ONTARIO
SUPERIOR COURT OF JUSTICE
MILTON COURT FILE NO.: 194/12
DATE: 20140123
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Maria MALIK
Defendant
A. Khoorshed, for the Crown
W. Thompson, for the Defendant/Appellant
HEARD: August 30, October 10, 2013 and January 22, 2014.
ENDORSEMENT ON SUMMARY CONVICTION APPEAL
Ricchetti, J.:
THE CHARGES
[1] On October 22, 2012, Ms. Malik pled guilty to impaired driving. She was sentenced.
THE APPLICATION
[2] Ms. Malik appeals her conviction raising two issues:
a) Her guilty plea was not voluntary; and
b) She received ineffective assistance of counsel.
[3] Evidence was filed and viva voce evidence was heard on this appeal. Ms. Malik, Mr. A. Hanif and Mr. S. Nicklakakos testified on this appeal.
THE FACTS
[4] On July 6, 2012 Ms. Malik was driving home. She was stopped by the police and charged with operating a motor vehicle with blood alcohol concentration greater than 80 mg/100 ml and operating a motor vehicle while impaired by alcohol.
[5] Ms. Malik sought out the assistance of Mr. A. Hanif who acts as agent in court proceedings. Mr. Hanif, on behalf of Ms. Malik, retained Mr. S. Nicklakakos, a lawyer.
[6] Mr. Hanif attended on August 13, 2012. Disclosure had been received by the defence. The disclosure includes a videotape – the significance of which is described below. Mr. Hanif provided the disclosure for Ms. Malik to review. I accept that Mr. Hanif asked Ms. Malik to review the Screening Report and Ms. Malik did so. She confirmed the accuracy of the information in the Screening Report. Ms. Malik was not asked to review the videotape evidence and Ms. Malik did not do so.
[7] Mr. Nickalakakos attended on August 27, 2012. He had not seen the disclosure. The matter was adjourned to September 24, 2012. On September 24, 2012 Ms. Malik did not attend and the matter was again adjourned to October 22, 2012.
[8] Ms. Malik testified that Mr. Hanif told her that she could avoid jail time if she pleaded guilty. She alleges he said she would lose if she didn’t plead guilty and would go to jail. I do not accept this evidence. It is in direct contradiction to the evidence of Mr. Hanif on this point, whose evidence on this point I accept. However, as set out below, this finding is not critical to the decision on this appeal.
[9] On October 22, 2012, Ms. Malik spoke to Mr. Nickolakakos for the first time. There was a telephone call prior to court. Mr. Nickolakakos advised Ms. Malik that he had reviewed the disclosure and that the case for the Crown was particularly strong.
[10] Mr. Nickolakakos met Ms. Malik at the courthouse. They spoke on several occasions. At some point she asked Mr. Nickolakakos whether she was going to jail. Mr. Nickolakakos told her that jail was not an option – she was not going to jail. He made it clear to Ms. Malik the she was not going to jail “on a plea or otherwise”. He again reviewed the disclosure with her including the details of the accident, the observations of the police, the admission by Ms. Malik to the police she had been drinking and the results of the breath samples. Ms. Malik agreed to plead guilty. A direction was prepared with respect to the guilty plea. Ms. Malik reviewed it and signed it.
[11] Ms. Malik and Mr. Nickolakakos went into court and Ms. Malik pleaded guilty. She was fined and her license was suspended.
[12] I accept Mr. Nickolakakos’ evidence that he told Ms. Malik she would not go to jail in any circumstance – whether or not she chose to plead guilty. As a result, whatever Mr. Hanif may or may not have said to Ms. Malik regarding jail, was of no moment since, prior to her decision to plead guilty, Ms. Malik fully understood that jail was not an outcome whether she pleaded guilty or not guilty.
[13] Returning to the meetings and discussions between Mr. Nickolakakos and Ms. Malik prior to the plea, Mr. Nickolakakos had in his possession the videotape evidence in the Crown disclosure. While the evidence before me is unclear as to whether Mr. Nickolakakos had previously looked at the videotaped evidence, the Crown conceded that Mr. Nickolakakos had not reviewed the videotape evidence prior to his discussions with Ms. Malik and Ms. Malik’s plea. What is clear from the evidence is that he never considered the videotape evidence or discussed the contents of the videotape evidence with Ms. Malik prior to the plea.
[14] After the plea, Ms. Malik had the file reviewed other counsel. Counsel reviewed the videotape evidence from the Crown disclosure.
