The Ladner woman convicted in the 2008 impaired driving death of a local four-year-old is taking her case to the country's highest court.
Earlier this month, Carol Berner applied for leave to appeal her conviction at the Supreme Court of Canada.
She is currently appealing her sentence in B.C. Court of Appeal and already had the appeal of her conviction dismissed.
Her lawyer was in B.C. Court of Appeal last Thursday morning asking that the appeal of her two-and-a-half-year jail sentence be adjourned pending the outcome of the Supreme Court decision.
Berner was convicted in July 2010 of impaired driving causing death, impaired driving causing bodily harm, dangerous driving causing death and dangerous driving causing bodily harm in the 2008 crash that killed four-year-old Alexa Middelaer and seriously injured her aunt, Daphne Johanson, in East Ladner.
Alexa and Johanson were feeding a horse in the 4300-block of 64th Street when a car, driven by Berner, plowed into them.
She was convicted and sentenced following a four-week trial in 2010. She has been out on bail for the majority of time since then, pending her appeals.
A new report, which Berner's lawyers plan to use as part of the Supreme Court appeal, suggests that improperly spaced speed bumps may have contributed to the crash.
At trial in 2010, the judge found that Berner was travelling at 91 kilometres per hour when she hit the two speed bumps on 64th Street and lost control of her car. He also found that while she was below the legal limit, Berner was in the "zone of impairment" at the time of the crash.
The engineer's report that will be introduced as new evidence in the appeal was prepared last July and filed as part of the civil case the Middelaer family filed against the Corporation of Delta and others.
In it, engineer H. Allen Swanson said that the two speed humps Berner drove over before the crash were installed in 2001 to slow traffic on busy 64th Street. Swanson said the humps are the proper length and dimensions required to comply with Transportation Association of Canada guidelines.
However, Swanson said the guidelines state pairs of speed humps should only be used when the desired speed is 30 km/h.
He concluded that the speed humps should have been 125 metres apart instead of 10 metres apart in order to slow vehicles to the desired speed of 50 km/h.
"The use of the two closely spaced speed humps on this 50 km/h urban street may have contributed to the driver's loss of control of the vehicle," Swanson wrote.
Defence lawyer Jason Tarnow called the report a new, important piece of evidence that offers a different explanation of how Berner lost control of her vehicle.
When asked what the new evidence means to the case in light of the trial judge's findings that Berner was speeding and impaired at the time of the crash, Tarnow said, the report must be considered in conjunction with the other evidence presented at trial.
"This could have affected the trial judge's findings and raised a reasonable doubt had it been properly before him," Tarnow said.
The Middelaer family could not be reached for comment.