The Delta woman convicted of killing four-year-old Alexa Middelaer in a 2008 drunk driving crash has had her appeal of her two-and-a-half jail sentence dismissed by the B.C. Court of Appeal Thursday in Vancouver.
Carol Berner was convicted in 2010 of two counts of dangerous driving causing death and bodily harm and two counts of impaired driving causing death and bodily harm.
Berner's lawyer David Tarnow argued that a one minute and 42 second video of Alexa Middelaer's preschool Christmas play shown to the courtroom during the victim impact statement at sentencing was influential to the trial judge.
"To allow this to have been done at a sentencing hearing just escalated [emotions] to a level I haven't seen in 36 years," said Tarnow, adding this may have contributed to the length of the sentence.
He also argued the length of the sentence was out of step with other cases involving dangerous driving causing death, and with Berner's lack of a criminal history she was a "perfect candidate for a community sentence."
"She's been on bail for years now and there's never been any problem," he said.
But B.C. appeals court justices Christopher Hinkson, Anne MacKenzie, and Catherine Ryan determined the sentence was well within the allowable minimum of 18 months and seven years.
Tarnow admitted the trial judge did not actually see the Christmas video either, nor could he prove it would have had an effect on his judgment.
The Court of Appeal dismissed Berner's appeal of her sentence but a written ruling will not be issued until a later date. She surrendered herself into custody later that day.
Berner can still take the appeal of her sentence to the highest court, the Supreme Court of Canada, but her lawyer Jason Tarnow said she has not yet indicated a desire to do so.
"This journey has taken almost five years, which is longer than my daughter was alive," said Michael Middelaer, father of Alexa, outside the courtoom.
He called the appeal yet another step in the "realm of the ridiclous," but that the family is committed to seeing the legal process to its conclusion.
As for the Christmas video, Middelaer didn't think it was unduly influential to the sentencing process.
"The fact of the matter is, that video was brought in by our family to make the courts and society recognize what we are discussing, we're discussing the loss of a child," he said.
Berner had previously appealed her conviction to the B.C. Court of Appeal and the Supreme Court of Canada. In both cases, her appeals were dismissed.
Berner’s lawyers argued the trial judge had erred in finding the destruction of Berner’s Oldsmobile by ICBC, before the defence could have it independently inspected for mechanical defects didn’t infringe on her right to make a full defence.
They also argued Berner was found guilty despite a lack of evidence of impairment, and that she had not been advised of her right to counsel before her tape-recorded statement was taken.
On May 17, 2008, four-year-old Alexa – who attended preschool in Crescent Beach – was feeding a horse in Ladner, when Berner struck and killed her. Alexa’s aunt was also seriously injured.
Berner was sentenced to two-and-a-half years in prison and banned from driving for five years, but has so far served just days in custody, having been out on bail pending her appeals.
Michael Middelaer, father of Alexa, speaks to reporters outside the BC Court of Appeal in Vancouver on Thursday morning (March 21). Adrian MacNair photo.