R. v. Calleja, Bowman, Coniglione

Court Information

Ontario Court of Justice

Before: His Honour Justice M. Block

Date: April 11, 2012 at Barrie, Ontario

Parties and Counsel

Crown: R. Flummerfelt, Counsel for the Provincial Crown

Defence:

• D. Butt, Counsel for K. Calleja
• P. Brauti, Counsel for N. Bowman
• L. Kinahan, Counsel for M. Coniglione

Heard: Wednesday, April 11, 2012

Charges

Section 267(b) C.C.C. – Assault Cause Bodily Harm

Reasons for Judgment

Introduction

On July 5, 2009, the three defendants, constables in the Barrie Police Service, attended the home of Michael Ullman at 157 Esther Drive, in the City of Barrie, in response to a 911 call placed by Mr. Ullman's sister, Cornelia Ullman. Ms. Ullman alleged that her brother had assaulted her and broken her radio. When the three defendants, each the sole occupant of his cruiser, attended they found Ms. Ullman outside her brother's home. A brief statement was taken from Ms. Ullman which gave the police reasonable and probable grounds to believe that the offences of assault and mischief had been committed. The three defendants then entered the home and arrested Mr. Ullman without warrant. In the course of that arrest, Mr. Ullman suffered a broken arm. The above facts are uncontroversial as is the fact that the three accused police officers acted in concert throughout the incident.

Issues Before the Court

The Crown alleges that the three defendants had no permission to enter the Ullman home; that no exigent circumstances existed to justify the warrantless entry; and that an unreasonable amount of force was used to affect Mr. Ullman's arrest. These are the issues that lie at the heart of the charge of assault causing bodily harm. The criminal standard requires that the Crown prove beyond a reasonable doubt that the defendants were not invited into the Ullman residence or that they had no genuine belief in the existence of exigent circumstances for uninvited entry. If the Crown meets this burden the defendants will face conviction. If the Crown fails to prove unlawful entry, the Court must consider the degree of force applied to Mr. Ullman. If the Crown proves beyond a reasonable doubt that an unreasonable amount of force was used to subdue him, the defendants will face conviction.

Evidence

Background: The Family Dispute

The origin of that day's events lies in a poisonous family situation. Mr. Ullman and his sister long had a relationship of discord. One of the first witnesses called by the Crown was Mr. Milenti Cofan. A long-time friend or acquaintance of both Mr. Ullman and his sister, Mr. Cofan was familiar with their argumentative relationship. He shared Romanian heritage with the family. Mr. Cofan testified that he had been staying at Mr. Ullman's home for one week prior to the July 5, 2009 incident. He was present when Ms. Cornelia Ullman arrived unexpected and uninvited the evening before. He witnessed much to suggest that Cornelia Ullman was a toxic presence in the household but that Mr. Ullman was doing his best to act with civility.

The following morning, Ms. Ullman contrived a dispute over a radio she alleged was her property and that had been played the evening before and was subsequently hidden by Mr. Ullman's wife. According to the story told by Mr. Cofan, Mr. Ullman had quite enough. He became agitated and deliberately smashed the radio on the floor of the patio. Intense argument ensued and then, to the relief of both men, Cornelia Ullman left the premises.

After an interval of several hours during which the two men relaxed by playing backgammon on the rear patio, Cornelia Ullman unexpectedly returned. She was asked to leave repeatedly. She sat in the patio chair and generated more argument. She talked nonsense. She swore at Mr. Ullman. He was, initially, low key in his response and asked her repeatedly to leave the house in a calm manner. Ultimately, he struck her on the head while trying to lift her out of the chair by her arm. Mr. Cofan did not know whether Mr. Ullman used a closed fist or an open hand. Cornelia Ullman then attempted to use the phone with the expressed intention of calling 911 but Mr. Ullman threw the phone on the floor and the battery fell out. She then menaced Mr. Ullman with a bottle until she was escorted out of the house by Mr. Cofan. He agreed that he intervened because the situation was out of control. He saw Cornelia use her cell phone on her way off the property.

The two men went back to playing backgammon on the backyard patio. They discussed possible police attendance. Mr. Cofan didn't remember any discussion about what should be done in that circumstance but did recall that Mr. Ullman said he would be very embarrassed in front of his neighbours if the police attended.

In Mr. Cofan's recollection, ten minutes later there was a knock at the front door. The household dogs set to barking and Mr. Ullman walked through the house to respond. A very short time later, Mr. Cofan could hear the sounds of pushing and shoving coming from the front of the house. He left the rear patio and attended the front door area. There he found Mr. Ullman struggling with the three defendants. Mr. Ullman was kneeling. One officer was on his left side, another on his right. Another officer, whom he identified as Mr. Calleja but was almost certainly Mr. Coniglione, stood behind Mr. Ullman and punched him in the back ribs several times. The three officers then handcuffed Mr. Ullman and removed him from the house. No officer struck Mr. Ullman after they had succeeded in handcuffing him.

Mr. Cofan twice used the phrase "lifted him up from the handcuffs" when describing what the police officers did after the handcuffs went on and before Mr. Ullman was removed from the house. It seems probable that Mr. Cofan meant that the police lifted Mr. Ullman off the floor by his handcuffs. No clarification of this awkward statement was sought by any counsel. It is likely the result of the witness giving testimony in a second language.

Mr. Cofan's perception of the arrest must also be considered with a view to the limited time he had to view this rapid moving event. The struggle heard by Mr. Cofan before he reached the front foyer took less than 30 seconds. The struggle observed by Mr. Cofan took a matter of seconds. He agreed under cross-examination that it was hard to tell which officer was which during the brief portion of the melee he saw. He witnessed the struggle from a distance of about 12 feet. He was very upset and completely shocked by what he had seen.

