Citation: ¢-

Date: ¢-

File No: 171252-1

Registry: Surrey

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

REGINA

F I LEO JUl 21 ~~

v.

CAROL ANN BERNER

There has been an order made pursuant to S. 486.5(1) of the Criminal Code that no person shall publish in any document, or broadcast or transmit in any way any information disclosed in or in relation to this trial, that could identify the undercover operators in the investigation of the Accused, including any pseudonyms used by the undercover operators.

July 27, 2010

REASONS FOR JUDGMENT OF THE

HONOURABLE JUDGE P.O. GULBRANSEN

Counsel for the Crown:

Counsel for the Defendant:

W. Sayson, K. Wendel

Place of Hearing:

Dates of Hearing:

Date of Judgment:

D. Tarnow, J. Tarnow Surrey, B.C.

May31,June1,2,3, 7,9,14,15,16,17,21,22,23,24,2010

R. v. Berner

Page

1

Introduction

[1] On May 17, 2008, Carol Berner lost control of her car as she drove northbound on 64th Street in Delta. Her vehicle left the roadway, colliding with a car parked on the east shoulder, then striking four-year old Alexa Middelaer and her aunt Daphne, who were standing at a nearby fence. Alexa was killed; her aunt was severely injured. Ms. Berner has been charged with causing death and bodily harm by dangerous operation of a motor vehicle and by operation of the vehicle while her ability to drive was impaired by alcohol.

[2] The Crown submits that these charges are supported by evidence that the

accused drove at an excessive speed, ignoring the presence of two speed bumps; that she failed to confine her vehicle to the roadway; and that she had a blood/alcohol level between 63 and 100 milligrams of alcohol per 100 millilitres of blood (mgs %) when the accident occurred.

[3] The accused replies that the Crown has not proven beyond a reasonable doubt

that she was responsible for the accident. She points out that her car had been the subject of three recall notices regarding the braking and steering systems. That is, she submits, there was a real possibility that there was a sudden mechanical failure which caused her car to go out of control.

[4] As well, the defence suggests that the reconstruction of the accident and the speed calculations done by the Crown expert are potentially flawed. The officer who took the measurements at the scene made at least one fundamental error in taking the measurements eventually used by the Crown expert who reconstructed the accident.

R. v. Berner

Page

2

[5] Ms. Berner also asserts that there is virtually no evidence that her ability to drive

was impaired by alcohol. She points out that none of the witnesses who dealt with her

on that day, including peace officers and ambulance attendants, noticed anything in her

appearance, behaviour or physical movements which suggested that she was under the

influence of alcohol. She also emphasizes that because her blood/alcohol level could

have been as low as 63 mgs %, there is no definitive scientific proof that her ability to

drive was impaired by alcohol.

[6J My decision in this trial must focus mainly on the weight or significance that I

• the speed at which the accused drove the car at the time of the accident and the manner in which the accused lost control of it;

should attach to the evidence given by three Crown experts concerning:

• the mechanical condition of the accused's car;

• the effect on her ability to drive that would result from the presence of the volume of alcohol found to be in her body at the time.

[7] The accused was also subject to an undercover police operation where she

discussed the accident in detail on several occasions with a woman who had befriended

her and who unknown to the accused was a police officer. Ms. Berner did not confess to

committing any crimes, but did provide a fairly detailed version of her memory of the

incident. I will also have to assess this evidence and determine what weight if any, that I

should give to it.

R. v. Berner

Page

3

Relevant Legal Principles

[8] The fundamental premises of Canadian Criminal law are that a person accused

of a crime is presumed to be innocent; that the burden of proving the guilt of the

accused is always on the Crown and never shifts to the accused; that a court can only

convict if the court is satisfied that the evidence proves beyond a reasonable doubt that

the accused is guilty.

[9] A reasonable doubt is a doubt based on reason and common sense. It cannot be

an imaginary or frivolous doubt. It cannot be based on conjecture or on sympathy for the

accused.

[10] Proof beyond a reasonable doubt requires much more than proof that the

accused is probably guilty. The Crown is not, however, required to prove its case to an

absolute certainty. In cases involving circumstantial evidence, an alternative way of

stating the same standard is that the guilt of the accused must be the only rational

conclusion which can be drawn from the evidence. R. v. Ufchus, [1997J 3 S.C.R. 320

n ••• operates a motor vehicle on a street, road, highway or other public place in a manner that is dangerous to the public having regard to all the circumstances, including the nature, condition and use of such place and the amount of traffic that at the time is or might reasonably be expected to be in such place."

