B.C.'s highest court has dismissed the appeal of Carol Ann Berner, who was convicted in the drunk-driving death of four-year-old Alexa Middelaer in Delta.
In July 2010, Berner was found guilty of impaired driving causing death, impaired driving causing bodily harm, dangerous driving causing death and dangerous driving causing bodily harm.
The tragedy happened when Berner was driving north on 64th Street in Delta and lost control of her 2000 Oldsmobile after she hit two well-marked speed bumps at about 91 km/h. She then hit a parked vehicle, which in turn struck Alexa, killing her, and also hit Alexa's aunt, who was injured.
Provincial Court Judge Peder Gulbransen sentenced Berner to 30 months in jail. She was released on bail pending her appeal, which was heard last November.
On appeal, her lawyer argued that Gulbransen had erred when he failed to enter a stay of proceedings over the destruction of Berner's vehicle following the May 2008 fatal collision.
Delta police handed her vehicle over to ICBC, which sold the vehicle for scrap in December 2008, while Berner was still under investigation.
Berner's lawyer also argued that the failure of the judge to require an accident reconstructionist to testify was another error that called for an acquittal.
A month before the trial, the defence learned that the accident expert was not available to testify but was still on active duty. A second expert was called and his testimony included an admission that the first expert had erred in his calculations at the scene, Berner's lawyer said.
The Crown told the three-member panel of the B.C. Court of Appeal that there had been no such errors and called for the conviction to be upheld.