[15] What is the videotape evidence? The videotape evidence has not been made part of this record. However, it is agreed that the videotape evidence was taken by the police while Ms. Malik was at the police station when arrested and it shows her using the bathroom. At one point, it shows Ms. Malik’s bare buttocks. There is no evidence before me why the police would be videotaping Ms. Malik when she went to the washroom.
ANALYSIS
Involuntary Plea
[16] The burden is on the appellant to establish, on a balance of probabilities, that the plea is invalid. The only basis upon which the appellant advances this argument is that it is submitted Ms. Malik pled guilty because she was told this would avoid a jail sentence. Having found that this was not the case and that it was clear to Ms. Malik before proceeded to plead guilty that she would not receive a jail sentence whether she pled guilty or was found guilty. I am satisfied the guilty plea was voluntary.
[17] As a result, this ground of appeal is dismissed.
Ineffective Assistance of Counsel
[18] The law regarding appeals where ineffective counsel is alleged is not in dispute. The law is summarized in R. v. Archer, 2005 36444 (ON CA), [2005] 202 C.C.C. (3d) 60 (Ont. C.A.) at paragraphs 118-120:
[118] It is helpful to begin with a summary of the applicable legal principles, none of which are in dispute. An accused who is represented at trial is entitled to effective representation by counsel. Ineffective representation may result in a miscarriage of justice necessitating the quashing of the conviction on appeal. Evidence relating to the alleged ineffective assistance of counsel will be received on appeal pursuant to s. 683(1) so that the appellate court may determine whether the representation was ineffective and ultimately whether it resulted in a miscarriage of justice: R. v. Joanisse 1995 3507 (Ont. C.A.), (1995), 102 C.C.C. (3d) 35 at 43-44, 56-58 (Ont. C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347; R. v. B.(L.C.) 1996 937 (Ont. C.A.), (1996), 104 C.C.C. (3d) 353 (Ont. C.A.).
[119] An appellant seeking to quash a conviction on the basis of ineffective assistance of counsel must demonstrate three things. First, where the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities. Second, the appellant must demonstrate that counsel’s acts or omissions amounted to incompetence. Incompetence is measured against a reasonableness standard. That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis must proceed upon a “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”: R. v. G.D.B. 2000 SCC 22, 2000 S.C.C. 22 (), (2000), 143 C.C.C. (3d) 289 at 298 (S.C.C.). As this court said in R. v. White 1997 2426 (ON CA), (1997), 114 C.C.C. (3d) 225 at 247:
An appellate court’s review of trial counsel’s performance should be deferential. … deference is called for because of the broad spectrum of professional judgment that might be considered reasonable. In most cases, even among the most skilled counsel, no two lawyers will defend an accused in the same way. Different defence counsel will use different trial strategies and tactics, different approaches to the examination and cross-examination of witnesses, different styles in opening and closing argument, all of them reasonable. The art of advocacy yields few, if any, absolute rules. It is a highly individualized art. What proves effective for one counsel may be ineffective for another. Most cases, therefore, offer defence counsel a wide scope for the exercise of reasonable skill and judgment. Appellate judges, many of them advocates in their own practices, should not be too quick to conclude that a trial lawyer’s performance was deficient because they would have conducted the defence differently.
[120] Third, the appellant must demonstrate that counsel’s ineffective representation caused a miscarriage of justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel’s ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict. A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different: G.D.B., supra, at pp. 298-99; Joanisse, supra, at pp. 62-64. The allegations of ineffective representation on this appeal do not go to the fairness of the trial process, but to the reliability of the result. The appellant says he was convicted because of the serious shortcomings in counsel’s representation of him.
[19] The essence of this issue on appeal is that the appellant submits Mr. Nickolakakos failed to review all of the Crown disclosure and, if he had done so, he could have considered and advised Ms. Malik about the alleged breach of her s. 8 Charter right to privacy or to seek a remedy for this breach such as a stay or exclusion of evidence.
[20] There is no dispute that the appellant has established Mr. Nickolakakos did not review the videotape evidence, provide any advice with respect to the videotape evidence or consider whether there was a Charter breach or what remedies might be available for such a breach in the circumstances of the case. The first part of the test has been established by the appellant.