Mr. Cofan said the police said nothing as they were subduing Mr. Ullman. When Mr. Ullman saw him watching the end of the struggle, he said, "Titi, please look very carefully". "Titi" was Mr. Cofan's nickname among his friends.

Within a few minutes of the arrest, a brief statement of Mr. Cofan was taken by Mr. Calleja. A few hours later, Mr. Bowman returned to take a witness statement. At that time, Mr. Cofan was discussing the events with a neighbour, Mr. Charles Tonna. He heard Mr. Bowman call out, "Is anyone here?" or words of that sort between the Tonna Home and the Ullman home. Mr. Cofan realized that the officer was looking for him. He gave a statement to Mr. Bowman in his cruiser. He spent the night at the Ullman residence. No police officer entered the Ullman home while he was there.

I found Mr. Cofan to be a straight-forward witness with no apparent bias. He did not observe much of the struggle between Mr. Ullman and the police and appeared to be candid about the limitations of his perception of the portions of the struggle he did observe. He was sympathetic towards Mr. Ullman's difficulties in dealing with his sister. He clearly under-estimated the gap between Cornelia Ullman's departure and the arrival of the police. Not a significant failure in my estimation.

Evidence of Michael Ullman

Michael Ullman gave evidence. He was 61 at the time of these events. He presented as a large robust man although the court heard evidence establishing that he had retired as an engineer due to a serious back injury received at work and had several fused vertebrae. As a result, he has had lingering issues of pain and mobility limitations. During the trial it became evident that he walked stiffly and sat in the witness box with discomfort. He has no criminal record.

In examination-in-chief, Mr. Ullman confirmed Mr. Cofan's description of an initially pleasant weekend beginning Friday, July 3, 2009. The two men anticipated fishing on the coming Sunday. He said that Mr. Cofan's visit was for one day, not the week stated by Mr. Cofan. He stated that Mr. Cofan had been Cornelia's live-in boyfriend for some time, a suggestion specifically denied in the evidence of Mr. Cofan. He appeared to suggest a more distant, albeit friendly, relationship between the two men than did Mr. Cofan.

The character of the weekend took a turn with Cornelia Ullman's unexpected visit on the afternoon of that Saturday. Mr. Ullman gave an account of her hostile, manipulative and provocative conduct during her unpleasant stay consistent with that of Mr. Cofan until the events of that Sunday morning. She was highly critical of the wine at night and the breakfast in the morning. She was a demanding guest. When asked to leave repeatedly she said, "I will leave when I want to leave you fucking asshole idiot". He emphatically denied that he deliberately smashed a radio or that he struck Cornelia Ullman on the head. He told the court that he simply attempted to throw an already in-operative radio in a waste receptacle and missed. She menaced him with a beer bottle and said "I could kill you now you fucking asshole idiot". He said that he grabbed her by the upper arm to remove her from the premises after she repeatedly refused his request to leave and that was the extent of the force he applied to her.

Mr. Ullman stated that Cornelia tried to involve Mr. Tonna by calling on him to call 911 over the backyard fence as she was leaving. On her departure, he said to Mr. Cofan, "I can't believe she is going to call 911". The two men then played several games of backgammon. When the doorbell rang next, Mr. Ullman said he thought his sister was returning yet again. He said Mr. Cofan expressed the same thought by way of an exclamation. He opened the front door six to eight inches wide in order to keep his dogs from escaping and encountered three Barrie Police Service officers.

Mr. Ullman described the following dialogue at the door:

"Officer: Are you Michael Ullman?

Mr. Ullman: Yes.

Officer: Do you know Cornelia Ullman?

Mr. Ullman: Yes."

At this point, he said, a police officer pushed the door and all three officers entered the home without invitation. Mr. Ullman named the officer who pushed the door open as Mr. Coniglione but then pointed out Mr. Calleja amongst the three defendants in court. The following exchange then took place in the foyer:

"Mr. Ullman: Excuse me, I haven't done anything. Do you have a warrant to come into the house?

Mr. Bowman: Do you want a warrant you fucking woman-beater?"

He then described being punched by Mr. Bowman, once on the left side of his face and once on the forehead. He stated that he was next punched at the base of the skull and dropped to his knees. After he fell down, he was punched and kicked multiple times by all three officers. During the beating, Mr. Ullman saw Mr. Cofan approach the foyer. He called to him "Titi, watch what they are doing". Immediately, the officers stopped beating him and yelled, "Stop resisting arrest, stop resisting arrest". Mr. Ullman said that he was not resisting arrest and was on his knees.

The handcuffs were then applied to his wrists. They were very tight and Mr. Ullman complained.

One officer responded, "Shut the fuck up, you fucking asshole" three times. Mr. Ullman stated that he was in a lot of pain from his arm as he was being handcuffed. He told the officers he could not get up. He was pulled to a standing position. One officer said, "Get up you fucking asshole" twice. He believed he was going to be killed.

Mr. Ullman was removed from the house. He told the court that at the bottom of the front stairs he was kneed in the left side of the face by an officer identified in court as Mr. Coniglione. He recalls a lot of people standing around outside at this time. He had a great deal of difficulty walking. He said that the officer held him by the handcuffs and twisted them in a form of torture. He stated that he was taken to the cruiser of the officer who kneed him in the face. The officer said, "Get, get in the back you fucking asshole" and kicked him in the right ankle when he told him he was unable to sit in the small backseat of the cruiser. The officer repeated, "Get in the – get inside you fucking asshole. I'm not going to tell you again". Mr. Ullman told the court he was then punched in the mouth. He exerted great effort to pull himself inside the cruiser and the officer slammed the door, narrowly missing his leg.

According to Mr. Ullman, two officers were in the cruiser that took him to the Barrie Police station. They asked him a number of questions: "How long have you been in this country?", "Are you renting this house?" to which he refused to reply. He described the two officers having an extended conversation outside the cruiser on arrival at the station.

