ONTARIO COURT OF JUSTICE

5
HER MAJESTY THE QUEEN

v.
10

MICHAEL J. BULLARD
**********
EXCERPT OF PRELIMINARY INQUIRY
15 **********

BEFORE THE HONOURABLE MR. JUSTICE H. BORENSTEIN

ON FRIDAY, JUNE 1ST, 2018, AT TORONTO.

20 **********
INFORMATION # 4817-998-18-75002338-00
4817-998-17-75002968-00
ATTEMPT OBSTRUCT JUSTICE - S. 139(2)
HARASSING PHONE CALLS - S. 372(4)
25 FTC ( 2 COUNTS ) S. 145 (5.1) & 145 (3)
**********
APPEARANCES:
COUNSEL FOR THE CROWN M. SCOTT, MS.
COUNSEL FOR THE ACCUSED C. BARRY, ESQ.
30 **********

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION

PURSUANT TO SS. 517(1) MAY 17, 2018 AND 539 OF THE CRIMINAL
CODE.
 2.
June 1, 2018

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION

PURSUANT TO SS. 517(1) MAY 17, 2018 AND 539 OF THE CRIMINAL
CODE.

5 THE COURT: Michael Bullard is charged

with attempting to obstruct justice,
criminal harassment, harassing
communication and two breaches of an
undertaking for attempting to contact
10 Ms. Mulligan when ordered not to do so.
This is his preliminary hearing. It is
not his trial. I am considering the
Crown’s case at its highest with all
reasonable inferences going in favour of
15 the Crown. All of the charges relate to
texts, phone calls or other
communication from Bullard to Mulligan
following their breakup. They had been
going out for about eight months. The
20 relationship was rocky. There had been
about four breakups. The relationship
finally ended in mid April 2016 after a
trip together to Miami. Bullard
continued contacting Mulligan following
25 the breakup. She did not object
initially, however by June 13th she made
it clear to him that she did not want to
hear from him anymore. He kept
communicating with her. He felt
30 aggrieved by the way he was being
treated and by rumours he believed were
being spread about him related to Ms
 3.
June 1, 2018

Mulligan. She eventually went to the

police to complain about his
communications seeking their help. The
police spoke to Mr. Bullard on July 9 th
5 and cautioned him, telling him Ms.
Mulligan did not want further
communication. Nonetheless, he
continued trying to communicate with her
to some extent. He was cautioned
10 several more times. The Crown alleges
these communications constituted
harassing communications and criminal
harassment. Once he was charged and
ordered to have no contact with Ms.
15 Mulligan, he again tried to contact her
on a couple of occasions. He was
therefore charged with failing to comply
with his undertaking. He was also
charged with attempting to obstruct
20 justice as a result of a text he sent to
Pam Seatle which he asked her to forward
to Ms. Mulligan.

I heard from Ms. Mulligan, her friend

25 Pam Seatle, Officers Yarmoluk, Metzger
and Swan. Video and audio clips, as
well as text messages, were entered as
exhibits. As I said, this is not his
trial. I am not determining if he will
30 be found guilty. I am only determining
if a reasonable jury, properly
instructed, could return verdicts of
 4.
June 1, 2018

guilty on any or all of the counts. If

so, the matter will be sent to trial.

Ms. Mulligan testified about the

5 relationship and its end and the impact
of these communications upon her. In
criminal harassment cases it is
important to consider the entire context
in which the communications occurred.
10 Ms. Mulligan testified that she and Mr.
Bullard had broken up several times
before. It was an unhealthy
relationship. As of April 6, 2016 it
was over. She ended it. She felt badly.
15 She did not want to hurt him. She
wanted to help him through it, but it
was over.

She testified that Bullard could be

20 overbearing. She testified that he
never assaulted, threatened or raised a
hand to her, but he was angry after the
breakup and was fixated on Jamie Tumelty
as the source of the stalking rumours.
25 She did not believe there were any
rumours. She was concerned that the
matter would become public and she
wanted to keep this quiet.

30 At Bullard’s request they met about a

month later in May near her home in the
Beach. They sat on a park bench and
 5.
June 1, 2018

talked. She wanted to return the

motorcycle helmet he had given to her
when she rode as a passenger on the back
of his white Harley. He did not want to
5 take the helmet back right then. At the
end of the meeting, he kissed her. She
characterized it has her letting him
kiss her goodbye.

10 There were further communications,

mostly from Bullard. For the most part
they consisted of Mr. Bullard
complaining about the way he was being
treated or invitations to Ms. Mulligan
15 to return to him or his concern that
negative rumours about him were being
spread. She testified that while she
did not particularly want these
communications, she did not object to
20 them as she did not know how to handle
the situation and wanted to help him
through the breakup. By June 13 th,
however, she told him to stop contacting
her.
25
With that background, I turn to the
communications between June 13 th to
September 21st, which are said to amount
to criminal harassment and harassing
30 communications.

Ms. Mulligan had returned from a trip to

 6.
June 1, 2018

Spain on June 12th, 2016 which happens to

be Mr. Bullard’s birthday. She sent him
a birthday greeting. He replied by text
stating that there were rumours
5 circulating that he showed up at an
awards dinner and stalked Ms. Mulligan.
He wrote that she knew that was untrue
and hoped that she would clear the
matter up the next morning at her
10 morning news meeting. He said he had no
desire to use his radio show to set the
record straight. Mulligan wrote back
saying she took this comment as a threat
and an abuse of the power of his radio
15 show. She told him to stop contacting
her and her friends as the relationship
had become toxic. She testified that
bringing up her personal relationship at
work would be unprofessional. He
20 responded saying “how dare” she act like
a victim and to please call him. She
did not reply.

On June 13th he wrote again saying he

25 would forgive her for anything including
this unfair attack on his reputation.
He understood why she felt the
relationship was toxic but did not
believe he contributed to its toxicity.
30 He said he had never been treated as
badly but would get over it and if she
had an “epiphany” she should reach out
 7.
June 1, 2018

to him, otherwise he wishes her well.