Dangerous Driving

[11] S. 253 (1) of the Criminal Code states that a person commits an offence who:

R. v. Berner

Page

4

[12] The offence of "Dangerous Driving" is concerned with pronounced or markedly

negligent driving conduct. All persons who drive a motor vehicle must conform to a basic standard of reasonable conduct. Failure to comply with that standard constitutes negligence, "Negligent driving can be thought of as a continuum that progresses, or regresses from momentary lack of attention giving rise to civil responsibility through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code." R. v. Hundal, [1993] 1 S.C.R. 867 (S.C.C.)

[13] Thus the offence of dangerous driving involves conduct that is more than

momentary inattention or simple negligence. The Crown must prove that the conduct of the accused " ... amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's situation." (emphasis added) Hundal, supra.

[14J The court must also consider any evidence about the actual state of mind of the accused,( if there is any evidence), to determine "whether it raises a reasonable doubt whether a reasonable person in the accused's position would have been aware of the risk created by this conduct" R. v. Beatty 2008 S.C.C. 5 paragraph [49]. This inquiry concerns circumstances where there is evidence of some intervening event which may raise a reasonable doubt that the accused had any control over his driving conduct. This would occur when, for example, an accused suffered a sudden unexpected heart attack or epileptic fit. It could also encompass a situation where the car driven by an accused suffered a sudden, unexpected mechanical breakdown.

R. v. Berner

Page

5

Impaired Driving

[15] Driving while impaired is not synonymous with driving while drunk or driving while

intoxicated. It is an offence for a person to operate a motor vehicle while the person's ability to operate the motor vehicle is impaired by alcohol or a drug. The verb "impair" is defined in Webster'S New World Dictionary as: "make worse, less, weaker, etc." It can also mean "damage" or "reduce." Driving a motor vehicle is a complex task, requiring a driver to have the physical ability to properly control the speed and direction of the vehicle; to have the mental ability to perceive and react to such things as road and

traffic conditions, traffic lights, road signs or pedestrians. A driver must have the ability to constantly absorb and react to such information while at the same time being able to safely conduct the vehicle down the road.

[16] The ability to perform this complex task can be made worse or reduced by subtle effects of the consumption of alcohol. A slight reduction in the ability to react and apply the brakes or a reduction in the ability to steer properly or in the ability to notice and react to traffic signs may impair a person's ability to drive. The problem is, however, that it may be quite difficult for the Crown to provide evidence that proves beyond a reasonable doubt that there was a "slight" impairment of the ability to drive. The Crown does not have to prove that the consumption of alcohol has had a marked effect on a person's ability to drive. R. v. Stellato. [1994] 2 S.C.R, 478n

[17] Most often the Crown must depend upon observations made by witnesses about

the accused's appearance and behaviour to prove its case, This typically includes evidence of such phenomena as: erratic driving; bloodshot, watery eyes; flushed face;

R. v. Berner

Page

6

odour of liquor; poor balance; difficulty in walking or turning; problems with fine motor

coordination; difficulty following instructions; emotional volatility or slurred speech. Aside

from erratic driving, these other symptoms do not directly relate to a skill or task

involved in driving. Rather, these symptoms tend to prove that the accused was

intoxicated, from which the court may infer that the ability of the person to drive must

have been impaired by alcohol.

[18] The Crown is not required to prove that the accused displayed any particular

symptoms of intoxication or impairment by alcohol or that the observed effects of

alcohol were severe or pronounced. However, a court cannot convict an accused on

weak or slight evidence. There must be cogent evidence which satisfies the court that

the accused's guilt has been proven beyond a reasonable doubt.

[19] The principles which govern the court's assessment of the evidence are:

• A trial judge must consider the evidence as a whole, not the individual pieces of evidence. The judge cannot ignore reliable evidence which is inconsistent with impairment by alcohol and only rely on evidence which supports the Crown's case.

• Without the assistance of expert testimony. a trial judge can draw no

inferences about the effects of alcohol on the accused's ability to drive based solely on the results of the analysis of breath or blood samples.