The same two officers drove Mr. Ullman to the Royal Victoria Hospital on the instructions of Staff Sergeant Anglin. At the hospital, he stated he heard a conversation between Mr. Coniglione and a nurse, subsequently identified as Ms. Kimberley Sweeney. He was aware that the nurse was married to a Barrie Police Service officer because there was a stabbing of an officer that day and he overheard Nurse Sweeney tell the officer that she had made many phone calls to see if her husband was unharmed. Mr. Ullman alleged that Mr. Coniglione asked Nurse Sweeney not to have an x-ray taken of Mr. Ullman's leg.

Mr. Ullman told the court that he then told the officer, "You're on candid camera" or words to that effect. He said he did that because he wanted the officer to believe that the arrest had been videotaped. He told the court the officer "went white", looked significantly at the other officer who was present and went around the corner to use his cell phone or walkie talkie. He then told someone to "go and check if there's an eye". When Mr. Ullman returned home the next morning, a fire detection unit in the front hallway had been partially dismantled and was hanging down by a wire. A photograph of this unit in that state was entered as Exhibit 2 at trial.

Mr. Ullman described various injuries he received during the arrest. Exhibit 3 at trial is a series of photographs depicting those injuries. They include: a mark on his right wrist, a mark in front of his right ear, an abrasion to his forehead, an abrasion to his right cheek, a bruise to his right arm, a small abrasion to his right shoulder, a mark to the lower left back, an injury to the left side of the tongue, a mark to lower right leg, a scrape to the left knee, a small mark to the back of the left arm and marks and swelling to left hand and wrist.

Mr. Ullman was cross-examined at great length. It emerged that a dispute between Ms. Cornelia Ullman and Mr. Ullman over the disposition of inherited property in Bucharest was a current issue and the source of great hostility between the two at the time of these events. In an undated letter to Justice Douglas, filed as Exhibit 14 in this proceeding, it was clear that his sister's alleged central role in this matter held great importance to Mr. Ullman in the post-charge and pre-trial period. It was the court's impression that Mr. Ullman sought to downplay his pre-occupation with these matters at the time of the incident. In argument over the relevance of this evidence, counsel for the defence suggested that Mr. Ullman may have acted out towards the three defendants because they are unwilling to hear his side of the family dispute.

During cross-examination by Mr. Brauti, Mr. Ullman confirmed that he was both very embarrassed by the dispute and that he intended to tell his side of the story to the police:

"Question: Is what you were going to do is that you were going to explain to the officers what happened and that would be the end of it, correct?

Answer: Yes.

Question: All right. And that's because you wanted them to know your side of the story.

Answer: Yes.

Question: Now you were already very, very embarrassed in relation to this with your neighbours, correct?

Answer: Yes."

And then following:

"Question: Well, I take it if you had your choice you would have liked to have kept this matter more private?

Answer: Oh, absolutely.

Question: Right. And that's why you certainly didn't want to have a discussion with these officers out in public, correct? You wanted to deal with it privately.

Answer: No sir....

Question: So what you're saying is if the officers had waited long enough they would have been invited in?

Answer: Yes."

In re-examination, Mr. Ullman was asked if he would have invited police in his home without a warrant if he knew they had already made up their minds to arrest him. This was his response: "I really don't know, like, it's just – I – at that time I thought that the incident could've been resolved at the door."

Mr. Ullman emphatically denied either deliberately breaking a radio or striking Ms. Ullman's head. He expressed surprise that Mr. Cofan testified otherwise. He then appeared to minimize his association with Mr. Cofan. He told Mr. Kinahan that Mr. Cofan was not a friend but an acquaintance. His attention was drawn to several previous statements alleged to contradict his present evidence. He had written, in notes compiled a few days after the incident, that Mr. Cofan was a friend who would corroborate his account. He told Mr. Brauti that his sister had said "I hope you're going to make a good witness" to Mr. Cofan outside the house as she was leaving. Mr. Ullman later suggested that it was that his sister and Mr. Cofan had set him up for the events of July 5, 2012. Mr. Ullman told the court that Mr. Cofan's visit was unplanned and unexpected. Under cross-examination, he suggested that his sister had connived to plan Mr. Cofan's visit several weeks before. He also stated that, at one point, he called Mr. Cofan and that his stay of several days was expected.

In cross-examination, Mr. Ullman stated that all of the officers were equally brutal. His attention was drawn to the video of his attendance at the Barrie Police station on the night of his arrest. Mr. Coniglione was present in the booking area. Mr. Ullman said "You're not as violent as the other one". It was suggested to Mr. Ullman that this statement would make no sense if the behaviour of Coniglione, the officer who took Mr. Ullman from his home to the cruiser, was as Mr. Ullman had previously testified. Mr. Ullman's response was to suggest that this comment was the result of his fear at being in the police station in those circumstances. While the obviously injured man was treated in a most brusque and unprofessional manner by Constable Turner, the young officer manning the booking desk, the video also suggests that Mr. Ullman was treated sympathetically by Staff Sergeant Anglin, who was in command of the Barrie Police Station. It was Staff Sergeant Anglin who directed Mr. Ullman be taken to the hospital and accommodated his interview with the SIU on his return. Mr. Ullman persistently complained of his treatment by the three defendants during his stay at the station.

During cross-examination by Mr. Kinahan, Mr. Ullman's attention was drawn to the sally-port video taken at the time of his arrival. The video contradicted his evidence in-chief that two officers were involved in his transport from the arrest to the station and they left the cruiser to chat in the sally port prior to his entry. The video showed Mr. Coniglione as the sole officer in the car transporting Mr. Ullman to the station and confirmed that he did not leave the cruiser to chat with another officer in the sally-port. The video was subsequently confirmed by the evidence of Staff Sergeant Anglin which demonstrated the relevant position of the officers' cruisers using the event chronology and contemporary Barrie Police Service GPS records.