He said he loves her but cannot say he
likes her right now and thinks she
should understand that his feelings are
5 justified.

Mulligan testified that she did not see

Bullard socially after the June 12 th
birthday text although she did see him
10 once driving his motorcycle by her work
at Yonge and Victoria. He revved his
engine and his music was blaring loudly
and he looked towards CityTV’s windows.
On another occasion while she was on
15 location doing a live shoot she thought
she saw him drive by on a blue
motorcycle. She was not sure it was
him. His bike is white, but he has a
friend with a blue motorcycle.
20
Between June 14th and 20th he wrote her
several texts about the return of the
helmet, about how cold her birthday
greeting to him had been, about Pam
25 Seatle and about a tweet Mulligan
received on Twitter. Mulligan did not
reply to these texts.

On June 21st he texted Mulligan saying he

30 had gone on a few dates with someone,
who left him when she heard the rumour
that Bullard cornered Mulligan at an
 8.
June 1, 2018

awards show. He said he will always

love Mulligan and be there for her, but
hoped she thought enough of him to stop
these rumours before they did real
5 damage to his reputation. He continued,
“Please don’t leave this for me
to handle, though I would never
drag your name through the mud.
I made one mistake by showing up
10 at your house a little buzzed,
that’s all. That does not make
me a stalker.”

On June 24th he wrote saying he had not

15 heard back from Mulligan and assumed she
wanted him to take care of the matter
himself. He asked her to have Jamie
call him. That’s Jamie Tumelty,
Mulligan’s cameraman. And, again, Mr.
20 Bullard believed he was spreading these
rumours. The next day on June 25 th
Bullard texting Mulligan saying if he
did not hear from Tumelty by 4:00 the
next day, he would address the situation
25 on a radio show on which he was
appearing.

At 4:40 the next day he wrote, it’s well

after four. At 9:15 he wrote, leaving
30 now. Apparently he did address the
matter on the radio program because the
next day he texted,
 9.
June 1, 2018

“Sorry, had to be said, and I

will get in touch with Jamie.”

On June 28th he wrote an aggressive email

5 to Tumelty and copied Mulligan. In it
he wrote,
“Jamie, people I trust inform me
that you have been spreading
lies about my behaviour with
10 Cynthia. Don’t bother denying
it. I don’t know what
masturbatory white knight
fantasy was behind it and I’m
not interested in hearing your
15 reasons. Turn it around now. I
have asked Cynthia on numerous
occasions to remedy the
situation and she is unwilling
to do so. That’s fine because I
20 would forgive her anything. You
are a different story. I am
sure the snow peas between your
legs would prevent you from
having a face-to-face with me,
25 but if you decide to screw up
the much needed courage
required, feel free to bring
Cynthia with you as she has a
tendency to bring out my gentle
30 side. I better heard from you.
Mike.”
 10.
June 1, 2018

Tumelty sent the email to his boss. The

email went up the chain at Rogers, who
then sent it to Bullard’s employer at
Bell Media. On June 30 th Bullard wrote
5 Mulligan stating,
“Interesting day. Rogers called
Bell re my email and I came
close to losing my job. It’s
okay. I am a big boy. Sorry
10 for any discomfort I caused
you.”

Turning to July. On July 4 th he wrote to

Mulligan saying a “lady friend” of his
15 was wondering what was sadder - Mulligan
allowing lies to be spread about him, or
Bullard not allowing good people to tell
the truth. He continued.
“As far as the question you
20 asked Pam goes, not sure how I
feel, ambivalent I guess.”

On July 6th he texted Mulligan saying,

“Instead of asking others, it
25 would be smarter to just ask me
if I hate you. Although why you
would care is beyond me.”

On July 7th he wrote that Bell Media have

30 asked him to take a bit of a leave to
clear his head. He said that he and
Mulligan were both highly visible
 11.
June 1, 2018

people, Toronto is a small town and

wondered if they could meet at a
convenient time to put their differences
to bed. He said he had always been a
5 gentleman with her, but he had some
issues he wanted to discuss. He
concluded that if you do not want to,
that was okay, but he would not do so by
phone. He sent another text stating
10 that,
“When I’m in bed with you there
is no place I would rather be,”
together with other intimate comments,
and then followed up with another note
15 saying,
“Sorry, wrong person.”
Mulligan did not reply to any of these
texts.

20 On July 9th Mulligan contacted the

police and met with Detective Yarmoluk
to complain about Bullard’s ongoing
communications. This was the first time
she contacted the police regarding the
25 situation. She wanted the communications
to stop. Detective Yarmoluk testified
that after speaking with Mulligan he
contacted Bullard. He told Bullard that
Mulligan contacted the police as she did
30 not want any more contact from him.
Bullard said he was surprised Mulligan
called the police as they had broken up
 12.
June 1, 2018

previously and, weeks later, she would

call him and get back together. He told
Yarmoluk he would cease contact.
Detective Yarmoluk called Mulligan to
5 update her. She told him she had just
received a message from Bullard saying,
“Fine I’ll leave you alone.”
That was July 9th.

10 On July 20th there was a brief exchange

of texts between Bullard and Mulligan
about a pocket-dial between them. On
July 23rd and 28th he texted Mulligan
telling her he had business meetings in
15 the Beach and wanted to let her know in
advance and that he would leave the area
right after the meetings.

On July 30th he wrote to Mulligan

20 stating,
“This is kind of a buzz text. I
could never hate you little
girl. I will always love you in
spite of the crappy things you
25 did. Hate dating but will keep
doing it. You knew I was a
combination renaissance man
dinosaur when we were together.
Can’t believe you didn’t stand
30 up for me and called the cops
but that’s okay, I know what
problem is. Weird though still
 13.
June 1, 2018

best thing ever happened to me.

