R. v. Elliott, 2016 ONCJ 35

CITATION: R. v. Elliott , 2016 ONCJ 35 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Gregory Alan Elliott Before Justice Brent Knazan Reasons for Judgment released on January 22, 2016 Ms. Marnie Goldenberg ........................................................... counsel for the Crown Mr. Christopher R.

Murphy................ counsel for the defendant Gregory Alan Elliott Table of Contents Background............................................................................................................... 1 Introduction.................................................................................................................... 1 Twitter............................................................................................................................ 2 Framework.................................................................................................................. 6 The Charges.................................................................................................................. 6 The Crime of Criminal Harassment.............................................................................. 6 Actus Reus – the culpable behaviour and consequences............................................ 8 Mens Rea – the mental element................................................................................... 8 Knowledge............................................................................................................... 10 Recklessness........................................................................................................... 11 Fear for Safety............................................................................................................ 11 The Proof of the Tweets.............................................................................................. 12 The proof that Mr.

Elliott sent the tweets attributed to him........................................... 14 The Omission of Recklessness from the Charges..................................................... 20 FACTual Background.......................................................................................... 28 @amirightfolks – Stephanie Guthrie........................................................................... 28

Mr. Elliott’s interactions with Ms.

Guthrie.................................................................... 28 From May 3 to July 6................................................................................................ 33 The Bendilin Spurr affair............................................................................................ 33 From the blocking to the start of the period the information covers – July 7 to 31........ 35 August 1 to September 12........................................................................................ 39 The six November tweets.......................................................................................... 44 Tweets with the hashtags Ms.

Guthrie uses................................................................ 45 @LadySnarksAlot – Heather Reilly............................................................................ 48 November 2012, just before the charge...................................................................... 54 ANALYSIS...................................................................................................................... 56 Has the Crown Proven Every Element of the Offence?............................................ 56 Communication on Twitter......................................................................................... 57 Freedom of expression............................................................................................. 58 Hashtags................................................................................................................. 58 ANALYSIS: Stephanie Guthrie................................................................................... 62 Repeated communication.......................................................................................... 62 Was Ms.

Guthrie harassed?....................................................................................... 62 Did Mr. Elliott know that Ms.

Guthrie was harassed?................................................... 63 Recklessness........................................................................................................... 72 Fear for her safety.................................................................................................... 73 Reasonable in all of the circumstances...................................................................... 74 The circumstances.................................................................................................... 75 ANALYSIS: Heather Reilly.......................................................................................... 79 Repeated communication.......................................................................................... 79 Was Ms.

Reilly harassed?......................................................................................... 80 Did Mr. Elliott know that Ms.

Reilly was harassed?..................................................... 81 Fear for her safety.................................................................................................... 82 Conclusion............................................................................................................... 86 Background Introduction Gregory Elliott is charged with criminally harassing two women, Stephanie Guthrie and Heather Reilly, by repeatedly communicating with them knowing that they were harassed; and by the repeated communication causing them to reasonably, in all of the circumstances, fear for their safety.

He is also charged with violating a bond binding him to keep the peace. Mr. Elliott, a graphic artist, met Ms. Guthrie once and then exchanged emails with her about his offer to design a poster and a logo for free for her Women in Toronto Politics (WiTOPoli) group, and he may have met her one other time.

Mr. Elliott and Ms. Reilly never met and never emailed each other. The case against Mr. Elliott is criminal harassment by “tweeting”, or sending tweets. Tweets are messages that persons with Twitter accounts send to one another or to the world at large. Twitter is a social medium that people use to communicate succinctly with other people who have Twitter accounts. Mr. Elliott sent some tweets directly to both women, but the prosecution does not rely on the direct tweets alone. Ms. Guthrie’s harassment and fear came from her perception that Mr.

Elliott sent an incessant and obsessive amount of tweets, including those not sent directly to her but of which she would have been advised. Ms. Reilly became fearful when she inferred from one of his tweets that Mr. Elliott might be in the same physical place as her. The alleged communication by tweeting also includes tweets by Mr. Elliott about subjects, topics, ideas and events that Ms. Guthrie and Ms. Reilly were interested in and therefore might or probably would read.