Mr. Ullman was also cross-examined on his statement to the SIU in which he indicated that he was grabbed and pushed down on the bench at the station on arrival after his arrest. The video of the booking area would appear to contradict that assertion.

Mr. Ullman gave several different responses on the issue of whether he expected his sister to call 911 after her ejection from 157 Esther Drive.

Mr. Ullman told the court that five to seven minutes elapsed from the time police entered his home until he was handcuffed. The evidence of Mr. Cofan and the event chronology suggests that this a considerable overestimate of the duration of the struggle.

Throughout his testimony, Mr. Ullman exhibited considerable confusion in identifying Mr. Coniglione and Mr. Calleja and in determining their respective roles in the incident.

Evidence of Charles Tonna

Mr. Charles Tonna gave evidence. He lived at 155 Esther Drive, next door to Mr. Ullman, at the time of these events. He was aware that Mr. Cofan was present. He was aware of a dispute between Mr. Ullman and his sister in the gazebo of the adjoining backyard. He was unaware of the reason. Mr. Ullman asked her politely to leave several times. Cornelia tried to get his attention and asked him quietly to "call 911" but her manner was very casual and he didn't take it seriously. He did not hear the sister swearing at any point.

Mr. Tonna's attention was drawn to the commotion as Mr. Ullman was lead to the cruiser. He thought that the police officer lead him to the cruiser by holding his handcuffs in the back but wasn't sure. He didn't see anything "abnormal" in the police conduct but was aware that Mr. Ullman wasn't walking normally and appeared disoriented. When Mr. Ullman reached the police car, he had a clear view of him and the police officer's arms and legs. Mr. Tonna saw no punching and kicking. He did hear the officer slam the car door.

Evidence of Kimberley Sweeney

Kimberley Sweeney was called by Mr. Flummerfelt in his customary fairness. She was the nurse at the Royal Victoria Hospital who had been the Most Responsible Nurse for Mr. Ullman's treatment on the night of July 5. That designation means that she was responsible for his care from the time he left triage until his discharge. Ms. Sweeney had good recall of the events of her shift at the hospital on July 5. She recalled it well because she received multiple calls regarding her husband because of a concern that he might be one of the officers who was stabbed that day. She refreshed her memory with contemporaneous nursing notes documenting Mr. Ullman's care that evening. She described taking him to a quiet area after triage for the rest of his stay at the hospital. At this time, two police officers were present. She recalled that Mr. Ullman was polite and co-operative with her but very angry and vocal with the attending police. He accused them of breaking into his home and removing him without any right. He repeatedly referred to his sister as "crazy". She did not recall that the police officers had made any response. She did recall that she had a conversation with the police present concerning the two officers who had been stabbed.

Ms. Sweeney was asked if one of the officers present made a suggestion not to take an X-ray of Mr. Ullman's leg. She said she had no memory of any such suggestion. She regarded any such suggestion as highly improper. She told the court she would have addressed the officer directly and then called their staff sergeant to request the officer be removed. She would also document the suggestion in the patient's chart and fill out an Unusual Occurrence Report. Ms. Sweeney told the court that she had taken such measures in the past. She was a most impressive witness. She teaches emergency nursing. She agreed with counsel that she is hyper-vigilant regarding professional standards. She was clearly filled with the professional esprit of her calling. Mr. Flummerfelt properly affirmed her credibility. The issue for the court is whether she was in a position to negative the alleged improper suggestion contained in the testimony of Mr. Ullman.

Ms. Sweeney gave evidence of significance concerning Mr. Ullman's injuries. In fact, her evidence is the only professional evaluation of those injuries available to the court. His complaints on arrival were his right wrist, back pain, an abrasion to his face and right thigh pain. In particular, his right wrist featured decreased range of motion with some deformity, pain and some swelling. It was determined that the right wrist was fractured. At the time of Nurse Sweeney's assessment, he also had a swelling of the right leg. The evidence of Sergeant Michael Ritchie indicated that there was substantial swelling in this area by the time Mr. Ullman spoke to the SIU at the police station just past midnight on July 6. This is also confirmed in the evidence of Dan Marshall, an SIU investigator who attended that night and spoke to Mr. Ullman. The photographs of Mr. Ullman's injuries, Exhibits 4A through Y, in this trial, confirm abrasions to the right side of his face, a large bruise to his right leg and a number of small marks scattered over his back. The Prisoner Log, entered as Exhibit 10, confirms swelling to his left eye and the notation "wrists" in context probably a complaint of soreness.

Evidence of Camellia Andreea Ullman

Ms. Camellia Andreea Ullman testified. She is the wife of Mr. Michael Ullman. She said she came home about one hour after the arrest. She saw Mr. Cofan next door with Mr. Tonna. She went into her house and was told of her husband's arrest by another neighbour a short time later. She confirmed the unpleasant relationship between Mr. Ullman and Cornelia Ullman and her uneasy and unexpected stay. She had gone to work in the morning and was unaware of the events of that day. She was not asked and made no mention of the hanging smoke detector which was the subject of her husband's earlier testimony.

Evidence of Kevin Calleja

Kevin Calleja was called in his own defence. At the time of his testimony, he had been a police officer for 11 years. He said he had much practical experience with domestic assaults as they are an almost every day occurrence. He has also had basic and advanced patrol experience on domestic assaults. He described domestic violence situations as extremely challenging police work as the situations are emotional events, very unpredictable and volatile in nature.

He was an acting sergeant on July 5, 2009. He had just started the 6:00 p.m. to 6:00 a.m. shift when at 18:14 on the 24 hour clock he heard two units dispatched to a "domestic in progress". Throughout his evidence, he refreshed his memory from his own notes and Exhibit 7, the event chronology created of dispatch radio traffic as well as audio recordings of the associated radio traffic. He volunteered to attend the call as well. A "priority one" or highest priority was given to this call by dispatch as is typical with domestic disputes, robberies, assaults in progress and the like. Mr. Calleja responded with emergency equipment, that is lights and siren, activated.