Bye, Mike. Course obvious you
hate me.”

5 On August 1st Bullard texted Mulligan

telling her he was going on a motorcycle
trip to clear his head and asked, “You
happy now.” One day she came home and
found an envelope from Bullard on her
10 front porch. It contained a ring he had
bought in Miami and a note. She spoke
to Detective Yarmoluk. He was going to
call Bullard but Mulligan told him that
Bullard was going on a motorcycle trip
15 and that might clear his head.

On August 3rd at 7:30 in the morning he

wrote saying that he was going to bed
and that he loves D and booze. Mulligan
20 believes D to refer to drugs. For the
next two days Bullard wrote a series of
texts that were sent to Mulligan but, by
their content, seemed to be
communications to his brother Pat as
25 they all relate to their childhood,
where they vacationed and their father.
The Crown submits these texts were
efforts by Bullard to reach out to
Mulligan hoping for a response.
30
On August 8th Bullard wrote to Mulligan
declaring that they both can agree that
 14.
June 1, 2018

he has treated her with patience and

respect over the course of their
relationship and that he has come to
terms with what he was reaped for his
5 efforts. Although he had not yet been
charged, he asked Mulligan to send him
Yarmoluk’s contact information. He said
the officer’s contact information was
blocked when he called him and Bullard’s
10 lawyer wanted to apply for a work Visa
in Los Angeles. He wrote that he
thought Mulligan would be glad to give
him the contact information so he could
get as far away from her as possible.
15 Mulligan sent Bullard Yarmoluk’s contact
information. Bullard wrote back
thanking her for the information and
then thanked her for making a mess of
his life. He told her to get
20 counselling before she messes up another
good man.

On August 10th he texted her telling her

that he had a meeting in the Beach and
25 would leave as soon as it was done. He
later wrote saying that she could
breathe easy. He left.

On August 11th he sent her a text about a

30 motorcycle crash and said he did not
want to get her hopes up because it was
not him. Mulligan testified she
 15.
June 1, 2018

received numerous texts from Bullard

when she was in Montreal with her
children. She did not reply, but was
becoming increasingly anxious and
5 frightened by his state of mind. She
was scared of what he would do.

On August 12th Mulligan went to the

police. Yarmoluk testified that
10 Mulligan told him about the ongoing
communications and her concern over
their escalation. She thought Bullard
was using drugs. She did not want the
matter to proceed to criminal charges
15 and thought another call from the police
may suffice. Yarmoluk cautioned Bullard
again. He told Bullard that no one
wants charges but charges were a
possibility if the contact continued.
20 Bullard said he would stop.

On August 18th Bullard wrote a text to

his friend Randy but sent it to
Mulligan. He then texted Mulligan
25 apologizing saying there was only a one
number difference between their contact
information.

Officer Metzger testified that on August

30 22nd she was detailed to contact Mulligan
and Bullard. She testified that her
main purpose was to caution both not to
 16.
June 1, 2018

contact each other. Her notes were very

sparse and her memory was very vague.
She testified that Bullard wanted to
vent and talk about Mulligan. He
5 described their relationship as “on
again off again” and Mulligan would
always come back. Bullard phoned
Metzger from time to time to vent.
Bullard told Metzger that Mulligan
10 wanted him to contact her. Metzger
advised him not to contact Mulligan as
it could be a setup.

THE PAYPHONES
15 In late August, early September,
Mulligan received phone calls from
payphones. The first was from Bullard.
He asked why she would go to the police
as he had never threatened her. She
20 said it was harassment and Bullard’s
voice grew louder and she hung up.
There were about six more calls from
payphones where the caller would - as
she described - hork and spit, and hang
25 up or just hang up. On one such call
she recognized Bullard’s voice before
the hangup. When she realized that he
was horking and spitting, her feelings
changed. It was degrading. She
30 testified that if it happened in person
it would be an assault. On another call
there was silence. Mulligan said, “I
 17.
June 1, 2018

know it’s you,” and the caller hung up.

Mulligan testified that she felt these
texts were sent in anger. They were
stressful to receive. She needed them
5 to stop. They were destroying her sense
of peace and security. Her hands would
shake when she would get them. She felt
Bullard was not acting rationally. She
was becoming concerned about his state
10 of mind. She contacted the police
thinking it would stop the
communications.

On September 21st Yarmoluk received an

15 email from Mulligan about these calls.
Yarmoluk investigated. He learned that
the payphones were located in the west
end of the city. Bullard lived in
Mississauga just past the west end of
20 Toronto. Officers located video footage
from a location near one of the phone
booths. They obtained and viewed that
footage. A white Harley motorcycle is
seen parking near the phone booth around
25 the time of the call when one takes into
account the time date stamp discrepancy
between the camera and the call. A male
who looked similar to Bullard, and who
Mulligan identified as Bullard, got off
30 the motorcycle, walked toward the phone
booth with his cell phone in his hands
and returned a few minutes later and
 18.
June 1, 2018

drove away.
Yarmoluk contacted Bullard and told him
he would be charged with criminal
harassment and harassing phone calls.
5 Bullard denied committing these offences
but arranged to surrender and was
released on conditions not to contact
Mulligan.