Section 264 of the Criminal Code is a detailed definition of a complicated charge with several constituent elements. One issue is whether Mr. Elliott’s tweets about topics and events that the complainants were likely to read amount to indirect communication with Ms. Guthrie and Ms. Reilly, as the

section contemplates. The prosecution must also prove that his tweets harassed them. If so, another issue is Mr. Elliott’s knowledge that they were harassed. The prosecution must also prove that the communication caused the complainants to fear for their safety, and finally that the fear was reasonable in all of the circumstances. I begin with what Twitter is. Twitter One cannot understand this case without knowing about Twitter.

The evidence about Twitter – what it is, how it works and how its users understand that it works – came from four sources: the evidence of Police Constable Dayler, who is qualified as an expert in Twitter; the evidence of Ms. Guthrie, who works as a consultant and depends on Twitter for her work, and who tweets and reads others’ tweets extensively; the evidence of Ms. Reilly, who had sent over 300,000 tweets at the time she testified; and the tweets of Mr. Elliott, who did not testify but expressed his views about Twitter in some tweets that he sent.

This judgment does not preface every reference to Twitter with the words “based on the evidence,” but all the references to it come from these four parts of the evidence. There are gaps in the evidence about Twitter; there is no evidence of how Twitter works in any technical sense. However, I restrict myself entirely to the evidence. A case of criminal harassment over social media cannot turn on whether the judge happens to know or use social media, though I do take judicial notice of facts that need no proof.

Twitter is pervasive; many famous persons tweet, and many newspaper articles and radio and television programs suggest obtaining more information on a topic by resorting to Twitter. Twitter has its own language, and one cannot discuss the evidence without recourse to it. My

definitions derive from explanations by three witnesses who were not always clear or consistent among themselves. Twitter is a freely accessible online platform where people can engage in micro-blogging, sending short messages to individual followers or the general public. A tweet is a message sent on Twitter, and is limited to 140 characters but can include links to other content on the internet. To tweet is to send a message on Twitter. It can but need not be addressed to another user or person; one can send a tweet without addressing it.

In this judgment I use “to tweet” or “tweeted” to describe such a general message on Twitter; if the tweet is to another person or persons, the terminology is “tweeted to”. A Twitter account enables the account holder to tweet and receive tweets. A Twitter account can be opened by submitting a valid email address and a name that can be either real or fake. A user’s name in Twitter is called a “ handle ”. It takes the form of the “at sign” ( @ ) followed by a name or initials, or just a word or words. It is also called a “username”. A follower is a person who signs up to read someone’s tweets.

The permission of the person followed is not required unless the account is private. To follow any other Twitter user, one need only click the word “follow” next to a handle on a box with a blue bird on the Twitter screen. A tweet that starts with the intended recipient’s handle will also be seen by those who follow either the sender or the receiver, according to P.C. Dayler. A mention occurs when a handle is put after text of the tweet. The user whose handle is mentioned is advised (sometimes termed notified), and can access the tweet that mentioned them.

It is not clear how they are advised and what they must do in order to see the tweet. A direct message , seen as “DM” or “D” on the screen of the tweet, is a Twitter feature that allows the sender to communicate with just one user rather than to a public forum or stream. A locked or private account is one that only those whom the account holder approves can follow. To favour a tweet is to indicate a positive response to a received tweet. To unfollow , by clicking on the “unfollow” button, is the reverse of “follow”. According to P.C. Dayler, if you unfollow someone then

you cease to receive their tweets, but you will still see tweets from others you follow that reference the person. To retweet , seen as “RT” on the screen of the tweet, is to share a message with one’s own followers without changing it. To signal boost is to widely diffuse a tweet by retweeting. To modify a tweet , seen as “MT”, is to fix grammatical or spelling errors but not change the content of a tweet. One can also modify a tweet by commenting on it or adding information. Hashtag , the number sign ( # ) followed by text, usually identifies a topic.

Anyone can create one; once it is created, anyone can follow the hashtag and receive all tweets that use it, from anyone, anywhere, regardless of who they are writing to. (It did not clearly emerge if this applies to direct messages.) Twitter rules are rules published by Twitter. One must agree to them in order to obtain an account. They address what is allowed in modifying tweets and what Twitter considers to be abuse.