Driving at high speed, it took approximately 14 to 15 minutes to reach 157 Esther Drive. Mr. Calleja testified that while each cruiser is provided with a mobile work station, essentially a dash-mounted lap-top computer, it is not possible to access this device while driving at high speed and listening to radio traffic for situation updates.

During the drive to the ultimate scene of Mr. Ullman's arrest, Mr. Calleja received information from dispatch that there were potential firearms in the residence. The source of that information was a 2002 NICHE entry, a local data base. The entry advised that there were guns in the residence at 157 Esther Drive at the time of a 2002 occurrence. Mr. Calleja requested further checks from dispatch to confirm the presence of firearms but did not receive any during the drive. He stated that absent further information regarding the presence or otherwise of firearms, safety considerations demanded the assumption that firearms were in the residence. The presence of firearms would also heighten the perceived urgency of the original call.

Once at the scene, Mr. Calleja saw the defendant Bowman in conversation with Cornelia Ullman. He observed redness to her arms and several bumps to her head which corroborated the information received that she had been assaulted. He believed he had reasonable grounds for arrest for assault. She advised that there was another party inside the residence. She advised that the suspect, Mr. Michael Ullman, was "crazy" and had serious anger issues. He took this to mean the suspect may have mental health issues. Both of these pieces of information, in his mind, made the situation more urgent.

Mr. Calleja and Mr. Bowman both approached the front door of the Ullman residence. Mr. Coniglione, who arrived immediately after Mr. Calleja, went to the side of the home to have a view of the side and part of the front and back of the home. The purpose of this position was to determine if the suspect would run out with a firearm or attempt to escape the premise.

Mr. Calleja, with Mr. Bowman on his right, either rang or knocked at the front door. It was opened about one and a half feet by Mr. Ullman. Mr. Ullman used his foot to prevent a small dog from escaping. According to Mr. Calleja, he motioned for the police to enter and said, "Come in, come in" or words to that effect. Mr. Bowman, followed by Calleja and then Coniglione entered. Bowman started speaking. Mr. Bowman said something about the investigation and asked Mr. Ullman if he knew Cornelia Ullman. At that point, in Mr. Calleja's evidence, Mr. Ullman became very angry and demanded the three police officers leave his home. He was yelling, made angry hand gestures and appeared to become progressively angrier.

At this point, Mr. Calleja made a decision to arrest Mr. Ullman because, in his evidence, Mr. Ullman was becoming more belligerent and his anger was escalating. He moved to take control of Mr. Ullman by grabbing his right arm and told him he was under arrest for assault. He described Mr. Ullman becoming extremely irate and "screaming, yelling and swearing". When Mr. Calleja grabbed his right arm, Mr. Ullman pulled it towards his abdomen and began to turn away from Mr. Calleja and towards Mr. Bowman. The two officers found themselves pushed towards a table in the foyer. Mr. Calleja banged his thigh on the table. The men banged around in that area for a moment and Mr. Calleja struck Mr. Ullman on the right thigh with his knee because he was unable to get Mr. Ullman's hand behind his back to be handcuffed. He could not say what the position of the other officers was at that point. He described Mr. Ullman as an extremely strong individual, who was actively resisting. Mr. Calleja was yelling at Mr. Ullman to stop resisting arrest.

After the knee strike, Mr. Ullman went to the floor. Mr. Calleja was on his left side. He believed Mr. Bowman to be on his right. Mr. Ullman was on his hands and knees and attempted to rise to his feet. During this time, Mr. Calleja succeeded in getting Mr. Ullman's arm behind his back. He believes that Mr. Bowman was able to get the other arm back and at this time Mr. Ullman was handcuffed by Mr. Coniglione. Coniglione and Bowman raised him to a standing position by his arms. The duration of the struggle was 30 seconds. At the conclusion, Mr. Calleja noticed Mr. Cofan. Mr. Ullman was walked to Mr. Coniglione's cruiser by that officer and Mr. Bowman with their hands on either elbow. He was in obvious pain. He denied any brutality in or on the way to the cruiser.

Mr. Calleja denied hearing any request for a warrant from Mr. Ullman. He denied the alleged response "Do you want a warrant you fucking woman beater?" He denied seeing any officer strike Mr. Ullman before he became actively resistant. He denied seeing any punches or kicks to the face, back, legs, ribs or arms. He denied hearing any profanity or insults by any officer at any time before, during or after the arrest.

In the examination-in-chief of his client, Mr. Butt introduced what was eventually marked as Exhibit 15, The National Use of Force Framework, hereafter called "The Wheel". The device consists of two circles, one within the other. The inner circle describes the behaviour of the person who is the object of police action. The descriptors start at co-operative and pass through the phases of passive resistance, active resistance and assaultive through to grievous bodily harm or death. The outer circle describes the appropriate police response to that behaviour. The descriptors start at police presence, that being the appropriate posture for officers facing a co-operative person. The next posture would be communication shading through to soft control techniques. These actions would be appropriate when a person is passively resistant. Mr. Calleja defined communication as the attempt to verbally de-escalate a person who is starting to yell or show some form of emotion. Soft control techniques require physical acts such as picking up a person or walking them to the car. Active resistance would be the display of violent behaviour such as clenching a fist and yelling. Active resistance would require physical control by the officer. When active resistance becomes assaultive, hard techniques become necessary. These involve the use of punches, kicks, knee strikes and the like. The use of intermediate weapons becomes an option in this situation. Mr. Calleja defined that term as weapons such as baton, pepper spray or taser. In Mr. Calleja's view, neither baton or pepper spray would have been practical in the confined space of the foyer of the Ullman home and no one present had a taser.