• The results of the analysis of a breath sample provided by the accused into an Approved Screening Device and any evidence given by the demanding officer about what the result may mean, are only admissible to establish that the officer had a proper basis to read the demand for a breath sample. This evidence is not admissible for any other purpose. R. v. Orban ski; R. v. Elias, [2005] 2 S.C.R. 3

[20] Proof of causation for the offence of "impaired operation" of a motor vehicle

causing death or bodily harm must focus on the evidence which establishes a

R. v. Berner

Page

7

connection between the impaired condition of the accused and the conduct which caused death or bodily harm, The test was set out by the B.C, Court of Appeal in R. v. Andrew 1994 Canlii 3288, The court indicated that the Crown must establish that the accused's" ... impaired driving ability as evidenced by driving conduct, a failure to react or make a certain judgment, comprises a contributing cause, outside the de minimis range, to the victim's death or bodily harm."

The Victims

[21) In the late afternoon of May 17, 2008, Daphne Middelaer (now Johansson) drove

her niece Alexa and her parents, John and Yvette Middelaer, to a farm on 64th Street. Alexa wanted to show her grandparents a horse that she had befriended there. They had stopped en route to purchase some treats that Alexa could feed the horse.

[22] Daphne parked her Honda Civic on the east side of the street partly 01) the gravel

shoulder and partly on a grassy area that bordered the shoulder. The car was well off the road. Daphne and Alexa went to a fence which bordered the grassy area. The horse soon came over to where they were standing. Daphne and Alexa began feeding it. Daphne recalled hearing a "horrible, terrible noise." Looking to her right, she saw a car coming sideways down the road. Dirt was flying. She can recall nothing after that about the accident.

[23] John Middelaer recalled that he was sitting in the rear passenger seat of the

Honda. His wife was in the front passenger seat. He heard a "frightening noise" of screeching tires and a "high rewing" engine, Something struck the Honda very hard from behind, knocking it quite a distance forward. He was shaken up but suffered no

R. v. Berner

Page

8

major injury; neither did Mrs. Middelaer. When he got out of the car, he could see his daughter and granddaughter lying motionless on the ground near the fence. He thought that they had both been killed.

[24] Alexa did not survive her injuries. Daphne survived, but had numerous serious injuries, including a closed head injury; fractured shoulder and upper arm; broken clavicle ribs and pelvis; compound fracture of her lower left leg. She had to undergo 13 hours of surgery to initially repair the damage to her body.

The Scene

[25] 64th Street is a paved two-lane road. It is straight and flat extending northward

from a point a few blocks south of zs" Avenue, near Boundary Bay. This is a rural area, containing farms on relatively large lots, the road made narrower by ditches on either side. The nature of the neighbourhood changes a few kilometres to the north near the intersection with Ladner Trunk Road, where there is a subdivision which extends north of 43A Avenue and mainly west of 64th Street. At this point the east side of the road is still agricultural land. The next intersecting streets to the north are Sunrise Lane and Dawn Drive. The accident occurred about midway between those two streets.

[26] North of Sunrise Lane the road is much wider; the ditches have been filled in.

The east side of the road contains a gravel shoulder about 4 feet wide as well as a grassy area about the same width east of the shoulder. The grassy area is bordered by a fence. There is sufficient room in that area to park motor vehicles, something that visitors to the nearby homes commonly do. This part of 64th is a quiet suburban road, but it is certainly not deserted or isolated. The speed limit on this part of 64th is 50 kmh.

R. v, Berner

Page

9

Route Driven by the Accused

[27J On May 17, 2008, Ms. Berner resided at 6900 36th Avenue in Delta, approximately 2.6 kilometres from the accident scene. Shortly before 5:00 p.m. she drove her red 2000 Oldsmobile Intrigue west on 36th for one kilometre, turning north on 64th. The speed limit on 64th at this "Til intersection is 60 kilometres per hour. About 1 kilometre to the north the speed limit changes to 50 kmh. First there is a sign warning of the change and then about 200 meters further north a sign which declares that the speed limit is 50 kilometres per hour.

[28) About 30 meters north of that sign, there is another sign which indicates that there are speed bumps ahead. A further 60 meters ahead there are two speed bumps covering the whole road, governing both north and south bound traffic. They are approximately 2 meters wide and about 1 % car lengths apart. The bumps are marked by two large white triangles. It is about 300 meters from the speed bumps to the collision scene.