[21] There is a presumption that counsel’s assistance to an accused was within the range of competence. At times, there may be tactical reasons for decisions. Decisions should not be reviewed from the perspective of hindsight. There may be many reasons for decisions made during the representation of a client and will likely vary from counsel to counsel. As a result, the applicable standard against which incompetence is measured is reasonableness.
[22] Disclosure is fundamental to counsel’s ability to properly advise and represent an accused. It is expected and it is reasonable that counsel would review all the Crown disclosure before providing any advice to an accused as to whether to plead guilty or not.
[23] Turning now to what occurred in this case. Mr. Nickolakakos advised Ms. Malik that there were “no strong triable issues” which stood out to him. However, he did so without reviewing all the disclosure. In this case, there was no judgment applied by counsel to the impact if any of the videotape evidence or its possible consequences including any possible Charter breach because counsel, while having the videotape evidence, failed to review the videotape or consider the evidence and its possible legal implications. Despite this, counsel advised Ms. Malik that the Crown was likely to succeed on the charges. This failure by counsel amounts to conduct which fell below the standard expected of defence counsel when representing an accused. The second part of the test has been established by the appellant.
[24] Has the appellant established that there has been a miscarriage of justice? Here the issue is whether the verdict is unreliable because there is a reasonable possibility that the verdict “could” have been different, had the videotaped evidence been reviewed and legal advice given.
[25] The appellant points to the trial judge’s decision in R. v. Mok, 2012 ONCJ 291, [2012] O. J. No. 2117 (Ont. C. J), R. v. King, [2012] O.J. No. 2574 (Ont. C. J.) and R. v. Chasovskikh, [2012] O.J. No. 16 (Ont. C. J.). In Mok (at trial) and Chasovskikh, stays were granted. In King a stay was not granted but the court was critical of the police conduct and gave the police an opportunity to change their practice.
[26] Mok was appealed to the Superior Court of Justice. On January 7, 2014 Justice Boswell set aside the stay granted at trial and ordered the matter back for a new trial. What is important to note is that in Mok, there was a significant amount of evidence regarding the videotaping of detainees in washrooms including how and why such videotaping took place in washrooms at a police station. Given the evidence in that case, Justice Boswell agreed with the trial judge and found that the accused’s Charter rights had been violated. However, Justice Boswell went on to find that a stay was not warranted in the circumstances of the appeal before him.
[27] In R. v. Deveau, 2013 ONCJ 644, in similar circumstances to this case, the court declined to order a stay but, instead, excluded the evidence of the Intoxylzer as the videotaping had been taken at the police station place during the taking of the breath samples.
[28] Returning to the Mok case on appeal, it does not appear that Justice Boswell considered whether there was some other Charter remedy, short of a stay, such as the exclusion of evidence under s. 24 of the Charter as was decided in Deveau.
[29] In the case before me, there is no evidence as to how or why videotaping of detainees was done in the toilets. There is no evidence Ms. Malik was a safety risk, might dispose of drugs or have a weapon. Whether this occurred in all the toilets at the police station. Whether she told there were video cameras in the washroom area is unknown. Even questions of where and when the videotaping took place are not before me. There is simply not enough evidence before me to reasonably consider whether there was a breach of Ms. Malik’s Charter rights and, if so, what the appropriate remedy would be. These are all matters which could have been addressed by counsel if he had reviewed the videotape evidence and considered the issue. Perhaps additional disclosure was warranted. Perhaps some other consensual disposition of the case was more appropriate. There could have been a number of other outcomes to this prosecution.
[30] But, as a result of counsel’s failure to review or consider the videotape evidence, there was no consideration at all of whether there was a breach of Ms. Malik’s Charter rights and, if so, what the appropriate remedy might be in the circumstances of this case – a stay, the exclusion of evidence or no remedy.
[31] On the third factor, the appellant has to establish that, had Mr. Nickolakakos had met the reasonableness standard of conduct expected of a counsel in the circumstances, it could have made a difference. Given the evidentiary record before me, the answer is yes it could have made a difference. As a result, I am satisfied there was a miscarriage of justice.
[32] The guilty plea is set aside. In accordance with the agreement of counsel, Ms. Malik is remanded to Monday, February 17, 2014 at 9:00 a.m. court in Milton, to set a date in this matter.
Ricchetti. J.
Released: January 23, 2014
MILTON COURT FILE NO.: 194/12
DATE: 20140123
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Maria MALIK
ENDORSEMENT ON SUMMARY CONVICTION APPEAL
Ricchetti J.
Released: January 23, 2014