10 Pam Seatle testified she did not want to

get caught up in the middle of this
breakup. She and her husband were
friends primarily with Mulligan, but
also with Bullard.
15
On October 13th Bullard sent Seatle a
note he wanted her to forward to
Mulligan. The note or text contained
the phone number of Constable Metzger
20 and read,
“She said if Cynthia called her
of her own volition and withdraw
the complaint, they would
withdraw the charge.”
25
Bullard called Seatle and implored her
to forward the text. Seatle testified
that she reluctantly sent Mulligan the
text.
30
Mulligan told Swan about the text. Swan
contacted Bullard on October 16 th and
 19.
June 1, 2018

told him he would be charged with

breaching this undertaking. Bullard
said he would turn himself in. Bullard
then phoned Mulligan but she did not
5 answer and he did not leave a message.
He then texted her saying he was going
to the hospital as he had accidentally
overdosed. In submissions Mr. Barry
said this was not a suicide attempt.
10 Whether accidental or not, Mr. Bullard,
I am told, was hospitalized for about a
week. He was then arrested at his home
on October 26th and charged with failing
to comply with his undertaking.
15
Ms. Mulligan has not seen or heard from
him since that time. After the charges
were laid the Toronto Star interviewed
Bullard. In that interview he denied
20 harassing or stalking Mulligan. In
April 2018, just as the preliminary
hearing was about to begin, Bullard
tweeted that he was tired of “this BS,”
and that he never stalked a woman, and
25 while he bears no ill to one person he
wants to take down two others.
That was the relevant evidence
called at preliminary hearing.

30 Turning now to the issues on this

preliminary hearing. To recap, Bullard
is charged with criminal harassment and
 20.
June 1, 2018

harassing communications between June

13th and September 21 st. He is charged
with attempting to obstruct justice by
sending the text to Miss Seatle on
5 October 13th. He is charged with
breaching his undertaking for the
attempted phone call and text on October
16th when he told Mulligan he was going
to the hospital as he had overdosed.
10
To begin with the attempt obstruct
justice charge related to the October
13th text to Ms. Seatle, at that time he
was bound by an undertaking to abstain
15 from communicating directly or
indirectly with Mulligan. On Seatle’s
evidence he sent her that text and
called her asking her to forward it to
Mulligan. That is clear evidence from
20 which a reasonable jury could find him
breaching his undertaking. In fact, the
officer decided that was the appropriate
charge for that contact. The matter was
on track for a summary conviction trial
25 when the Crown asked the officer to lay
a straight indictable charge of attempt
to obstruct justice. With that change
Defence Counsel Mr. Barry decided to
have a preliminary hearing. In the
30 course of submissions on committal the
Crown changed its position and sought a
committal only on the failing to comply
 21.
June 1, 2018

charge. He will be committed on that

charge.

Turning now to the failure to comply

5 with undertakings. Turning to the two
breaches from October 16 th. That’s the
date Swan called Bullard saying he would
be charged. Thereafter Bullard took
pills and overdosed. He called and
10 texted Mulligan on his way to the
hospital. He remained there for a week.
The Crown wants Bullard to stand trial
for both those counts. One would think
as a matter of policy if someone is
15 overdosing and could therefore die, we
would want that person to reach out to
people. But it is a breach and if the
Crown believes that’s the appropriate
exercise of Crown discretion, he will be
20 committed on those two breaches.

Turning to the criminal harassment and

harassing communications. The offences
allegedly occurred between June 13th and
25 September 21st. The Crown seeks a
further charge of criminal harassment in
relation to the Toronto Star interview
and the tweet of April 2018 or to
broaden the date for the criminal
30 harassment count to include those acts.
I reject that argument. In The Star
interview, he professes his innocence.
 22.
June 1, 2018

That is not a continuation of any

harassment and his tweet was a
proclamation of his innocence. He is
angry about the charges which he
5 considers unfounded. He bears one
person no ill will. That, most likely,
refers to Ms. Mulligan.

Turning now to the issues on committal

10 within the time frame as specified in
the information. Criminal harassment
and harassing communications are quite
separate offences. The Crown relies
primarily upon the calls where there was
15 the spitting, for the harassing
communications count. And relies upon
those calls and the texts and other
communications for the criminal
harassment count. All of that must be
20 viewed in the context of all of the
evidence and not in isolation.

The harassing communication offence in

372(3) of the Criminal Code criminalizes
25 anyone who without lawful excuse and
with intent to harass any person,
repeatedly communicates with that person
by means of telecommunication. Harass,
in that section, and been equated with
30 annoy. See R.v. Sabine (1990), 57 CCC
(3d) 209 (N.B.O.B).
 23.
June 1, 2018

Criminal harassment in s. 264 of the

Criminal Code is intended to capture
conduct that goes well beyond conduct
which harasses and annoys. It requires
5 that, but also requires that the conduct
be reasonably perceived as threatening
to ones safety. Is that what Bullard
did? The Ontario Court of Appeal in R.
v. Kosikar, 1999 138 CCC (3d)217
10 (Ont.CA) provides guidance as to what
this offence is meant to capture. The
essence of the offence is conduct which
both harasses someone and makes them
reasonably fear for their or someone
15 else’s safety. The Court of Appeal in
Kosikar noted five elements that were
required to make out this offence. As
they relate to the issues in this case,
we are dealing with whether the conduct
20 caused Ms. Mulligan to reasonably fear
for her safety or the safety of anyone
known to her.

The facts of Kosikar are useful to

25 consider. Kosikar walked into a
restaurant. The victim was a waitress.
He tried to engage her in small talk but
she made it clear she wanted him to
leave her alone. He persisted for years.
30 He sent her letters and gifts including
to her apartment. Once she came home
and found him sleeping in hall in front
 24.
June 1, 2018

of her apartment door. She changed jobs

and he found her and continued. She
moved to a different area of town and he
found her and continued. His letters
5 referred to God having promised her to
him. She obtained a peace bond
requiring him to stay away from her. As
soon as the peace bond ended he resumed
his conduct. He was then convicted and
10 sentenced to three years probation.
When the probation ended he resumed his
conduct by sending her a letter
professing his love and offering to save
her for God. The letter made explicit
15 sexual references. She was shaken. He
was charged with criminal harassment and
he was ultimately found not criminally
responsible and detained in a mental
health centre. He argued on his appeal
20 that he should never have been found to
have committed the act of criminal
harassment for sending that one letter.
The Court of Appeal dismissed his
appeal. They dealt primarily with
25 whether a single incident, in that case
the last letter, could ground a finding
of criminal harassment. They held in
context it could. The Court then went
on to say the following.
30 “It is not sufficient that the
complainant be “vexed,
disquieted or annoyed”, rather
 25.
June 1, 2018

it must be demonstrated that the

prohibited conduct “tormented,
troubled, worried continually or
chronically, plagued, bedevilled
5 and badgered. Hence, I think
the element of the offence
requires the Crown to prove that
as a consequence of the
prohibited act the complainant
10 was in a state of being harassed
or felt harassed in the sense of
feeling “tormented, troubled,
worried continually or
chronically, plagued, bedevilled
15 and badgered.”