What Happened?

[291 It was a clear sunny May afternoon, Traffic was light. The only other vehicle on

the road was a motor scooter driven by David Hargreaves who was driving south on 64th. He was about 600 or 700 metres away when he saw the Oldsmobile "fishtailing" on 64th going northbound. He saw it travelling sideways taking up much of the road. He looked away briefly, and when he looked again it was still moving northward but it appeared that the opposite side of the car was facing him. Then he heard (but did not see) the collision. There were no other witnesses who saw the movements of Ms.

R. v. Berner

Page

10

Berner's car although many of them heard the loud crash when the Oldsmobile struck the Honda.

[30] Etta Stevens, who resides at 4343 64thStreet, heard the approach of the accused's vehicle before the crash. Her house is on the west side of the street bordering the north corner of 43A Avenue. She was reading in her front yard when she heard a car approaching from the south. She did not see the car because her view was blocked by a fence. By the sound of the engine, she thought that the vehicle was travelling at a speed that was higher than normal for that road. She waited for the vehicle to slow down but it did not. She heard it go over the speed bumps at a fast pace. That is, there was a very short interval between the car hitting the first speed bump and the second bump. A few seconds afterwards she heard a loud crash. Ms. Stevens was familiar with the sound of various vehicles going over the speed bumps because she has lived in that house for 23 years.

[31] At the sound of the crash many of the occupants of nearby houses rushed to the scene to offer assistance. An ambulance arrived within minutes. Daphne and her niece were eventually taken to hospital by helicopter. Ms. Berner was still in her car when the first witnesses arrived. One of them helped her get out of her car, eventually getting her to sit down on a sidewalk on the west Side of the street. It did not appear to them that she had suffered any significant injuries. Several witnesses noticed that she appeared to be sunburned.

[32] Constable Swallow of the Delta Police was the first police officer to arrive at the

scene; she took responsibility for dealing with Ms. Berner. Eventually the officer made a

R. v. Berner

Page

11

demand that the accused provide a breath sample into an approved screening device. The result was a "fail," after which Constable Swallow made a demand for breath samples pursuant to s. 254(3) of the Criminal Code. After first taking the accused to the hospital to see a doctor, Constable Swallow then took Ms. Berner to the Delta Police station where she provided two breath samples at 7:59 and 8:20 p.m. The results of the analyses of the samples were 60 and 40 milligrams of alcohol per 100 millilitres of blood respectively,

[33] None of the witnesses who dealt with Ms. Berner, including two police officers

and two ambulance attendants, noticed that she displayed any symptoms of being affected by alcohol. She seemed to walk without difficulty, spoke clearly, understood what others said to her, had no signs of poor balance and had no smell of liquor on her breath. (The grounds for the officer making the ASD demand were the circumstances of the accident and an admission by the accused that she had consumed 2 glasses of wine before the accident.)

[34] When questioned by Constable Swallow at the police detachment, the accused said that she had been on the way to a friend's place for dinner. She said that she had consumed 2 glasses of wine before she left her house. She also was not aware of any mechanical problems with her car. She said that she had recently had the brakes done.

[35] Ms. Berner said that she did not know why she lost control of the car. She told

Constable Swallow that, "It was speeding up and it wouldn't, it wouldn't slow down." (Interview transcript line 68.) She said everything had happened quickly, describing the

R. v. Berner

Page

12

car's movements as follows: "It couldn't just go straight. It jus ... it was forcing me to go right and was forcing me to go reft." (Interview transcript line 38.)

[36] Ms. Berner was released from police custody on May 17. Charges were not sworn until 6 months later at the conclusion of a police undercover operation which targeted Ms. Berner. The object of the investigation was to try to obtain evidence of Ms. Berner's culpability in the collision. Two police officers pretending to be a couple interested in moving to Ladner struck up an acquaintance with Ms. Berner and the friend in whose house she was living. The relationship between the accused and the female officer soon blossomed into friendship.

[37] They met in late October 2008 and thereafter in 16 scenarios orchestrated by the police. They sometimes went out shopping, other times for dinner and drinks. They even went to a Madonna concert. Eventually, Ms. Berner confided to the undercover officer that she had been involved in a bad accident in which a child had been killed. Thereafter, the officer would try to have Ms. Berner discuss the details of the accident - including her drinking pattern on that day. The operation culminated in a meeting between them in a hotel room which had been set up to record this last conversation. What Berner thought was a conversation between friends was actually a very skilful interrogation conducted by the undercover officer.

