Carol Berner makes her way into Surrey provincial court to hear the verdict against her.JOHN LEHMANN
While visiting a pub one day in October, 2008, Carol Berner bumped into a divorced woman and the two became close friends.
Ms. Berner, a 57-year-old Delta resident, had a lot on her mind. She was under police investigation because she had been at the wheel of her Oldsmobile months earlier when, en route to a friend's house for dinner, she struck four-year-old Alexa Middelaer and the child's aunt. The two were standing by the side of a road in Delta, admiring a horse Alexa loved. Alexa was killed and her aunt suffered serious injuries.
With her new friend, Ms. Berner went shopping and out for dinner and drinks. One time, they even went to a Madonna concert.
Little did Ms. Berner know that her trusted friend was an undercover police operative - part of a major effort to gather evidence against her. Police in B.C. have often used such methods to target homicide suspects, but the three-month operation against a suspect such as Ms. Berner was unprecedented in the province.
"It's not common to see an undercover operation in a case of this nature," said Neil MacKenzie, a spokesman for the B.C. Crown. But he noted that police make the decisions about how to best investigate cases, gathering evidence to present to the Crown.
And in the case of the Berner file, police in Delta, a district municipality south of Richmond, saw the Middelaer case as a necessary exception.
"Given the level and seriousness and gravity of the consequences of this situation - the death of a four-year-old little girl and serious injury to the extended family - [it]was an option that was available to us within the provision of the law and we took it," Sergeant Sharlene Brooks of the Delta police told reporters Monday.
"We needed to determine the level [and] if any, culpability of Ms. Berner."
Evidence gathered by the undercover operation - codenamed Project Angel - helped persuade Provincial Court Judge Peder Gulbransen on Tuesday to convict Ms. Berner of four counts of impaired and dangerous driving causing Alexa's death and injuries to her aunt. Ms. Berner had pleaded not guilty.
Ms. Berner told her new friend about the accident, her feelings of guilt, and how much she had been drinking before the accident. At one point, the friend invited Ms. Berner to a Surrey hotel where they chatted about the accident with another woman - also on operative, posing as an interior decorator from Prince George - before they all went to dinner.
"What Berner thought was a conversation between friends was actually a very skillful interrogation conducted by an undercover officer," Judge Gulbransen told a courtroom Tuesday packed with Alexa's parents, grandparents, friends and supporters of the Middelaer family, as well as supporters of Ms. Berner.
He noted that Ms. Berner told the undercover officer about being involved in a "bad accident" where a child was killed.
"Thereafter, the officer would try to have Ms. Berner discuss the details of the accident, including her drinking pattern that day."
Among other things, said the judge, Ms. Berner confided she may have been speeding at the time of the accident, that she might have put her foot on the gas pedal instead of the brake, and that Ms. Berner, who failed a breath test at the scene of the crash, lied at the scene about the number of glasses of wine she had before the accident. She said two. It was three.
In December, 2008, Ms. Berner was driving with her "friend" to North Vancouver when they were pulled over, and Ms. Berner was arrested. The officer, whose name was protected by a publication ban, testified at Ms. Berner's trial.
Ms. Berner may have thought of each encounter with her friend as milestones in a relationship. To the Delta Police Department, each of the 16 meetings over three months were what Judge Gulbransen called "scenarios" orchestrated to build a case against Ms. Berner.
Ms. Berner has said nothing publicly about whether she feels betrayed. On Tuesday, her lawyer spoke for her.
"This was a case of impaired driving. In my respectful view, it really isn't the kind of case where that kind of tactic should be used," David Tarnow told reporters.
Delta police signed off on the tactic, but the officers involved were from a provincial investigation unit called the B.C. Municipal Undercover Program. Sgt. Brooks said the cost of the undercover operation has not yet been broken out of the total investigation cost of more than $100,000.
However, she noted, in an interview, that police were reluctant to talk about such costs.
Alexa's parents, who have become prominent B.C. activists in a bid to cut the number of fatalities in the province related to impaired driving, are satisfied with the police effort.
"I think it was extremely innovative," said Michael Middelaer, standing by his wife, Laurel, after the verdict was handed down.
"Obviously you don't see that type of investigation in most impaired driving cases, but I think police were inspired. They understood that what happened shouldn't have happened.
"They saw this as an opportunity to sort of reset the bar in terms of what they are capable of."
Ms. Berner, who said mechanical failure caused her to lose control of the car, faces a sentencing hearing in November. Crown Winston Sayson, outside court, said the maximum sentence for impaired driving causing death is life, and that dangerous driving causing death carries a 14-year sentence. He otherwise declined comment on his sentencing goals.
Ms. Berner's lawyer said his client was "quite upset" at the outcome "but we'll move on to the next phase," referring to the sentencing hearing.
Mr. Tarnow said he would seek a non-custodial sentence, noting Ms. Berner has had no previous brushes with the criminal-justice system.
Read Judge Gulbransen's Reasons for Judgement in the Carol Berner case