Webster’s online dictionary defines

disquiet as to take away peace and
tranquillity. The Canadian Oxford
20 dictionary defines disquiet as worried,
troubled, deprived of peace, anxiety and
unrest. Disquiet or the state of
anxiety, that is not enough for criminal
harassment. There must be worry about
25 being threatened about ones safety.

The facts in the Kohl case 2009 Court of

Appeal, are another example. Kohl, a
complete stranger to the victim, jumped
30 out from behind bushes and confronted
the victim, blocked her way in a
threatening and frightening manner while
 26.
June 1, 2018

she was jogging, and confronted her

without either touching or speaking to
her. He then chased her down the street
as she attempted to escape. He was
5 convicted of criminal harassment. He
appealed. The issue before the Court of
Appeal was whether a single incident of
that nature could constitute harassment.
In dismissing the appeal, the Court
10 quoted its 2008 decision Burns where
they held,
“To establish harassment under
264 of the Code the Crown had to
establish that the appellant
15 engaged in threatening conduct.
We accept the definition of
threatening conduct given in R.
v. George that in order to meet
the objectives of this provision
20 the threatening conduct must
amount of a tool of intimidation
which is designed to instill a
sense of fear in the recipient.
The impugned conduct is to be
25 viewed objectively with due
consideration for all the
circumstances in which they took
place and with regard to the
effects those acts had on the
30 recipient.”
 27.
June 1, 2018

In my view, no reasonable jury could

conclude that that’s what occurred here.
What allegedly occurred here is captured
by the harassing communications
5 provision, not the criminal harassment
provisions. In this case a reasonable
jury, properly instructed, could find
that Ms. Mulligan was harassed in the
sense that she was annoyed by Bullard’s
10 persistent communication. She wanted it
to stop. She wanted it kept quiet. He
was concerned about what he believed to
be damage to his reputation. He wanted
her to intervene and to correct it. He
15 was threatening to deal with the matter
publicly, but he was not threatening her
safety. It was stressful for her. When
he called and said he never threatened
her, she replied saying it was
20 harassment. He knew as of June 13 th and
from the first police caution that she
did not want any communication.

In my view a reasonable jury, properly

25 instructed, could return a verdict of
guilty of the harassing communication
and he will be committed on that count,
but not on the criminal harassment
count.
30
While Bullard’s conduct as alleged could
be seen as harassing in that sense, just
 28.
June 1, 2018

referred to, in my view there is no

reasonable basis for the fear for Ms.
Mulligan’s safety. Parliament has
chosen to differentiate between
5 harassing communications on the one hand
and conduct which gives rise to a
reasonable fear for one’s safety. There
was nothing in any of the communications
which gives rise to a reasonable
10 inference that her safety was being
threatened. While the communications
could be seen as persistent, unwanted,
bothersome, conduct for which he will be
committed to trial, nothing in his past
15 behaviour toward her nor these
communications allude to directly or
circumstantially, explicitly or
implicitly to any threat to her safety.
At most there was an aggressive email to
20 Tumelty, but the alleged threat to
Tumelty, if that’s what it was, was not
what this case was about. It was never
even argued. His conduct in my view is
properly covered by the harassing
25 communications count. He’ll be
discharged of the criminal harassment
count.

To conclude, he will be committed on the

30 failing to comply for the October 13 th
text to Ms. Seatle. The Crown seeks
committal on the call and the texts of
 29.
June 1, 2018

October 16th when he was going to the

hospital. He will be committed on that.
He will be committed on one count of
harassing communications.
5
Before concluding I want to say the
following. Having sat through this
four-day preliminary hearing, the
allegations at bottom are a number of
10 calls that last for months after the
breakup. The notes spoke of the
breakup. They spoke of how he believed
his reputation was being unfairly
damaged. None of the communications
15 threatened the complainant. They were
unwanted, to be sure. They were
harassing and they amounted to breaches
of the undertaking. There has been no
contact since October 2016 coming on to
20 two years. Mr. Bullard, I am told, has
already paid a significant price for his
conduct. I heard he lost his job and
obviously, at times, his liberty.

25 Both parties undoubtedly want to move on

with their lives and not live with this
case for another year. This case
proceeded to a preliminary hearing by
virtue of the Crown changing the charge
30 originally laid to a straight indictable
offence and then back during
submissions. That caused Mr. Barry to,
 30.
June 1, 2018

for his reasons, seek a preliminary

hearing. While each side may fault the
other for having this become a
preliminary hearing, the fact remains
5 that all of the main Crown witnesses
have now already testified. While I
have not heard from Bullard or any
defence, I cannot imagine any benefit to
anyone for this matter now proceeding to
10 a jury trial. I cannot imagine
reasonable, responsible counsel being
unable to resolve this case in a way
that is consistent with the interests of
Mulligan, Bullard and the public
15 interest. In this era where trials of
very serious injuries are stayed for
delay, it is perplexing that this has
taken up four days for a preliminary
inquiry and will now proceed to a jury
20 trial. This is not a case, in my view,
that should proceed to a jury trial. I
hope counsel seriously reflect on those
comments. With that I am happy to sign
the committal.
25 MR. BARRY: I’d like to apply under 524,
Your Honour, and I want the bail because
on the secondary ground because you
heard the evidence now and the most
serious offence of obstruct justice has
30 been dispensed with and the criminal
harassment which, in my humble view, is
the second-most serious offence, I would
 31.
June 1, 2018

