The B.C. Court of Appeal reserved judgment and extended bail Thursday afternoon in the hearing for Carol Berner – the woman found guilty of impaired driving in the 2008 death of toddler Alexa Middelaer.
Berner, who is appealing two counts of dangerous driving and two counts of impaired driving, did not attend the proceedings as spectators packed the courtroom Thursday morning in Vancouver – though she was in the building, having been ordered to surrender herself on the hearing date.
The 58-year-old was sentenced in November 2010 to 2½ years in prison and a five-year driving ban, but has been free on bail for the past year, pending her appeal.
Thursday – as Alexa’s mother, Laurel Middelaer, and aunt, Daphne Johanson, listened – Berner’s lawyer, David Tarnow, told judges that his client was effectively detained at the collision scene when she was left in a locked police car for about 30 minutes; that Berner wasn’t advised of her charter rights before she was questioned in that car; and that the officer on the scene didn’t have reasonable suspicion before administering a road-side breath test, in which Berner blew a ‘fail.’
Tarnow asked the judges to find that a statement Berner made to the officer while in the car about having consumed two glasses of wine more than three hours earlier “should have been ruled inadmissible.”
“Even if you’re not with me on that, I submit the reasonable suspicion test has not been met,” he said. “It is my respectful submission that (the officer) was on a fishing expedition and could not have had a reasonable suspicion the appellant still had alcohol in her body.”
Madam Justice Catherine Ryan told Tarnow she and Justices Kathryn Neilson and Elizabeth Bennett, on that issue, have to “see if somebody admits to drinking that afternoon and being involved in a horrific accident, if that amounts to reasonable suspicion.”
“That is the question,” Ryan said. “Your argument is – has to be – is that enough to suspect that she might be impaired?”
Tarnow also submitted that the destruction of Berner’s vehicle before she was charged left defence counsel without a crucial piece of evidence.
The trial judge erred in not declaring a stay as a result of the car’s destruction, he said; in “putting an onus on the appellant to somehow preserve the vehicle… when she wasn’t even suspected yet of a crime, at least in her mind.”
In addressing the detention issue, Crown John Gordon said it must be reviewed with regard “to the entire interaction as it developed.”
Gordon stressed that the trial judge accepted the officer’s testimony that Berner appeared agreeable to being put in the car. It was done, the officer said, to keep her safe and comfortable at a chaotic scene, Gordon said.
“Yes, the door locks – that is the function of doors in the rear seat of a police vehicle,” he said.
He agreed that while attention was focused on Berner – “how could it not be?” – there was no focused investigation: she was not searched, her car was not searched and the questions asked were of a general nature.
The officer’s questions to Berner about alcohol consumption were part of an accepted prescreening process, Gordon said. They wouldn’t be getting called to task if they had been asked during a routine roadside stop, he noted.
Gordon described the issue of the destroyed car as one that had minimal impact on the trial. The car had been independently inspected and defence counsel was provided all of the test results, he said.
“The condition of the car is what is crucial evidence – not the car itself. This was an independent mechanical examination and was deemed by the trial judge to be a competent independent mechanical examination.”
A separate inspection by defence is “not going to get the defence anywhere,” he added.
Gordon noted there is no question that Berner is guilty of dangerous driving. The trial judge reasonably concluded her judgment and reactions that day were defective or poor, he said.
“She didn’t even attempt to slow the vehicle down until it was far, far, far too late,” he said.
Outside court, Laurel Middelaer told Peace Arch News that it would be “an ironic twist of fate” if Berner won her appeal on the grounds she wasn’t properly detained.
Alexa’s mother recalled how the officer had placed Berner in the back of her patrol car so that she could help Middelaer find her eight-year-old son, who she had lost track of at the scene.
“A lot of it had to do with me,” Middelaer said. “I lost him in all the chaos. (The officer) saw me in a state of panic. That is why Ms. Berner (was in the car so long).”
She said she is hopeful the judges will “err on the side of common sense.”
Tarnow asked the judges to acquit Berner or to call for a new trial. He told reporters he believes his arguments were “very good points.”
“We’ll see if the three judges agree.”