Mr. Calleja's contention at trial was that Mr. Ullman's response went from active resistance, the waving of arms and yelling at the police to "get out" to assaultive, the crashing about in the foyer and the refusal to submit to handcuffing. Thus hard techniques were required to affect the arrest.

Of course, no graphic training device, such as Exhibit 15 above, can be a substitute for thought. The particular issue confronting the court is whether there is proof beyond reasonable doubt that excessive force was used on Mr. Ullman, not whether there was a good faith belief that the suggestions in the Use of Force Wheel were applied. Under cross-examination, Mr. Calleja acknowledged that Mr. Ullman did not punch or kick the officers and that he was struggling to avoid arrest.

While it emerged early in the evidence that Mr. Ullman had significant mobility issues and health concerns including fused vertebrae, in fairness, those limitations would have been unknown to the officers. He presented in court as a tall, well-built man with grey hair and facial features consistent with his years.

Mr. Calleja's evidence was that exigent circumstances permitting warrantless entry existed because of the unresolved firearm possession issue and that would be the case regardless of the advice from the sister that she didn't believe Mr. Ullman had any firearms. He did not receive this information prior to entry. In his view, that information would not absolutely exclude the presence of firearms inside the home and the police would still have to act as if they were present. Under cross-examination, he confirmed his view that the information he possessed required warrantless entry even if the third party still present in the home was known to be unharmed. He agreed that he would have received information that Mr. Ullman was negative for firearms from dispatch had he waited a few minutes after arrival to check for incoming advice. He testified that he would have considered getting a Feeney warrant if there had been no third party in the home, no firearms concern and no mental health considerations. The concern regarding the potential firearm trumped all other considerations. Mr. Calleja revealed some considerable confusion regarding the permissible purposes of exigent entry when he suggested that the search for evidence of mischief would be a legitimate additional reason for entry.

Evidence of Nathan Bowman

The evidence of Mr. Bowman corroborated that of Mr. Calleja. After he received reasonable and probable grounds from Cornelia Ullman for the arrest of her brother, he approached the house with his co-defendants. Mr. Ullman opened the door perhaps eight inches and looked around, apparently embarrassed, and motioned the officers in. He told the court that officers are generally invited in on domestics. On entry, the officers walked a few feet into the lobby. The officers were facing Mr. Ullman. Bowman on his right, Coniglione in the middle, Calleja on Mr. Ullman's left. Mr. Bowman asked him if he was Michael Ullman. He responded "Yes". At that point, it was still calm. Mr. Bowman then said "Your sister says you've assaulted her". In his evidence, Mr. Ullman became very upset and said "Get the fuck out of my house" and the struggle was on.

Mr. Bowman stated that, at this time, Mr. Calleja told him he was under arrest and grabbed Mr. Ullman's left hand. At that time, Mr. Ullman grabbed at and scratched Mr. Bowman's forearm as he attempted to grab his right arm. Exhibit 12 was identified as a photograph of that scratched forearm. Mr. Bowman gave commands to put his hands behind his back. The men crashed around in the foyer and smashed into a small table and banged against the front door and closet. He decried as "ridiculous" the suggestion that scuff marks in the area were caused by kicks aimed at Mr. Ullman. He said that the entire struggle lasted perhaps one minute. After a time, Mr. Calleja hit Mr. Ullman with a knee strike and he went to the floor.

The knee strike didn't end the struggle and Mr. Ullman attempted to "push up". Mr. Bowman hit him on the left side of the jaw to stun him and the fight soon ended. He stated that he generally agreed with Mr. Cofan's evidence. He speculated that Mr. Ullman's arm was broken when he used it to break his fall. He denied any profanity or brutality.

After the other officers left the area, Mr. Bowman took a statement from Cornelia Ullman at the roadside and Mr. Cofan in the backyard. He then attended the hospital with coffees for the other officers. He denied ever going back into the house itself. He denied any interaction with the smoke detector in the front hall.

In cross-examination, Mr. Bowman agreed with Mr. Flummerfelt that the blow he inflicted on Mr. Ullman's jaw was to the right side of his face and that his notes were in error.

Evidence of Marco Coniglione

Mr. Coniglione testified on his behalf. His evidence was, in essential respects, the same as Mr. Calleja. On the approach to 157 Esther Drive, he walked towards the rear of the property to cut off possible escape or threat. He undid his holster cover but did not draw his firearm. He entered the home when he heard interaction at the door and came in after the other two officers. He confirmed Calleja's account of the interaction at the door before the struggle. The four men crashed into something. He estimated Mr. Ullman to be 6' 4" and 240 lbs. He described him as "very strong". He participated in the struggle by attempting to handcuff Mr. Ullman and by shouting "stop resisting arrest" repeatedly. He did not strike or kick Mr. Ullman at any point. He said he didn't notice Mr. Cofan at any time. He denied assaulting Mr. Ullman outside the front door or in his cruiser.

Mr. Coniglione testified that he was alone in the cruiser with Mr. Ullman on the way to the station and later en route to the hospital. He denied any conversation with Calleja at the station sally-port. He denied pushing Mr. Ullman down hard at the bench at the station.

