Two years after launching an appeal of her impaired and dangerous-driving convictions, Carol Ann Berner was put in jail to begin serving her sentence for causing the death of toddler Alexa Middelaer.
But her incarceration this week was short.
Hours after B.C. Court of Appeal Justice Kathryn Neilson announced the decision to dismiss Berner’s appeal, the 60-year-old – who had been free on bail pending the decision – was granted release pending her appeal of her sentence.
The date of that hearing is expected to be determined later this week, Crown John Gordon said. He noted that appeal court Justice Catherine Ryan has indicated she wants it heard before the end of March.
The dismissal of Berner’s convictions appeal was heard in Vancouver chambers Tuesday.
Gordon said outside court that he was not surprised the appeal was dismissed.
“This is good,” Gordon told Peace Arch News. “All of the convictions were upheld.”
In July 2010, Berner, 60, was found guilty 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 in May 2008, striking and killing Alexa.
The four-year-old, who attended preschool in Crescent Beach, had been feeding a horse at the side of the road with her aunt, Daphne Johanson, who was seriously injured in the collision.
Berner was sentenced to 2½ years in prison and a five-year driving ban.
Her appeal was heard on Nov. 10, 2011. At that time, Berner’s lawyer David Tarnow asked Neilson and Justices Catherine Ryan and Elizabeth Bennett to acquit his client or call for a new trial, arguing that the trial judge had erred on several points of law in convicting Berner.
This morning, Johanson – who still has mobility issues as a result of the injuries she suffered – was in attendance as Neilson released the 41-page judgment that explains the dismissal. Alexa’s mother, Laurel Middelaer, was delayed by heavy traffic, arriving shortly after the few seconds it took to announce the decision. Alexa’s father, Michael, was unable to attend.
Learning that the convictions had been upheld, Alexa’s mother – who is head of Southridge Junior School – expressed relief.
“We really didn’t know. We had a lot of angst leading up to this moment,” she told media outside court, referring to the length of time it took to receive a decision.
“It’s a good day for our family.”
Asked her feelings on Berner’s pending sentencing appeal, Middelaer said the penalty is not the family’s focus.
“It’s not about Ms. Berner. We’ve elevated beyond that,” she said. “What happens to Ms. Berner is inconsequential to us.”
More important is the message that the courts are sending in such cases, she said.
“There are some real encouraging signs,” she said, citing a reduction in the number of fatalities on the road.
“But why can’t we do better?”
Jason Tarnow – who, with his father, David, represented Berner through her trial and appeal – told Peace Arch News that while he had been surprised at the trial’s outcome, he “wasn’t holding (his) breath” that the appeal would be successful.
“I was hopeful,” he said.
Tarnow noted the appeal judges did agree with certain aspects that defence had put forward, including that Berner had effectively been detained when she was questioned by a police officer in the back of a patrol car at the crash scene.
“The detention was not one of short duration,” Ryan writes. “Thus Ms. Berner ought to have been advised of her right to counsel… before her tape-recorded statement was taken.”
Regardless, the court agreed the statement she gave, regarding consuming two glasses of wine more than three hours prior, was admissible.
“So it really got us nowhere,” Tarnow said. “They still said… the statement should still go in as evidence.”
Tarnow also pointed to the fact that the judges described destruction of Berner’s vehicle before she was charged as “disturbing.”
At the same time, Ryan notes she agrees with the trial judge’s finding that Berner’s defence was not prejudiced by the move.
“At least the Court of Appeal gave it some acknowledgment,” Tarnow said.
“To obtain a judicial stay of proceedings in any trial, the threshold, it’s really, really high. I thought we had met it, but obviously, the Court of Appeal, while they find it disturbing, didn’t feel that it met that threshold.”
The Crown had submitted that Berner had been agreeable to being put in the police car; that the issue of the destroyed car had minimal impact at trial; and, that there was no question that Berner was guilty of dangerous driving.
“She didn’t even attempt to slow the vehicle down until it was far, far, far too late,” Gordon said at the 2011 hearing.
In the judgment, Ryan describes Berner’s driving on the date of the crash as “significantly different from her usual conduct,” and that evidence presented at trial “proves beyond a reasonable doubt that Ms. Berner’s ability to drive was impaired by alcohol.”
“In my view, the verdicts were ones a judge could reasonably render.”
Jason Tarnow, Gordon and Middelaer all commented on the length of time – more than a year – from the appeal hearing to Tuesday’s decision.
Gordon said while it is not unprecedented, it is “very unusual.”
Tarnow said he was surprised and noted the wait was hard on all sides.
“I sympathize with the Middelaer family for having to deal with this for over a year,” he said. “It was stressful on… everybody.
“Obviously, the court wanted to make sure they got it right; it was a very carefully written decision.”
Middelaer said the delay needs to be explained.
“That is a question I think we, as taxpayers, need an answer to.”
An application to have Berner re-released on bail, pending the hearing of her sentencing appeal, was to be heard Tuesday afternoon.
She had been out on bail since shortly after her conviction in November 2010, but was required to surrender herself Tuesday morning.