[38] Ms. Berner was fairly consistent in her account of what she remembered about

the accident. She said that she may have been speeding, but not excessively when she hit the speed bump. All of a sudden she said, the car was going side to side, she could

R. v. Berner

Page

13

not slow it down. She believed that she may have mistakenly put her foot on the gas pedal instead of the brake pedal. She attributed this mistake to having a "panic attack."

[39] She told the undercover officer that she drank three glasses of wine before driving her car, not two as she had earlier told her. Ms. Berner said she had lied because she was embarrassed and did not want her friend to think less of her. Berner said that she felt fine before she drove, She said she had taken a shower; "it wakes you up," she said. She also said that she felt fine to drive. She indicated as well that it was a half hour to an hour after her last drink before she drove.

[401 Ms. Berner a/so told the officer that she usually slowed down almost to a stop when she drove over the speed bumps. In the course of the undercover operation the officer picked Berner up and dropped her off at her home on 36th Avenue. The route to and from the accused's residence usually involved driving on 64th Street past the scene of the accident Ms. Berner had lived there since May 2007 and therefore must have driven on 64th Street many times before May 17, 2008.

[41] Several times during the undercover operation the officer and Berner would have

drinks together. On several of those occasions Berner had at least three glasses of wine, sometimes more. The officer never observed any significant change in Berner's appearance, behaviour or physical capacity resulting from the consumption of those drinks.

R. v. Berner

Page

14

Expert Evidence

Mechanic

[42] Donald Kirkpatrick, a mechanic employed by the Corporation of Delta examined

Ms. Berner's car on May 21, 2008. He performed a thorough and methodical examination of the vehicle. He noted the severe damage that had resulted from the collision, namely: extensive damage to the right rear and passenger side; the rear window was "blown out"; the front windshield shattered; damage to the front bumper and grille. Mr. Kirkpatrick found that the brakes were in good condition. All four tires were the same size and make. The tread depth and pressure were adequate. He found no defect in or damage to the steering system.

(43] In cross-examination he agreed that he was not aware of recall notices that had been issued for the 2000 Intrigue regarding steering knuckles and the weld connecting the inner tube to the outer tube of the steering shaft. The recall notice indicated that if the knuckle broke there would be a loss of steering control and a possible crash. He said however, that he did not notice any sign that these parts of the steering mechanism had broken or failed.

Alcohol Expert

[44] Brian Image, a civilian member of the RCMP and a forensic alcohol specialist

testified that at 5:00 p.m. on May 17, Ms. Berner's blood alcohol level would have been between 63 and 117 milligrams of alcohol per 100 millilitres of blood. He could not

R. v. Berner

Page

15

provide an exact figure because people eliminate alcohol at different rates, most between 10 and 20 milligrams of alcohol per hour.

[45) Mr. Image said that every person's ability to drive is impaired at a blood/alcohol level of 100 mgs % or higher. He said that alcohol is a drug which affects the functioning of the brain and the central nervous system. It has a cumulative effect. That is, the more alcohol that a person consumes, the more serious are its effects. He categorized blood/alcohol levels into three zones. The Zone of Impairment; the Zone of Intoxication and the Zone of Death.

[46J The Zone of Impairment describes those persons whose blood/alcohol level is between 30 and 100 milligrams of alcohol per 100 millilitres of blood. The closer a person's blood alcohol level is to 100 mgs 0/0, the more probable it is that the person's ability to drive is impaired. Of course not everyone in this category is impaired. At this blood/alcohol level Mr. Image said that persons display few if any outward signs of being under the influence of alcohol. Alcohol can have "inward" effects on a person's ability to drive. In particular, he stressed that it could adversely affect the drivers comprehension, attention and judgment.

[47J The absence of symptoms of intoxication in persons within this category makes it difficult to determine whether their ability to drive is impaired. Mr. Image said that the issue could be determined by challenging the persons with scientific tests, for comprehension, or reaction time. This could be done, for example, by using a driving simulator.

R. v. Berner

Page

16

[48] The Zone of Intoxication includes those persons whose blood/alcohol level is between 100 and 300 mgs %. These persons will usually display the typical outward symptoms of intoxication such as slurred speech, staggering, and problems with fine or gross motor coordination. At higher levels in this "zone" persons may become comatose.