Court's Analysis and Findings

Finding on Entry to the Home

On the evidence presented to me, I find it is entirely possible that Mr. Ullman invited the police to enter his home, as stated by Mr. Calleja and Mr. Bowman. Rather too much family history may have been heard in the course of this trial, but the existence of a history of conflict is relevant to Mr. Ullman's state-of-mind when he faced the three defendants at his door. In the excerpts from the evidence quoted in paragraph 26 of this judgment, Mr. Ullman makes clear that he was anxious to tell his side of the story. He thought the whole matter could be resolved with an intelligent chat with police. It is clear that he was exasperated with his sister's conduct that weekend. He was most certainly still angry when the police arrived. His letter to Justice Douglas reveals him to be angry with his sister still well into the post-charge period. While in great pain and distress later that night, he used every possible opportunity to complain to both the hospital and police personnel of his sister's conduct. He was also highly embarrassed that the family dispute became known to the neighbours. It is reasonable to assume that he would have liked to tell his side of the story away from prying eyes and within the privacy of his home. I think it is likely that he was both surprised and annoyed that the police attending his home were uninterested in his side of the story. I find it more likely than not that Mr. Ullman invited the police to enter his home on the evening of July 5, 2009. As a result of this finding, it is unnecessary to determine whether the warrantless entry to which the three defendants were committed was otherwise lawful.

Assessment of Mr. Ullman's Credibility

I must assess the weight to be given to the evidence of assault by Mr. Ullman. Whether or not he assaulted his sister and destroyed her radio, he may still be the victim of assault by the three defendants. The interaction with Cornelia Ullman gave rise to and immediately preceded his confrontation with the police. It is relevant to his credibility and his state of mind at the times of the pivotal events. He denied hitting his sister and deliberately destroying the radio. Mr. Cofan contradicted him. Until Mr. Ullman learned of Mr. Cofan's evidence, the latter was his friend and a welcome guest. After he learned of the contrary testimony, Mr. Cofan became an indigent drunk and a likely conspirator with the loathed sister. Mr. Ullman disputed with defence counsel at great length concerning prior statements in which he indicated that his friend, Mr. Cofan, would corroborate his account.

Mr. Ullman told the court that the officers stopped striking him and started shouting "stop resisting arrest" when they saw Mr. Cofan. I took the meaning of this evidence to be that the officers were play-acting for Mr. Cofan's benefit. Mr. Cofan suggested he didn't hear them shout anything and that they continued exerting force on Mr. Ullman until he was handcuffed. I took the meaning of his evidence that the officers didn't react to his presence.

Mr. Ullman suggested that the historical dispute with his sister was not a serious consideration at the time of these events. This view is contradicted by his determination to tell the narrative of this conflict to many different persons on the night of his arrest and in interviews and correspondence afterwards.

Mr. Ullman said he was kneed in the face by an officer who he believed was Calleja but could only have been Coniglione. He gave a prior statement in which he said Mr. Tonna was in a position to see this brutality. He didn't. He said he was brutalized by the same officer in the cruiser that took him to the police station. Mr. Tonna was in a position to see at least part of this assault. He didn't.

Though it was clear that Coniglione was the officer whom he said was brutal with him outside his home and in his cruiser prior to taking him to the station and violently shoving him down on a bench at the station, Mr. Ullman was captured on station video describing him as "less violent" than the other officers involved. The alleged shoving on the bench at the station is also contradicted by station video.

Mr. Ullman said two police officers drove him from the scene to the Barrie police station and had a ten minute conversation in the sally-port before bringing him inside. He told the court the same two officers took him to the hospital. When contradicted by video and other evidence, including contemporaneous computer and GPS generated records, he became inconsistent, combative and contradictory in his responses.

Mr. Ullman alleged that Coniglione told Nurse Sweeney not to take x-rays of his leg. He was in a quiet area and claimed to have no difficulty overhearing the conversation. Nurse Sweeney was the best witness in this trial. I have no doubt of the evidence that she would have remembered such a request and acted appropriately. I have little doubt that the incident did not occur.

Mr. Ullman's evidence featured an almost complete confusion regarding the respective roles of Coniglione and Calleja.

I found that Mr. Ullman exaggerated in-chief and was often unnecessarily disputatious and adroit in cross-examination. I am unwilling to accept his evidence except when it is directly corroborated by other evidence.

Analysis of Physical Evidence

The Crown contends that the evidence of the defendants themselves coupled with the evidence of Mr. Ullman's injuries, the scuff marks and the hanging smoke detector supports the view that they used excessive force to subdue Mr. Ullman.

It is necessary to consider the "You're on candid camera" remark said to have been made by Mr. Ullman and the alleged concern for and attempt to discover the "eye". The potential meaning of this evidence is obvious. If true, it compels the conclusion that the defendants had a guilty concern that there might be an objective record of their conduct in the foyer of 157 Esther Drive. In corroboration, the Crown tendered a photograph, taken by the SIU, of a smoke detector in the hallway adjacent the foyer hanging down by a wire. The conclusion the Crown asks me to arrive at is that the smoke detector was detached by Mr. Bowman who was detailed to return to the home while Mr. Ullman, Mr. Calleja and Mr. Coniglione were at the hospital. It is my view, the photograph only compels the conclusion that it was hanging by a wire at the time the photograph was taken. The contrary evidence is the following: when Mr. Bowman re-attended at the scene, his stated purpose was to take a statement from Mr. Cofan. He announced himself loudly between the Ullman house and the Tonna residence. It seems unlikely he would have announced himself in this way if his primary purpose was illicit. He testified that he was familiar with construction work and smoke detectors and knew how to install or reattach one. It seems unlikely that he would leave a certain tell-tale sign of tampering. Finally, Mrs. Ullman would have been in a position to confirm the evidence of the hanging smoke detector because she returned home from work after the Bowman re-attendance and before Mr. Ullman returned from the hospital. This issue was not raised at all in her evidence. I lack the necessary confidence in Mr. Ullman's credibility to accept the evidence that he found the smoke detector hanging by a wire on his return to the home after the events of July 5, 2009.

Mr. Ullman suggested that the scuff marks in the foyer were the result of some of the kicks and blows directed at him going astray. I think it is, at least equally, possible that the marks were the result of inadvertent contact with the walls and closet doors during the struggle with some of the gear the police carried. These marks are at least as consistent with the defendants' story that Mr. Ullman's resistance caused them to crash around the foyer while they were attempting to handcuff him.

