Trial in fatal B.C. crash to go on: judge

A provincial court judge in Surrey, B.C., has rejected a defence application to have the charges stayed against a woman accused of impaired and dangerous driving causing the deathof four-year-old Alexa Middelaer.

Carol Berner's lawyer, David Tarnow,had argued that the Crown and police were negligent in allowingBerner's car to be scrapped after the May 2008accident that killed Middelaerand seriously injured her aunt, Daphne Johnson.

Tarnow said that made it impossible for him to have the car examined to determine whether mechanical problems might have caused Berner's car to leave the road and plow down Middelaerand Johnson.

Judge Peder Gulbransen ruled Wednesday that the Crown and police were not negligent.

"The police had no legal power to control what happened to the vehicle," Gulbransen said. "The decision was Ms. Berner's and ICBC [Insurance Corporation of B.C.]."

The Crown had argued that it was not untilseveral months after the accidentthat ICBC decided to junk Berner's car and that it had notified her it was about to do so.

If Berner wanted to have it examined, there was ample opportunity, the Crown said.

Tarnow argued that there was no proof that Berner had received the ICBC noticeand that he could not mount a proper defence without a forensic examination of the car.

Victim's mother relieved

Middelaer'smother said she was relieved to hear the judge's decision.

"Reasonableness prevailed today," saidLaurel Middelaer. "We don't feel happy.Our daughter is dead. What we do feel content about is that the case will continue."

A Delta police spokeswomandeploredthedefence team's criticism of the way the departmentdealt with Berner's car.

"For defence to attack the reputation of the Delta Police Department and its officers is an act of desperation and frustration," said Charlene Brooks, the force's media liaison.

But one of Berner's lawyers insisted the police acted wrongly.

"I guarantee you Delta police is kicking itself in the butt for disposing of this [car] before trial," said Jason Tarnow. "I guarantee you that it will change its practices from now on."

Berner, 57,was driving on a rural road when her car veered off the paved surface and hit Middelaer and her aunt, who were feeding a horse ata farm fence on the roadside. Middelaer died at the scene.

Berner is charged with impaired driving causing death and dangerous driving causing death.

After the judge's decision was announced Wednesday, Tarnowtold the court he would not be calling any witnesses, meaning Berner will not be testifying in her own defence.

The trial resumes Thursday, when it's expected the judge will discuss the scheduling of closing arguments in the case.