A feed or newsfeed enables a user to create specific feeds or lists that only give information that the user wants to follow, such as a type of tweet, or tweets from certain media outlets, or hashtags, according to P.C. Dayler. Ms. Reilly used feed to mean the activity on her account. A troll is an individual or a group that constantly causes problems by making negative comments and engaging in online bullying. A concern troll is someone who pretends to be sympathetic about a topic or discussion while trolling. Calling out is singling out someone for what they are doing or are, or directly confronting a user.

To storify is to create a record of tweets or other communications. Avatar : an image chosen by an account holder that shows on every tweet they send. It can be a photograph or a cartoon, or the space for it can be left blank Open account : one that isn’t blocked. Anyone, even a person without a Twitter account, can see the tweets in an open account on the Twitter website. To tag (defined by Ms. Guthrie) is to use someone’s handle; she compared it to copying someone on an email. To subtweet is to refer to another tweet in text without quoting or retweeting the original tweet.

Block : to set your account so that someone cannot send you tweets. A period (.) before a handle was the subject of conflicting views. P.C. Dayler treated the period as any other character put before a handle. “Putting any character before [a handle that starts a tweet], whether it’s a word, whether it’s a period, whether it’s anything like that … [means] that message is viewable by only people necessarily who follow the creator of that content.” So his view is that putting a period before a handle reduces diffusion of the tweet. Ms. Guthrie and Ms. Reilly distinguished the period from other text. Ms.

Guthrie explained, according to the transcript, “If you start a tweet with a person’s handle, only people [who] follow both you and that user can see the tweet. If you add a period in front … everyone who follows you can see the tweet in their stream whether or not they follow the person you’re tweeting at.” Ms. Reilly said, “The use of a period before a user name is so that people who don’t follow Greg Elliott or don’t follow myself [and]* Greg Elliott would see that I directed a statement at him.

Without that period, the only person that would have seen that statement would be Greg_A_Elliott, as well as anybody who happened to follow both my account and that account. … when you put the period though … the entire world” can see it. She added, “There is no limitation to it being able to be viewed.

Anyone who has a Twitter account, or anyone who … would have logged on to @LadySnarksAlot would have seen that in my public display.” * transcribed as “at” Framework The Charges Gregory Alan ELLIOTT, sometime between and including the 1 st day of August in the year 2012 and the 20 th day of November in the year 2012 in the City of Toronto, in the Toronto Region, knowing that Stephanie GUTHRIE is harassed, did repeatedly communicate directly or indirectly with Stephanie GUTHRIE thereby causing Stephanie GUTHRIE to reasonably, in all the circumstances, fear for her safety, contrary to the Criminal Code and further that Gregory Alan ELLIOTT, sometime between and including the 1 st day of August in the year 2012 and the 20 th day of November in the year 2012 in the City of Toronto, in the Toronto Region, knowing that Heather REILLY is harassed, did repeatedly

communicate directly or indirectly with Heather REILLY thereby causing Heather REILLY to reasonably, in all the circumstances, fear for her safety, contrary to the Criminal Code and further that Gregory Alan ELLIOTT, sometime between and including the 1 st day of August in the year 2012 and the 20 th day of November in the year 2012 in the City of Toronto, in the Toronto Region did being at large on his recognizance bound under

section 810 entered into before a Justice and being bound to comply with a condition of that recognizance directed by the said Justice, fail without lawful excuse to comply with that condition, to wit; Keep the peace and be of good behaviour, contrary to the Criminal Code The Crime of Criminal Harassment

Section 264 of the Criminal Code reads: 264.

(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of (

a) repeatedly following from place to place the other person or anyone known to them; (

b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them; (

c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or (

d) engaging in threatening conduct directed at the other person or any member of their family.

(3) Every person who contravenes this

section is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or (

b) an offence punishable on

summary conviction.

