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Berner asks highest court to hear appeal

Carol Ann Berner has asked the Supreme Court of Canada to hear an appeal of her convictions in the death of toddler Alexa Middelaer. - File photo/inset contributed
Carol Ann Berner has asked the Supreme Court of Canada to hear an appeal of her convictions in the death of toddler Alexa Middelaer.
— image credit: File photo/inset contributed

The woman whose impaired and dangerous-driving convictions in the May 2008 death of toddler Alexa Middelaer were upheld by the B.C. Court of Appeal has now asked the country's highest court to hear her case.

Crown counsel John Gordon confirmed Thursday that Carol Ann Berner "has applied (to the Supreme Court of Canada) for leave to appeal from the decision."

He is not convinced she will succeed.

"I would be blown away if they were to grant leave on this application," Gordon said, noting such applications are typically only granted if "the Supreme Court of Canada thinks… there's issues of national or public importance, or if there are conflicting decisions on what the proper legal principles are coming from other provincial courts of appeal."

"There aren't," he said. "The governing legal principles are well-established."

Berner's lawyer, David Tarnow, said he has "a good argument" to support the application, which was made Feb. 5.

"We now await their decision."

Both Gordon and Tarnow acknowledged that only a small percentage of such applications are successful.

Berner was found guilty in July 2010 of two counts of dangerous driving causing death and bodily harm and two counts of impaired driving causing death and bodily harm, after losing control of her car on a Delta street, striking and killing four-year-old Alexa and seriously injuring her aunt.

Alexa, who attended preschool in Crescent Beach, is the daughter of Laurel Middelaer, who heads up Southridge Junior School in South Surrey.

Thursday, Middelaer said the Supreme Court challenge makes an apology Berner gave during sentencing in Surrey Provincial Court "ring a little bit hollow."

"The hard thing for us, and I think for anyone who sat through the sentencing, is she publicly apologized and said she was going to take responsibility for her actions," Middelaer said.

"Everybody's entitled to a fair process, but at the end of the day there's a little girl who's dead and she should be in Grade 4 right now."

The provincial appeal of Berner's convictions was heard in November 2011, with Tarnow arguing that the trial judge had erred on several points of law in convicting his client.

That appeal was dismissed last November.

Next month, an appeal of Berner's 2½-year sentence is set to be heard in B.C. Court of Appeal. An application this morning by Tarnow to adjourn that hearing until after the SCC decision was denied, Gordon said.

Gordon said while he has asked for a decision on the leave application prior to the March 21 sentence appeal – typically, they take four to six months – the provincial hearing will go ahead with or without it.

- with files from Adrian MacNair

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