Judge raps lawyer for not considering toilet video evidence

An alleged impaired driver has won a retrial after her lawyer failed to consider whether her Charter rights were violated by a video taken while she was going to the toilet.

The case reflects a “spate” of cases dealing with the privacy of people in custody, according to the appellant’s new counsel.

In R. v. Malik, the appellant’s former lawyer, Spiro Nicolakakos, was found to have given insufficient attention to police video evidence showing his client Maria Malik using the washroom, with her “bare buttocks” visible.

Nicolakakos had advised Malik there were “no strong triable issues” that stood out to him, according to a Jan. 23, decision by Ontario Superior Court Justice Leonard Ricchetti.

Malik pleaded guilty and was sentenced to a one-year driving ban and a $1,200 fine. This was a miscarriage of justice, according to Ricchetti.

He wrote: “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, Malik was advised 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,” wrote Ricchetti. He set aside Malik’s guilty plea.

Nicolakakos says he did review the videotape, but did not attach much weight to it.

“I admit I didn’t put [the video] to the client when we were speaking about her resolution and her desire to resolve,” he says. “That’s not to say I purposefully left it out.”

“An argument could’ve been made, and I should’ve given it more weight in my mind,” he concedes.

However, there were several factors influencing Malik’s decision to resolve the case, Nicolakakos adds.

“Speaking to other lawyers, they believe [the video] probably wouldn’t have made a difference [to the verdict],” he states.

Addario Law Group counsel William Thompson, who represented Malik in the appeal, took the position that Nicolakakos reviewed the video, but did not realize its legal significance.

He says Malik will have the opportunity at a retrial to raise issues related to s. 8 of the Canadian Charter of Rights and Freedoms.

The case shows the need for defence counsel to fully consider police video evidence, and for privacy screens to be constructed in front of cell toilets, he believes.

Not all police forces film people using the washroom, he says, adding: “I don’t know how widespread the practice is, but certainly there’s a spate of cases that have identified real privacy concerns of people detained by police.”

These include R. v. Mok, in which an Ontario woman arrested and detained for drunk driving was filmed using the toilet in her cell. A Jan. 7 decision found Stephanie Mok had suffered a “degrading” violation of privacy, but not to the extent that proceedings should be stayed.

Other cases include R. v. Chasovskikh, R. v. King, and R. v. Deveau. In the latter case, the court excluded evidence as a result of the videotaping.

Thompson says a stay of proceedings is not out of the question for Malik.

The case highlights the need for criminal defence lawyers to have an ongoing relationship with clients, starting well before a trial hearing, he adds.

Nicolakakos has not been subject to any Law Society of Upper Canada proceedings.

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