(4) Where a person is convicted of an offence under this section, the court imposing the sentence on the person shall consider as an aggravating factor that, at the time the offence was committed, the person contravened (

a) the terms or conditions of an order made pursuant to

section 161 or a recognizance entered into pursuant to

section 810, 810.1 or 810.2; or (

b) the terms or conditions of any other order or recognizance made or entered into under the common law or a provision of this or any other Act of Parliament or of a province that is similar in effect to an order or recognizance referred to in paragraph (a).

(5) Where the court is satisfied of the existence of an aggravating factor referred to in subsection (4), but decides not to give effect to it for sentencing purposes, the court shall give reasons for its decision. The offence, as Parliament has defined it under

section 264, is complex. The application of subsection (2)(

b) is even more complex in relation to Twitter, in which communication with individuals directly and indirectly overlaps with communication with everyone using the service, and communication with everyone else using the service becomes indirect communication with individuals. I will first outline what the prosecution must prove. In R. v. Kosikar , [1] Justice Goudge, following Justice Proulx in the Quebec Court of Appeal in R. v. Lamontagne , [2] agreed with this description of the five elements of the offence that originated in a 1997 decision of the Alberta Court of Appeal in R. v.

Sillipp : [3] 1 ) It must be established that the accused has engaged in the conduct set out in s. 264(2) (a), (b), (c), or (

d) of the Criminal Code ; 2 ) It must be established that the complainant was harassed; 3 ) It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed; 4 ) It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and 5 ) It must be established that the complainant’s fear was, in all of the circumstances, reasonable. The description essentially rearranges the elements in the offence that emerge from the section.

In Lamontagne , [4] Justice Proulx rejoins the fourth and fifth elements as they are in the section, while adopting the Sillipp description, and organizes the actus reus into three elements, from which I take the following: Actus Reus – the culpable behaviour and consequences The three elements of the actus reus are: • the act prohibited under subsection (1), in this case repeatedly communicating directly or indirectly under subsection (2)(b),

• the fact that the victim is harassed and • the effect that this act provokes in the victim. Harassment means causing someone to be tormented, troubled, worried continually or chronically plagued, bedevilled and badgered. It isnot sufficient that the complainant be “vexed, disquieted or annoyed.” (Kosikar, paragraph 21) Mens Rea – the mental element With respect to the mental element of the offence, all of the appeal courts resort directly to subsection (1) – the defendant must know orbe reckless as to whether the complainant is harassed – and add wilful blindness.

While addressing this mental element, the specific statutory state of mind, the authorities from three of the provinces (Sillipp,Lamontagne and Kosikar), were dealing with the prohibited behaviour in subsection (d), threatening. Only R. v. Rybak[5] in the BritishColumbia Court of Appeal dealt with (b), repeatedly communicating. That case involved delivery of a package, a dinner invitation and apersonal appearance at the complainant’s house on Valentine’s Day. Those courts did not address the mens rea of communicating directly or indirectly.

While in most cases the general intent required forcommitting that part of the actus reus will be self-evident, since the case involves Twitter I address the mental element in relation to theactus reus of repeatedly communicating. This is because some of the communication that is alleged to constitute the repeatedcommunication is tweets using hashtags that could have been conveyed to the complainants or that they could have seen, but Mr. Elliottdid not necessarily intend or know that. The mental element that the charging

section and the charge specify relates to the part of the actus reus that involves awareness of thecomplainant being harassed. Justice Proulx makes clear in Lamontagne that the complainant must be harassed in fact as a conse​quence ofthe prohibited act, and Justice Goudge in Kosikar accepts that the complainant must be in a state of being harassed as a consequence ofthe prohibited contact. Further, judicial

interpretation of the

section establishes that the defendant must be responsible for the harassment that the complainant isexperiencing. At paragraphs 15 and 16 of Lamontagne, Justice Proulx states as follows:[6] Ce deuxième élément de l'actus reus, à savoir que la plaignante soit harcelée, ressort plus clairement de la version anglaise du texte quiexige la connaissance que la plaignante "is harassed", alors que la version française réfère à la connaissance que la plaignante "se senteharcelée". Dans l'arrêt R. v.