In the absence of expert medical evidence explaining the source of his injuries, the court must weigh the available testimony against the photographic evidence.

As I interpret the photographs of Mr. Ullman's injuries, the admitted fact that his arm was broken and the conflicting testimony I find that both conflicting versions of the struggle find support. No one given testimony had much notion of how the arm came to be broken including Mr. Ullman himself. Mr. Calleja speculated that he may have injured it breaking his fall after he administered the knee strike to Mr. Ullman's right leg. It seems likely that the broken arm was an unintended outcome of the struggle rather than the result of a direct blow. The facial injuries seem consistent with falling to the floor during the struggle and the blow struck by Mr. Bowman to the right side of Mr. Ullman's face. Had Mr. Ullman been punched in the face as part of the initial struggle, kneed in the face at the foot of the stairs outside the front door and punched in the face again in the cruiser, I would have expected more damage.

The numerous small marks on Mr. Ullman's back, depicted in Exhibit 4, photograph "Y", seem more consistent with being kneeled on during the handcuffing process or being forcefully grabbed than the deep bruises that might be expected from the repeated punches and kicks to the back described by Mr. Ullman by three large fit men in their 30's wearing heavy police footwear. The evidence of Mr. Cofan is troubling because he describes several punches to the back by the officer who was not holding on to one of Mr. Ullman's arms. This aspect of Mr. Cofan's evidence was not subject to meaningful cross-examination. None of the defendants testified that punches to his back were necessary to put an end to Mr. Ullman's resistance, though that might be an available conclusion on the evidence. All of the defendants seemed to deny the application of blows to Mr. Ullman other than the knee strike by Mr. Calleja and the "brachial stun" by Mr. Bowman. None of the defendants were cross-examined in respect of an explanation for the marks. In the result the court is left with evidence of multiple small marks that are consistent with a number of possibilities, including but not necessarily the infliction of unreasonable and gratuitous force. The evidence of Mr. Cofan suffers from the difficulties in perception common to bystander accounts of very brief, intense physical struggles in confined locations.

The court noted with concern the defendants' evidence that they corroborated in the compilation of their notes. This practice destroys the value of contemporaneous notes as a basis for refreshing memory. I remind myself that any credibility findings made during the Charter application heard at the outset of the trial cannot be used to assess the credibility of the defendants because of the understanding that the evidence of the applications will not be applied to the trial itself.

Analysis of Handcuff Evidence

One of the most disturbing features in this case is the allegation that Mr. Ullman was pulled up by his handcuffs after arrest and that he was held up by the handcuffs on his way to Mr. Coniglione's cruiser. Mr. Cofan appeared to corroborate Mr. Ullman's account of being lifted up by the handcuffs in the foyer of his home. Mr. Tonna, initially, testified that Mr. Ullman was held by the handcuffs on his way to the cruiser but later stated he was unsure. Mr. Cofan appeared to corroborate Mr. Ullman's account of being lifted up by the handcuffs in the foyer of his home. The Prisoner Log, Exhibit 10, appears to confirm some complaint concerning the wrists but the photographs do not suggest any abrasions to the wrists where they might be expected. I am troubled by this evidence. Handcuffs can be held as a way of asserting control of a difficult prisoner after arrest. Lifting an injured prisoner by handcuffs without support elsewhere would result in the gratuitous infliction of pain. This action alone, if proven beyond a reasonable doubt, might well result in finding that unreasonable force had been used in the arrest. I am unwilling to rely on Mr. Ullman's evidence on this issue. The defendant's militant denial, Mr. Cofan's distress and brief opportunity to witness the rapid events in the foyer and Mr. Tonna's uncertainty give me a bare and uneasy reasonable doubt on this issue.

Conclusion

Throughout this trial, I have kept in mind the presumption of innocence and the requirement that every defendant is entitled to an acquittal unless the case against them is proved beyond a reasonable doubt. These principles also protect the police from criminal liability arising out of good-faith error or miscalculation. We require, as a routine part of their duties, that police officers enter dwellings and use force. Police officers seldom have the luxury of relaxed contemplation when determining whether an emergency is unfolding behind closed doors or what degree of force is necessary to subdue an annoyed subject. It will usually be impossible to gauge with "nicety" the number of blows needed in any given situation.

Would the three accused please rise.

In the evidence of the defendants, the blows delivered to Mr. Ullman during the brief struggle in his foyer were no more than necessary to subdue him. Although Mr. Ullman was not aiming blows or kicks at the officers, they ask me to find that they were entitled to end the crashing about in the foyer by using hand blows and knee strikes and the other force used. I do not have the confidence in Mr. Ullman's account that would allow me to base a conviction on his evidence. I do not accept the proposition that the evidence of the defendant's themselves, together with the uncontroversial facts, supplies the certainty for their conviction. I am suspicious that the defendants behaved as if they were prisoners of the initial determination that the situation was a "priority one" domestic assault, failed to make use of ready-to-hand intelligence on scene and ignored available options that may have gained a better result. I cannot conclude that I am comfortable with their account of the facts. However, I must conclude that I have reasonable doubt as to whether the defendants used excessive force to arrest Mr. Ullman and I am required to acquit them.

Certificate of Transcript

Form 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

Evidence Act

I, Andrea Foerster-Davis, certify that this document is a true and accurate transcript of the recording of R. v. Calleja, Bowman, Coniglione in the Ontario Court of Justice held at 75 Mulcaster Street, Barrie, Ontario, on April 11, 2012, taken from Recording No. 3811-008-20120411 which has been certified in Form 1.

May 2, 2012

"Andrea Foerster-Davis"

Andrea Foerster-Davis, Court Reporter

Transcript Ordered: April 11, 2012

Transcript Completed: April 24, 2012

Returned from Reviewing Justice: May 1, 2012

Ordering party notified: May 3, 2012

MATTER COMPLETED