The lawyer for Carol Berner, the woman convicted in the 2008 crash in Ladner that killed four-year-old Alexa Middelaer, argued Thursday the trial judge made several errors that should result in an acquittal or a new trial for his client.
At the end of the day, however, the three-member panel of judges reserved judgment and extended Berner's bail.
Last year, Berner was convicted of impaired driving causing death, impaired driving causing bodily harm, dangerous driving causing death and dangerous driving causing bodily harm in the 2008 crash that killed Alexa and seriously injured her aunt, Daphne Johanson, in East Ladner.
On May 17, 2008, Alexa and Johanson were feeding a horse in the 4300-block of 64th Street when a car plowed into them. The little girl was fatally wounded and died later at B.C. Children's Hospital. Johanson was seriously injured, spent four weeks in the hospital recovering and several months in a wheelchair.
Berner was convicted on all four counts after a four-week trial last summer. In November, she was sentenced to two-and-a-half years in prison and received a five-year driving ban.
She has been out on bail since the appeal was launched following her sentencing. Berner was not present in the courtroom for Thursday's proceedings but she had surrendered herself that morning.
Berner's lawyer, David Tarnow, asked the B.C. Court of Appeal judges Thursday morning to acquit his client on all counts or to rule the case go to a new trial.
He argued that B.C. Provincial Court trial judge Peder Gulbrandsen erred when he failed to throw out Berner's charges over the destruction of her car, which he called a key piece of evidence, before she was charged.
Delta police handed the car over to ICBC, which subsequently sold it for scrap metal in December 2008. Tarnow argued he was unable to launch a full defence because he was unable to have the car inspected and pointed out there were recall orders on the ABS braking and steering systems that were not checked by the mechanic who inspected the car.
He also argued the defence was hampered by the fact the Delta police officer who worked on the reconstruction of the crash was unable to testify due to medical reasons.
The report the officer compiled following the crash had been deemed unsuitable as evidence, however the data he collected was accepted.
Tarnow also argued his client was detained in the back of the police car before she was read her rights and any evidence gathered by the officer at the scene before she was read her rights should have been deemed inadmissible.
Berner failed a roadside breath test after telling the officer that she had consumed two glasses of wine a few hours before the crash.
Crown counsel John Gordon defended the actions of the officer, saying she left Berner in the back of the car, where she thought she would be more comfortable and safer, so she could attend to other matters at the chaotic scene.
Gordon also argued that even without the car, there was sufficient evidence to show it was in working order at the time of the crash.
Outside the courtroom, Alexa's mom, Laurel Middelaer, said she was pleased with the reasonableness of the arguments presented.
"At the end of the day, it about the safety of the community."
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