think it is fair in the interest of

justice given the two years and the
concern on the primary ground, the
secondary ground the case has been
5 substantially weakened in my humble
submission to Your Honour. There is no
tertiary ground that he should be
released on an undertaking with the only
condition to keep away from the --
10 THE COURT: Well, if you want a bail
variation I think there is going to be
more that has to be heard and more of
the context of what else is going on.
That’s fine. Do you want a moment to
15 reflect on these or any of the comments
in the judgment or do you want to just
proceed with the bail variation or do
you perhaps want to speak to your friend
about it first?
20 MR. BARRY: One moment. My friend is
not consenting and I’m just going to
echo my submissions on the evidence
heard. I think that Your Honour has
enough information to see there has been
25 some new charges as Your Honour probably
knows by looking at the jurat and I can
tell you that those allegations --
THE COURT: Okay, before we launch into
that I’m going to take a break after
30 this. I’ll come back at ten after and
we’ll hear from both counsel if this is
proceeding to a bail hearing now before
 32.
June 1, 2018

dealing with the consent releases or

what. Okay.
MS. SCOTT: If I could just say that to
the extent that Mr. Barry wants a bail
5 hearing, which I was not told about
until just a moment ago, there are a
number of other charges and there are
police witnesses that I would have had
here today for this purpose and so I’m
10 not in a position to run another bail
hearing. One was just run like about
ten days ago.
THE COURT: He did mention it on the day
of submissions that he wanted to bring
15 this.
MS. SCOTT: And in the interim new
charges have been laid against Mr.
Bullard and a bail hearing was conducted
by Justice Wolski I think on the 17 th of
20 May. So I appreciate that. Having said
that circumstances for Mr. Bullard
changed and there was a bail hearing
heard very recently. So if this were to
turn into another bail hearing obviously
25 that’s his right, but I have police
witnesses that I would have to bring
down and I don’t have them here because
I didn’t know this --
THE COURT: Let me just ask you
30 practically speaking, Mr. Barry. Let’s
assume I agreed with you and we had a
bail hearing and I said your client
 33.
June 1, 2018

should go on his own signature, doesn’t

he still have other bails that have
various restrictive conditions. Is this
an exercise in -- I mean isn’t it a
5 bit...
MR. BARRY: Under the 524 I thought when
there was a new bail before the court.
Mr. Perlmutter came from 720 Bay on the
last day. I don’t really know why, but
10 --
THE COURT: Oh, I see, there’s one bail
for all the charges that he’s on?
MR. BARRY: Yes, and it’s very non-
restrictive actually. The new charges
15 led to less conditions than the old bail
which is kind of ironic.
THE COURT: Okay, well, I’ll give your
friend an opportunity to reply and I
would ask you to reflect on the ruling,
20 both of you, to see if this -- before I
sign any committal. I’m obviously about
to do that. At least after the bail
hearing. I’m going to take a break.
Maybe you can think about it and just
25 leave it at that. I’ll be back at
11:15.
MR. BARRY: I thank the court.
*****************************
R E C E S S
30 *****************************
UPON RESUMING:
 34.
June 1, 2018

MS. SCOTT: Good morning, Your Honour.

Thank you. Mr. Barry and I spent the
entire time that you were gone talking
but, unfortunately, we are exactly where
5 we always were and consequently I will
just put on the record although I know
Mr. Barry isn’t interested in it that in
view of the fact that there are no
longer any indictable offences before
10 the court I had said to him that should
he wish to have the trial on these
matters down here at the OCJ I would
certainly be happy to have that happen.
He has indicated and his client has
15 indicated that they would prefer to go
to the Superior Court of Justice at this
point.
THE COURT: Okay.
MS. SCOTT: That is, of course, their
20 choice. They are entitled to it and so
I just put that on the record. I’m
happy to select a date in the next --
they usually say about three weeks or so
from now in order to go to the practice
25 court in Superior Court. So I’m not
sure, Mr. Barry, if there is a date that
works for you, in particular, three
weeks or so from now to get the
indictment drafted.
30 MR. BARRY: No, I’d like to continue
this prelim. I don’t want you to sign
off. I want to have this bail hearing -
 35.
June 1, 2018

-
THE COURT: Well, you have a right to a
bail hearing, but that’s going to delay
this even further, right. I mean
5 presumably you’re not having a bail
hearing now.
MR. BARRY: I understand that.
THE COURT: I know about the charges
before me. I don’t know about the other
10 charges or what --
MR. BARRY: I think jurisdictionally
speaking I have a right. It’s a Crown
onus and in my humble assessment.
THE COURT: Crown onus.
15 MR. BARRY: Oh, no, sorry, it’s not, but
I mean it’s upon application by either
party and I’m ready to go today and
she’s not. I understand that and you
mentioned that and as you recall I was
20 always planning to do this and now I
really am planning to do it given Your
Honour’s able adjudication on the
committal because I think it does weigh
in on it.
25 THE COURT: I understand that.
MR. BARRY: And so I’m around Monday to
do it. It would take about an hour and
so --
THE COURT: Well, unfortunately for you
30 and your client I’m in the middle of
actually an ongoing preliminary hearing
next week and then I’m away the
 36.
June 1, 2018

following week.
MR. BARRY: All right, but I mean --
THE COURT: So that creates and issue,
right, for your client and for you.
5 MR. BARRY: What is your first available
date --
THE COURT: What about this.
MR. BARRY: The trial coordinator said
to speak to you, don’t go through --
10 THE COURT: About what?
MR. BARRY: About a time to speak to you
for about an hour.
THE COURT: You said you wanted to have
police officers here. I mean do you not
15 feel comfortable just telling me what
all these circumstances are about the
other offences. I’m sure that’s
credible and --
MS. SCOTT: Your Honour, I think if we
20 were able to put this over to this
afternoon because I do have other
matters already stacked up this morning,
that I could probably get enough
information to do it this afternoon.
25 THE COURT: Okay.
MS. SCOTT: I’m willing --
MR. BARRY: I’m not available --
THE COURT: Just let her finish.
MS. SCOTT: I’m willing to make that
30 effort in view of your unavailability
for the next couple of weeks. So I
don’t know everything I need to know
 37.
June 1, 2018

