A lawyer for the drunk driver convicted in the death of four-year-old Alexa Middelaer argued Thursday that the trial judge made several errors that should result in an acquittal or a new trial.
In July 2010, Carol Ann Berner was found guilty of impaired driving causing death, impaired driving causing bodily harm, dangerous driving causing death and dangerous driving causing bodily harm.
The tragedy happened when Berner was driving north of 64 Street in Delta and lost control of her 2000 Oldsmobile after she hit two well-marked speed bumps at about 91 km/h. She then hit a parked vehicle, which in turn struck Alexa, killing her, and also hit Alexa’s aunt, who was injured.
She was sentenced to 30 months in jail but was released on bail pending her appeal, which opened Thursday in the B.C. Court of Appeal.
David Tarnow, a lawyer for Berner, said the trial judge, Provincial Court Judge Peder Gulbransen, erred when he failed to enter a stay over the destruction of Berner’s vehicle following the May 2008 fatal collision.
Delta police handed over Berner’s Oldsmobile to ICBC, which sold the vehicle for scrap in December 2008, while Berner was still under investigation, court heard.
“That car was paramount to the case of the Crown,” said Tarnow. “It was a key bit of evidence, yet it was destroyed before Ms. Berner could even be charged.”
Tarnow told a three-member panel of the B.C. Court of Appeal that the failure of the judge to require an accident reconstructionist to testify was another error that called for an acquittal.
A month before trial, the defence learned that the accident expert was not available to testify but was still on active duty, said Tarnow.
A second expert was called and his testimony included an admission that the first expect had made some errors in his calculations at the accident scene, he said.
Tarnow also argued that the accused’s rights were violated because she was under detention when required to blow into a roadside device before her Charter rights were read to her. Berner, who was placed in a locked police vehicle, failed that roadside test after telling police she’d had two glasses of wine a few hours earlier.
Though the trial judge found that Berner was not in fact being detained prior to the roadside test, Tarnow argued she was under detention.
Crown counsel John Gordon began his submissions by saying that placing Berner in the comfort of the air-conditioned police cruiser made sense and did not amount to a detention.
He defended the actions of the officer, who left the vehicle to assist a number of parties including Alexa’s mom and was responding to a chaotic accident scene.
Outside court during the noon break, Alexa’s mom, Laura Middelaer, commented that what she heard was similar to what she heard at trial.
She said the hardest thing for her was hearing details of the collision scene again.
Middelaer said everyone is entitled to their rights but questioned whether Berner’s rights were violated.
“I had a right to be helped by a police officer. My daughter had a right to be on the side of the road that day and to be safe.
“So hopefully common sense will prevail. I think it’s very clear what happened that day and I’m hoping that the judges will see that.”
Gordon was expected to finish his submissions Thursday afternoon. The three-member panel was then expected to reserve judgment.
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