[49) The Zone of Death includes persons whose blood/alcohol level is above 300 mgs %. At this level or higher, the effect of alcohol is to shut down the central nervous system. The respiratory function may shut down, death ensues.

Engineer

[50J Steve Macinnis is a Professional Engineer who for the last 18 years has specialized in the investigation and reconstruction of motor vehicle accidents. Among his areas of expertise are: mechanical and vehicle engineering; accident and collision analysis and reconstruction; vehicle speed and impact speed analysis.

[51) He described the course of the accident as follows. Ms. Berner lost control of her

vehicle while travelling north on 64th. The vehicle travelled leftward across the centre line. The driver steered the vehicle aggressively rightward. The vehicle travelled back into the northbound lane but then the driver steered it leftward. This caused the car to rotate counter clockwise. The vehicle left the road still rotating but essentially travelling sideways across the gravel and grass. The right front corner of the Oldsmobile struck the right rear of the Honda, knocking it ahead about 30 metres. The Oldsmobile continued to rotate counter clockwise for a short distance until its right front door hit a power pole. The right rear of the car hit a guide wire that supported the pole. It came to

R. v. Berner

Page

17

rest close to the pole and the wire. The car struck the two victims sometime after it hit the Honda and before it hit the power po/e.

[52] Mr. Macinnis conceded that the Delta officer who had surveyed the scene and

made measurements in preparation for the analysis of the accident, had made an error. It appeared to Mr. Macinnis that the officer had used 2 different "0" or base points when he made his measurements. After rechecking the data, Mr. Macinnis concluded that the road measurements made by the officer were all correct. The scene measurements, such as the location of yaw marks, were wrong. Mr. Macinnis found that by rotating the scene measurements by 6.4" clockwise, everything was basically resolved.

[53) To determine the speed at which the accused was driving her vehicle Mr. Macinnis used three different approaches - crush analysis; accessing data from the Sensing Diagnostic Module removed from the Oldsmobile; calculation based on yaw marks. These different methods all came up with similar conclusions. That is, that Ms. Berner was likely travelling between 83 and 86 kilometres per hour at the point on the road when the first tire or "yaw" marks appear. Five seconds before the accident the vehicle was travelling at 91 kilometres per hour.

[54] Mr. Macinnis used crush energy analysis to estimate the speed by working

backwards from where the Oldsmobile came to rest to the point that tire yaw marks appear on the road. He estimated that the Oldsmobile struck the Honda at a speed between 48 to 67 kilometres per hour. The vehicle began decelerating once Ms. Berner steered the vehicle aggressively to the left. The total deceleration over the 53.5 metre distance that the vehicle travelled from the first yaw marks was added to the estimated

R. v. Berner

Page

18

collision speed with the Honda. The resulting estimate of the Oldsmobile's speed at the time it made the first tire marks was an average speed of 86 kmh.

[55] The Sensing Diagnostic Module (80M) is a device contained in some vehicles which records and captures certain data 5 seconds before the air bags are deployed - namely vehicle speed, engine speed and percent throttle. The police removed the device from the Oldsmobile a few days after the accident and eventually provided it to Mr. Macinnes. He accessed and printed out the data in the SDM.

[56] The data showed that Ms. Berner's vehicle was travelling at 91 kilometres per hour 5 seconds before the collision, and at 83.2 kilometres per hour at 2.6 seconds before. This is the point at which the yaw marks begin and thus is consistent with the speed estimate obtained by the crush analysis method. The SDM data also reveal that 5 seconds before collision the throttle was at 0, but in the last 2 seconds was at 100%, meaning the gas pedal was "floored," The brake switch circuit status was recorded as being off until one second before collision.

[57] Mr. Macinnis examined the measurements of the yaw marks as made by Ms.

Berner's vehicle during the first 17 meters of the marks. He calculated that the speed of the accused's vehicle at the start of the yaw marks was an average of 83 kmh.

[58] The distance from the end of the speed bumps to the start of the yaw marks was approximately 225 meters. If the vehicle was travelling at 90 kmh, it would have taken 9 seconds to travel this distance. It would have taken 2.6 seconds for the vehicle to travel from the start of the yaw marks to the point where it came to rest against the pole.