about the new charges, but I could bone

up on them in the meantime.
THE COURT: And I don’t evidence unless
you seem to think that you need to.
5 MS. SCOTT: All I know is that they
called evidence at the last bail hearing
and so I need to look into what
happened. I wasn’t here.
THE COURT: Understood.
10 MS. SCOTT: But I’m willing --
THE COURT: Just to interrupt you for a
moment. Are you saying you can’t do it
this afternoon if the court can give us
the time?
15 MR. BARRY: I have a doctor appointment
and I cannot. And I thought that this
really would go not that long.
THE COURT: So you can’t do it this
afternoon.
20 MR. BARRY: I can’t. Sorry. I can do
it Monday. I understand you’re not
around. It would take at most an hour.
My submissions would be very brief.
Probably fifteen minutes.
25 THE COURT: Well, it’s a question of --
can you speak to the trial coordinator
and find out if you can get an hour next
week. As I said, I’m in the middle of a
sensitive and serious case. Ms. Moore
30 and Ms. Lane are the Crowns on it.
Maybe they know if there are alleged
victims testifying on each of those
 38.
June 1, 2018

days.
MS. SCOTT: I’m familiar with that
matter.
THE COURT: If you want to do that and
5 see if there is -- I mean if we can
carve out -- if he thinks it’s an hour I
think that might be a little optimistic,
to be honest. But if we could carve out
a half a day on a day that I’m sitting
10 next week that they don’t need, I’m
happy to do that if it works for you.
MS. SCOTT: Your Honour, I don’t want to
be difficult because I am prepared to
try to do this this afternoon if we
15 could. I’m in a four-day trial next
week and so I am not available. Having
said that, I don’t know what Mr. Barry’s
appointment is. I’m not sure if it’s
something that we can work around.
20 MR. BARRY: I can’t come back today.
I’d like to have a JPT, but it’s
obviously up to Your Honour.
THE COURT: It’s not entirely up to me.
I mean is there any point to it. I mean
25 I had asked you both to reflect on the
comments I made at the end and you
immediately stood up and talked about
bail reviews and you wanted police
officers so I mean I would have liked
30 you to consider them. They’re not
binding on you. They’re just my views
sitting here more dispassionately, I
 39.
June 1, 2018

think, from my role. But I mean I have

given you the opportunity to speak and I
think you should take it. However,
let’s talk about the bail hearing now.
5 MR. BARRY: Is it worthwhile just to
because of the publication ban I can
tell you that for what it’s worth my
friend actually is making the same offer
as before.
10 THE COURT: Let’s not get into this now.
MR. BARRY: All right. I have an
amplified offer and if Your Honour
doesn’t hear it then ...
THE COURT: I’m happy to assist if it
15 will assist at some point, but right now
is not the moment to do it.
MR. BARRY: Right. Thanks.
THE COURT: So why don’t you speak to
your friend. You’re available this
20 afternoon, you’re not. Speak to your
friend about all those kinds of issues
including the issue of -- your is what?
Is it Monday to Thursday? Because I’m
not sitting Monday. I’m here Tuesday to
25 Friday if there is an opportunity to do
it.
MS. SCOTT: I start a Superior Court
trial on the 11th and in the afternoon of
the 8th I’m meeting -- the morning and
30 the afternoon I’m meeting with victims.
So I’m out of court but unfortunately
already booked that day.
 40.
June 1, 2018

THE COURT: This has been a couple of

interesting developments in the issue of
a further trial, et cetera. It seems
like there’s so many balls in the air.
5 I mean think about them. Talk about
them. Think about them and I guess I’m
referring to both of you, but I’m
looking at you, in particular, Mr.
Barry, because you’ve got these various
10 things happening.
MR. BARRY: Sometimes you can do a
mediation. I’ve done that before with
John Flaherty. I’ve done it with
another judge where we can get the
15 complainant and the accused, the officer
in charge and us two in a room and maybe
we can mediate it out.
MS. SCOTT: I have another idea.
THE COURT: Okay.
20 MR. BARRY: Just a thought.
MS. SCOTT: Mr. Bullard has another
matter up on June 21 st. I anticipate
that resolution opportunities may occur
depending on the outcome of that matter.
25 I wonder if my friend is prepared to
waive 11(b) between now and the
determination of that other matter and
have you continue to be seized or
alternatively have a bail hearing with
30 that judge in order to then see if once
the June 21st matter is concluded
positions have changed.
 41.
June 1, 2018

MR. BARRY: I’m going to be applying to

adjourn that matter. I told my friend.
MS. SCOTT: You didn’t actually tell me
you were planning to do that.
5 MR. BARRY: But I’ll do a formal
application.
THE COURT: How long will this all go
on?
MR. BARRY: That’s what --
10 THE COURT: So, okay --
MR. BARRY: I want to see what my latest
offer is but I --
THE COURT: I don’t want to get into
offers any further. I just want if it’s
15 possible to end it for everyone. If
it’s not, that’s totally fine. If you
want to just proceed to a trial, proceed
to trial. I can help with the bail
hearing at some point. I could help
20 with a pretrial, but there’s too many --
MR. BARRY: Maybe after the bail hearing
we can consider a JPT, exit before --
THE COURT: The question is when is the
bail hearing going to be.
25 MR. BARRY: I’ll go find that out.
THE COURT: And you can’t reschedule
your appointment today?
MR. BARRY: No, I can’t.
THE COURT: Okay, that’s fine.
30 MR. BARRY: It’s a bone density
appointment.
MS. SCOTT: And, Your Honour, I would
 42.
June 1, 2018

