Form 1

CA038579
[am. B.C. Reg. 176/91, s. 12.]

[Paragraph 3 (1) (a) and subrule 5 (1)]

NOTICE OF APPEAL OR APPLICATION

FOR LEAVE TO APPEAL

(Where notice is filed by a solicitor on behalf of the appellant)

Lower Court Registry Number: 171252-1

Lower Court Registry Location: Surrey Provincial Court

COURT OF APPEAL

REGINA

Respondent

VS.

CAROL-ANN BERNER

Appellant

PARTICULARS OF CONVICTION

1 Place of conviction: Provincial Court of British Columbia at Surrey

2 Name of Judge: His Honour Judge P. Gulbransen

3 Offence(s) of which appellant convicted:

• Dangerous driving causing death

• Dangerous driving causing bodily harm
• Impaired driving causing death
• Impaired driving causing bodily harm

4 Section of Criminal Code or other Act under which appellant convicted was:
Section 249(3), section 249(4), section 255(2), and section 255(3) of the
Criminal Code.
5 Plea at trial: Not Guilty

6 Whether or not jury trial: Judge alone

7 Length of trial: 4 weeks

8 Sentence imposed: 2.5 years

9 Date of conviction: July 27, 2010

10 Date of sentence: November 12, 2010

11 If appellant in custody, place of incarceration: Surrey Pre-Trial

TAKE NOTICE that the appellant:

(a) appeals against her conviction upon grounds involving question of law alone.

(b) applies for leave to appeal her conviction upon grounds involving a question
of fact alone or a question of mixed law and fact, and if leave be granted
hereby appeals against the conviction.

(c) applies for leave to appeal against sentence, and if leave be granted hereby
appeals against the sentence.

The grounds for appeal of conviction are:

1. The learned Trial Judge erred in law in ruling that the Appellant was not
arbitrarily detained, contrary to sections 7 and 9 of the Charter of Rights and
Freedoms, when she was held in a police vehicle for 30 minutes by Delta
Police;

2. that the learned Trial Judge erred in law in ruling that statements the
Appellant made to Delta Police were admissible as her rights, pursuant to the
Charter of Rights and Freedoms were violated when she was questioned by
Delta Police after being detained in the police vehicle for 30 minutes, such
questioning taking place without any "warnings" regarding her rights to
retain and instruct counsel;

3. that the learned Trial Judge erred in law in ruling that the attending Delta
Police officer had reasonable grounds to make a demand that the Appellant
provide a breath sample into an Approved Screening Device;
 4. that the learned Trial Judge erred in law in ruling that the Appellant's right to
make full answer and defence pursuant to Section 7 of the Charter of Rights
and Freedoms were not infringed when the Appellant was not able to obtain
an independent inspection of her motor vehicle when her counsel requested
it after she was charged, as Police had allowed the motor vehicle to be
destroyed and sold for parts before the Appellant had been charged;

5. that the learned Trial Judge erred in law in ruling that the Appellant's right to
make full answer and defence pursuant to Section 7 of the Charter of Rights
and Freedoms were not infringed when the Appellant was not able to cross-
examine Cst. Shane Parker of the Delta Police, the traffic analyst, regarding
his erroneous measurements at the accident scene, as he claimed to be
unable to testify, yet was still on active duty with the Delta Police;

6. that the learned Trial Judge erred in law in accepting the testimony of the
expert witness, Steve MacInnis, whose evidence was based on the road
measurements of the Delta Police Officer, Shane Parker, who refused to give
evidence at the trial and whose measurements were in error and were the
basis of the expert witness's testimony;

7. that the learned Trial Judge erred in law in finding the Appellant guilty of
"Impaired Driving" (counts 1 and 3 of the Information) based on the
evidence presented by the Crown which included the lack of evidence of
indicia of impairment at the scene of the accident from approximately 15
Civilians, 2 very experienced ambulance attendants and several attending
police officers;

The relief sought is:

1. An Acquittal;
2. A Judicial Stay of Proceedings;
3. New Trial.

The grounds for Appeal for Sentence are:

1. The learned trial judge erred in law by allowing the Crown to present Victim
Impact Statements which included a multimedia presentation and pictorial
essays regarding the victims.
2. That the Sentence was excessive in all the circumstances.
The relief sought is:

1. A reduction in the Sentence to a Suspended Sentence and a term of

Probation.

The appellant's address for service is:

Tarnow & Company

#210 - 7480 Westminster Hwy

Richmond, B.C. V6X 1A1

~
Dated this ..l ~ .. day of .I.Y.'i!:!.fHf3B~;.. '" 2010

.q;~ . t.. .~~. .

David C. Tarnow - Solicitor on behalf of appellant

To the Registrar