R. v. Berner

Page

19

[59] In cross-examination he agreed that it is always a good practice for him to

examine a vehicle which is the subject of an accident investigation. (The accused's vehicle had been sold for scrap by the time that he was retained by the Crown.) He said that he was unaware of the recall notices for the Intrigue. He indicated however, that in his opinion the steering system was in working order because the vehicle actually made the yaw marks. These are marks made by aggressive steering. He agreed that it could not be determined by the marks alone whether the power steering had failed. He said that any issue with the recall notice concerning the braking system was not relevant to the case at bar because any potential problem would only arise with heavy braking. There was no heavy braking in this case. He agreed that the Delta officer who did the initial scene measurements had made a fundamental error, but believed that he was able to identify it and to correct it. He noted that his calculation of speed using the yaw mark measurements was very close to the speed determined using crush analysis and by the speed recorded in the Sensing Diagnostic Module.

[60J Ms. Berner elected not to call evidence.

Analysis

[61] This whole tragic event occurred within twelve seconds. However, the duration was brief because the accused's car was going so fast. The Crown's evidence in that regard is overwhelming. At 5 seconds before the collision, Berner's vehicle was travelling at 91 kilometres an hour. It is highly probable that it was travelling at that speed or slightly higher when it hit the speed bumps. When she lost control, the vehicle's speed was between 83 and 86 kmh. I am satisfied that any error made by the

R. v. Berner

Page 20

Delta officer in making scene measurements was of no consequence. Mr. Macinnis was able to correct the error. In any event, two other reliable methods arrived at essentially the same speed determination as was achieved by calculations using the yaw mark measurements.

Dangerous Operation of Motor Vehicle

[62] As Ms. Berner drove north on 64th Street, she ignored or did not notice the sign that indicated that the speed limit was 50 kmh. She must have been aware of the speed limit because she had travelled that route many times. A speed of 91 kilometres an hour exceeds the speed limit by 80%. This is not a circumstance where a driver was a little absent minded and because the road was straight and clear of other traffic started to exceed the speed limit by 5 or 10 kmh. That is, travelling at this speed was not a minor lapse in attention.

[63] Next, Ms. Berner ignored or did not notice the sign that warned that speed bumps were ahead. She knew that the speed bumps were there. She told the undercover officer that she usually slowed almost to stop when she drove over them. Instead of slowing down, she maintained a speed of about 90 kmh. There is no doubt that hitting the bumps at that speed would be a particularly jarring experience for the driver. It seems most likely that Ms. Berner was not paying attention to her vehicle's speed or to the likely consequence of hitting the bumps at that speed. It is unlikely that she would do this deliberately.

[64] Despite the undoubtedly jarring experience of crossinq the speed bumps, Ms.

Berner did not react in the way one would expect. She did not slow down. She did not

R. v. Berner

Page 21

apply the brakes. About 9 seconds later her vehicle crossed the centre line. This was probably an effect of hitting the speed bumps at high speed. She then steered aggressively to the right and then aggressively back to the left, all in a vain attempt to keep the car from going off the road. When the car started spinning out of control, she likely intended to apply the brakes, but mistakenly floored the gas pedal instead. This had no effect on the car's speed, but it certainly did not serve to slow it down.

[65J Considering this driving conduct as a whole, I find that the manner in which the accused drove her vehicle constituted a marked departure from the standard of care to be expected of a driver in the accused's situation. She drove far in excess of the speed limit, failing to adjust her car's speed to safely cross the upcoming speed bumps. She then failed to do what the speed bumps were intended to force drivers to do - slow down. Continuing at this high speed, she failed to keep her vehicle in her lane and when she tried to get it back into the lane, she steered aggressively such that it went into yaw and spun out or control. When she finally attempted to apply the brakes, she hit the gas pedal instead.

[66] There is no evidence of the accused's state of mind which would raise a reasonable doubt that a reasonable person in her position would not be aware of the risk created by her driving conduct. Although there were safety recalls concerning the Intrigue, to suggest that there may have been a sudden mechanical breakdown in this case is pure conjecture. There was a competent and thorough mechanical examination which found none of the problems that the recalls referred to. Mr. Macinnis's evidence also effectively rebutted any suggestion of a sudden unexpected mechanical breakdown.

