satisfied that the sentence was not unfit. I too would grant leave but dismiss the appeal.

[12] SAUNDERS, J.A.: I agree with the reasons of Chief Justice McEachern and Mr. Justice Finch.

[13] MCEACHERN, C.J.B.C.: The appeal is dismissed.