also say this. So that we could discuss

things in a more fulsome manner, off the
record, I would be prepared to have a
further exit judicial pre-trial with you
5 today.
THE COURT: Okay.
MS. SCOTT: Having said that, I have a
plea I’m supposed to be doing right now.
And I have a meeting at twelve o’clock
10 with the victims. So if there is a
possibility of meeting during the lunch
hour. I appreciate that I’m imposing on
your lunch hour. I know Mr. Barry has
appointments this afternoon, then Mr.
15 Barry could say whatever it is that Your
Honour doesn’t want to hear in open
court and we could explain perhaps in
better detail what the lay of the land
is going forward.
20 THE COURT: If there is a realistic
possibility of this matter somehow
resolving, I’ll do that for sure.
MS. SCOTT: I don’t know, Your Honour.
THE COURT: I’m not expecting a
25 commitment. I’m just saying is it
realistic.
MS. SCOTT: I just learned that my
friend was planning on adjourning the
June 21st matter and obviously I’m
30 concerned about all of this just
dragging out infinitum. So if Mr. Barry
thinks that that is something he’s
 43.
June 1, 2018

willing to do and if Your Honour is able

to accommodate us after unfortunately my
other obligations this morning before
his appointment, I’m happy to do that.
5 THE COURT: I’m happy to do that.
MR. BARRY: I’m not available, sorry. I
could go right now for about fifteen
minutes, but that’s all my availability
unfortunately. I apologize.
10 THE COURT: What’s ready to go here?

TRANSCRIPTIONIST’S NOTE: At this time

the list was spoken to. The matter was
held down.
15
THE COURT: What’s happening? Let’s get
Mr. Bullard in, too. What’s going to
happen?
MR. BARRY: Sorry, he’s just outside the
20 court. I’ll just run and get him.
THE COURT: Mr. Barry, Ms. Scott, on the
Bullard matter, where are we here?
MS. SCOTT: So Mr. Barry is not
available to speak to Your Honour today
25 so that’s not happening. He has
attended the trial coordinator’s office
and apparently the first two dates that
they’ve offered him for a bail hearing
that he is available is July 30 th.
30 MR. BARRY: No, I’m available July 18 th
and that’s your first available date
according to her. That’s what I recall.
 44.
June 1, 2018

THE COURT: Do you really want it to go

over that long? I mean we’re talking
about six weeks. I realize you have the
other matter June 21 st. If you want to
5 have a pre-trial let’s find time for a
pre-trial that works for all. How about
at the end of some day?
MS. SCOTT: I’m happy to do it.
Obviously Mr. Barry has already told me
10 he plans to bring an 11(b). So I’m
concerned about going over with no 11(b)
waiver for things like bail hearings or
Crown pre-trials. So the difficulty
that I find myself in given what he’s
15 told me this morning is that if he’s
bringing an 11(b) application
unfortunately I find myself having no
choice but to say to you could you
please commit for trial so we can get
20 that ball rolling, but he doesn’t want
that to happen because he doesn’t want
you to become functus.
THE COURT: What’s the section of the
bail hearing that you’re relying on?
25 MR. BARRY: 524.
THE COURT: Go ahead.
MR. BARRY: Ss. 2(1)(b), I believe. It
says, “At anytime --
THE COURT: Give me a second. It’s the
30 one at the end of the preliminary
hearing, 524?
MR. BARRY: Yes. I’ll get the exact
 45.
June 1, 2018

subsection. It looks like it’s 523. I

apologize.
THE COURT: 523, what?
MR. BARRY: (2)(b). 532(2)(b). I’ve
5 invoked it as Crown and defence in the
past.
THE COURT: Right, but if this is going
to delay matters for six weeks, that is
not reasonable.
10 MR. BARRY: All right, well I’m around
next week and I know that she’s not. I
said what’s your earliest available day,
I’ll need about an hour because my
submissions will be all of fifteen
15 minutes.
THE COURT: It’s now fifteen minutes. I
thought it was an hour.
MR. BARRY: Well, because she wants to
call evidence and all that. I’m not.
20 So fifteen minutes respectfully.
THE COURT: Okay, so what I’m going to
do is order a pre-trial. Consider your
positions on all outstanding matters and
I’m happy to do it at the end of the day
25 if that accommodates you next week
sometime. So you want to say 4:30 or
5:00. Would that work?
MS. SCOTT: I could do either nine
o’clock before court or I could do after
30 court any day next week except for
Friday.
THE COURT: Okay, so I’m happy to do it
 46.
June 1, 2018

either before or after court any day.

MR. BARRY: Tuesday, 9:00 a.m. if that
works for Your Honour.
THE COURT: Do you have to get to
5 Superior court or something like that?
MS. SCOTT: No, next week I’m here, Your
Honour.
THE COURT: Would we have time to have a
discussion?
10 MS. SCOTT: So if we do it at nine, then
I don’t have to be anywhere until ten.
THE COURT: I’ll adjourn this case. I
won’t do a committal yet and we’ll see
what happens on Tuesday at nine o’clock.
15 MR. BARRY: And my friend has to speak
to the complainant, victim/witness, and
the officer in charge, too, and that
will give her time to do that.
MS. SCOTT: I have already done those
20 things, Your Honour.
MR. BARRY: All right. I don’t think
she has because --
THE COURT: Let’s just meet on Tuesday.
Just let the trial coordinator know nine
25 o’clock on Tuesday we’ll book an hour.
All right?
MS. SCOTT: Thank you.
MR. BARRY: I thank the honourable court
and I thank my provincial friend.
30 THE COURT: So we’ll hold off on signing
the committal on that until Tuesday.
It’s going over to Tuesday.
 47.
June 1, 2018

CLERK OF THE COURT: This court.

THE COURT: It’s going to be where I am.

*************************