R. v. Berner

Page

22

(67] I have reached this conclusion on the issue of dangerous operation without considering the question of whether the accused's ability to drive was impaired by alcohol.

Impaired Operation of Motor Vehicle

[68J The focus of the "impaired operation" charge is on the accused's physical and mental state whereas the focus of the "dangerous operation" charge is almost exclusively on her actual driving conduct. Evidence of driving conduct may, however, in conjunction with other evidence, be used by a court to infer that a driver's ability to drive was impaired by alcohol.

[69J In the case at bar the relevant evidence concerning impairment consists of the

analyses of the breath tests, Mr. Image's evidence, the observations of Ms. Berner made by the witnesses who had contact with her, and the driving conduct.

[70] None of the witnesses observed Ms. Berner to have any symptoms consistent with her being under the influence of alcohol. Mr. Image indicated that a person whose blood alcohol level was less than 100 mgs % and more than 30 mgs % could be impaired but also might not be. Such a person would probably not display any obvious symptoms of intoxication. Ms. Berner's blood/alcohollevel could have been as low as 63 mgs %.

[71] The manner in which the accused drove her car on May 17 resulted from defective judgment, attention and reaction. It was poor judgment on her part to drive at a speed that she should have known was excessive, knowing that there was a

R. v. Berner

Page 23

significant obstacle on the road ahead - the speed bumps. She further exercised poor judgment in failing to do anything to slow the car down after it hit the speed bumps.

[72] Ms. Berner did not pay any attention to the signs that declared that the speed

limit was 50 kmh and that warned that speed bumps were ahead. She failed to pay attention to the speed bumps themselves, which were clearly visible and clearly marked with large white triangles. Instead she drove over them as if they were not there. She paid no attention to how fast she was driving.

[73] Despite hitting the speed bumps at high speed and no doubt feeling the sudden

impact, the accused did not react. She travelled ahead for about 9 seconds without doinq anything to slow down. When she finally did react by at least trying to hit the brakes, it was too late and she mistakenly put her foot on the gas pedal.

[74J The accused's perception and therefore memory of the event were also defective. This could be an effect of the consumption of alcohol. In her discussions with the undercover officer, where she seemed to be sincerely trying to give a full account of what happened, she had no idea of how fast she had driven her car. She merely said that she may have been speeding. She consistently said that the car would not slow down, indicating that she had not even perceived a need to do something herself to slow it down until well after she had hit and crossed over the speed bumps at high speed.

[75] What can explain this conduct? The accused is not required to explain anything.

Rather, the burden is on the Crown to prove that the only rational conclusion to be drawn from this evidence is that the accused's ability to drive was impaired by alcohol.

R. v. Berner

Page 24

(76] The accused had driven the same route many times. She knew the speed limit and knew that there were speed bumps, to which she usually reacted by slowing down. Thus, her driving on the date of the incident was significantly different from her usual conduct. There is no evidence that she was distracted from concentrating on her driving by stress or worry or by an urgent need to get to a particular location. She told Constable Swallow and the undercover officer that she was going to a friend's place for dinner.

[77] The vehicle was in good mechanical condition. I have already found that there was no basis in the evidence to conclude that there was any sudden mechanical failure. The road was in good condition. It was paved and straight, with no potholes or other obstructions except for the speed bumps. There was no other traffic on the road which could have affected the course of the Oldsmobile.

[78J While Ms. Berner did not display any outward symptoms of intoxication, I find that by her manner of driving she displayed, in Mr. Image's description, "inward" symptoms that her ability to drive was impaired by alcohol. That evidence, which I have described above, in conjunction with the evidence that the accused had at least 63 milligrams of alcohol in 100 millilitres of her blood and in conjunction with the expert's evidence that a person at this blood/alcohol level could be impaired, proves beyond a reasonable doubt that Ms. Berner's ability to drive was impaired by alcohol. There is no other rational conclusion that can be drawn from the evidence,

[79J There is no doubt that the accused's dangerous operation of her vehicle and operation while her ability to drive was impaired by alcohol were contributing causes

R. v. Berner

Page 25

beyond the "de minimis" range to the death of Alexa Middelaer and the bodily harm of

Daphne Middelaer.

[80] I find Ms. Bemer guilty on all four counts on the Information.

/~ L

The Haour~ble Judge P.O. Gulbransen Provincial Court of British Columbia