Ryback (1996), (BC CA), 105 C.C.C. (3d) 240, la Cour d'appel de la Colombie-Britannique a aussi interprété l'art. 264 comme exigeant la preuve de la connaissance par l'accusé que la plaignante a été de fait harcelée,concluant que le premier juge n'avait pas erré "in finding that appellant knowingly or recklessly harassed the complainant". (Rybak asspelled in original) D'ailleurs, quand dans la version française il est stipulé que la connaissance ou l'insouciance que la plaignante se sente harcelée celaimplique que l'auteur, par son fait, a contribué au harcèlement de la plaignante puisqu'on pourrait difficilement lui imputer uneconnaissance d'un état dont il n'est pas responsable.

English version from (QC CA), 129 C.C.C.(3d)181: The second element of the actus reus, that is the complainant was harassed, appears even more clear in the English version of the textwhich requires knowledge that the victim “is harassed”, whereas the French version refers to knowledge that the complainant “feelsharassed”. In R. v.

Ryback (1996), (BC CA), 105 C.C.C. (3d) 240, the British Colombia Court of Appeal alsointerpreted s. 264 as requiring proof of the accused’s knowledge that the complainant was in fact harassed, concluding that the trial judgehad not erred “in finding appellant knowingly or recklessly harassed the complainant”.

Furthermore, when in the French version it is stipulated that there be knowledge or recklessness that the complainant feels harassed, thatimplies that the perpetrator, by his own act, contributed to the harassment of the complainant because one can hardly impute to himknowledge of a state of being which he is not the cause of. (Emphasis only in English translation) I rely on the original as well as the translation because in my opinion it is arguable whether or not the apparently unofficial Englishversion fully conveys Justice Proulx’s “on pourrait difficilement lui imputer une connaissance d’un état dont il n’est pas responsable.” Also, the translation has emphasis thatdoes not appear in the online original.

Knowledge Knowledge means actual knowledge; as the Ontario Court of Appeal stated in R. v. Zundel,[7] the accused must know. A specific state ofmind is specified in this section, which does not admit of anything less than knowledge, or recklessness as contemplated by the sectionand the form of charge in the Criminal Code. Don Stuart argues[8] that Zundel is wrong and that the ruling is moot because the SupremeCourt declared the

section in question unconstitutional. But I hold, following the reasoning in Zundel, that knowledge requires that theaccused actually knew. This also flows directly from the word without resort to authority: “knowing” requires that someone knows. Kosikar includes wilful blindness, which is a narrow, specific state of mind. In R. v. Brisco, the Supreme Court said wilful blindness can“substitute for actual knowledge whenever knowledge is a component of the mens rea.”[9] A court can properly find wilful blindness only where it can almost be said that the defendant actually knew.

He suspected the fact; herealised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to denyknowledge.[10]

The specific mental element of this offence has another feature: it requires knowledge of the mental or emotional state of another. A defendant’s state of mind is always to be inferred, by either circumstantial evidence or their statements. Here, the specified intent has an unusual feature because it is a mental element of a crime that requires knowledge of another’s mental or emotional state. To determine what the defendant knew, I must analyze what he must have inferred about the complainants’ states of mind. Recklessness Recklessness means actual foresight of risk, according to Don Stuart, who cites R. v.

Sansregret (1985). It has an element of the subjective. Courts have defined it in different ways but essential to all is an awareness of risk and a decision to act notwithstanding it. As Justice McIntyre said in Sansregret : [11] “It is found in the attitude of one who, aware that there is a danger that his conduct could bring about the results prohibited by the criminal law, nevertheless persists, despite the risk.” Fear for Safety The final requirement of this offence is that the complainant have a fear for her safety that is reasonable in all of the circumstances.

The fear must be proven as a fact, though this is subjective to the complainant. The fear must be for her safety. The fear must be reasonable in all of the circumstances. The word “reasonable” imports an objective evaluation of another person’s – the complainant’s – feeling, however real and genuine that feeling might be. [12] And the word “all” is as much a part of the

section as every other word in it. Thus I must objectively evaluate the complainants’ fears in view of all of the circumstances. In a charge of criminal harassment by means of Twitter, when there can be multiple tweets between the complainant and the defendant within a few minutes, and many tweets from others, some of which contribute to the circumstances, that can amount to a lot of circumstances to consider. The Proof of the Tweets The alleged repeated communication is communication using Twitter only. The complainants testified that they sent certain tweets, and that they saw and received certain tweets.

