DEADLY INACTION

It wasn't so much what a drunked-up John Bernandino did -- which was
casually "pop" an Ecstasy pill into Nicole Malik's mouth as if he were
the candyman -- but it was what he didn't do that sent him off to
prison yesterday.

What the manager of the now-defunct Alpha Lounge internet cafe didn't
do was allow an ambulance to be called when the pretty 17-year-old
honours student burning midnight oil in his establishment suddenly
keeled over and began to convulse from what was clearly a drug overdose.

Instead, he sat back for hours and allowed Nicole Malik to slowly die
on a corner couch -- telling everyone mingling around that Bloor St.
W. cafe that he had seen such convulsions before, and that all would
end up well.

No ambulance, no cops, no problem.

There could have been two men in the prisoner's dock yesterday but
co-accused Paul Busch, the 19-year-old Alpha Lounge employee who had
been Malik's "boyfriend" for a week, became a Crown witness at
Bernandino's preliminary hearing in exchange for dropping the charge
of criminal negligence causing death that was also levelled against
him.

But it was Busch who gave Nicole Malik the second hit of Ecstasy,
paying Bernandino $20 for another blue Superman-crested pill from the
100-tablet stash he dished out like candy, and thereby leaving the
answer to the next question forensically inconclusive: Which pill killed
her?

After Bernandino pleaded guilty yesterday to criminal negligence
causing death in an agreed-upon scenario that would see him off to a
reformatory for two years less a day, and manslaughter charges
dropped, Crown prosecutor Calvin Barry read excerpts from victim
impact statements written by members of Nicole Malik's family --
particularly two aunts who eventually raised Nicole when her natural
mother, Donna Malik, gave her up to her aging grandparents 13 years
ago after plunging into substance abuse.

As one of her uncles told me back in November, "I often wonder if
Nicole tried those drugs (at the Alpha Lounge) to see what was so
special about them that a mother would choose them over her
four-year-old child."

That quote came on the eve of Donna Malik's funeral, a few days after
the 43-year-old woman was found dead in her bed in her west-end
apartment -- the victim of what police determined at the time was an
apparent overdose.

Today, the estranged mother and the ashes of her daughter lie buried
together at Assumption Cemetery.

Yesterday, as Superior Court Judge David Watt listened on, the
prosecution read out the expressions of loss that Nicole's two aunts
had put to paper.

"Nik didn't like to see homeless people on the street," wrote Roma
Toffan, Nicole's legal guardian at the time she left their home in Oro
Station to visit friends in Toronto ... left to never return. "She
wanted to bring them home to warm them up and, while they were having
a bath, I could make them some homemade soup. Nik said, 'They're down
on their luck, and need someone to give them another chance.'

"She thought that someone could be her."

Another aunt, Kim Tietz, who cared for Nicole between the ages of
seven and 15, wrote of "slumber parties and fundraiser weekends ... of
buying her first training bra ... of the Easters and Christmases" and
of telling young Nicole that her mother's 'addiction' was not because
of her."

It was written at the time of Nicole Malik's death that the Ecstasy
she took at the Alpha Lounge cafe was likely the first time she had
ever experimented with drugs. And there is no evidence to suggest the
contrary.

"Nicole knew how drugs could destroy a family," her aunt Roma had
said. "And she wasn't interested."

In sentencing Bernandino, Justice Watt began by calling him a
"30-year-old drug trafficker."

It was an apt description.

John Bernandino arrived at the internet cafe around 2 a.m. on the
morning of Dec. 1, 2001, responding to a call from one of his
employees that the rave drug, Ecstasy, would not be turned away if it
presented itself.

As the Crown described, he arrived "grossly impaired" and began
dishing out the pills, asking Nicole Malik to "open her mouth" so he
could "pop" one in.

"It was his drinking which contributed greatly to his tragic
decision-making," said Bruce Olmsted, Bernandino's defence counsel.
"It's a sad situation all around."

John Bernandino came to Canada from the Philippines when he was four.
He has a college diploma , has always had a job, and -- until now --
had absolutely no criminal record.

Nicole Malik began convulsing around 6 a.m. It lasted 15 minutes, and
then she slipped in and out of consciousness. At Bernandino's
insistence, no ambulance was called, and no one was called until 11
a.m. By then, Nicole Malik was already dead.