However, both complainants tweet prolifically, and they could not remember all the tweets that they received or sent. The proof of the tweets being sent, and their content, which the prosecution argues harassed the complainants and caused them to fear for their safety, is the whole of the case on the act of repeated communication. Ms. Reilly and Ms. Guthrie testified to other elements of the offence and confirmed that they had sent some tweets, which are relevant circumstances, and received and read some of the tweets. But without the tweets that Mr. Elliott sent, there is no proof of repeatedly communicating.

The prosecution seeks to prove the repeated communication by introducing an electronic record of the tweets into evidence. These records were obtained as follows. Detective Bangild, who has training in digital technology and using the internet as an investigative tool, received the complaints. He investigated using a computer program from the Sysomos company. To use this program requires a licence, which anyone can acquire, and the Toronto Police Service had acquired one.

A person’s public tweets are available to anyone on the public platform, as Twitter does not protect its users’ tweets, so no search warrant was required. Along with a civilian proficient in computers, Det. Bangild had tried to access the tweets of the complainants and Mr. Elliott using the public platform. That is, they looked on Twitter’s website, where anyone can go to read tweets (without a Sysomos licence). This approach limits the number of tweets by period of time, and does not capture erased tweets.

He decided that to investigate properly required looking at many more tweets than were visible on the public platform, so he resorted to the Sysomos software. P.C. Dayler explained that the Sysomos software does not save pictures or videos that were attached to the tweets, but only the text of the tweets. Det. Bangild spoke to Ms. Guthrie and Ms. Reilly as well as another woman. He decided that for each complainant he would look for the “conversation between” the complainant and Mr. Elliott. He conducted this search by looking for every tweet that each complainant sent that contained Mr.

Elliott’s handle, and every tweet that Mr. Elliott sent that contained either complainant’s handle. He also searched for tweets that Mr. Elliott sent that contained certain hashtags. From the complainants’ evidence, I infer that the complainants reported to the police that Mr. Elliott was communicating with them by sending tweets using hashtags that, in the case of Ms. Guthrie, he knew that she had either created or followed, and in the case of Ms. Reilly, that he knew that she followed. Det. Bangild also searched for the hashtag #fascistfeminists, which one of the complainants advised him that Mr.

Elliott had either created or used. The complainants either did not disclose or Det. Bangild did not search the hashtag #GAEhole that someone had created in relation to Mr. Elliott. When Det. Bangild printed out the results of his search, he produced tables of tweets. The first column contains a URL link to where the tweet can be found on the internet; there the tweet is shown with the sender’s handle. The second column states the date the tweet was sent. The third column contains the content of the tweet. The prosecution introduced these search results into evidence.

This format, in the case of the tweets searched by sender (a complainant or the defendant) that contains the other’s handle, gives the impression of an exchange when the tweets follow closely in time. Indeed Det. Bangild titled the documents “Conversation Between Stephanie Guthrie and Gregory Elliott” and “Conversations Between Reilly and Elliott.” The tweets in this form do not appear as they would to someone tweeting or looking up tweets on the internet at Twitter's site without

using the Sysomos software. For one thing, the content of the tweets is sometimes garbled, as punctuation comes out as symbols in the Sysomos program. To see what the original viewers saw requires opening the full tweet. To this end, the prosecution introduced into evidence computer files on disks (DVDs) with the Sysomos software search results. Clicking open a tweet in a file on a disk from which the tables were produced does show what the receiver of the tweet or a person looking for the tweet would see if they are connected to the internet.

The screen displays much more information than the printed charts contain: the layout of the tweet, information about whether it was retweeted, received or favoured, links to attachments that accompanied the tweet and, importantly, other tweets that reply to or reference the tweet after it was sent in addition to showing some tweets in a person’s account that preceded or followed the tweet in question. This method of proving the tweets raises evidentiary issues. They are • the proof that Mr.

Elliott sent the tweets that the prosecution attributes to him; • which tweets are in evidence; and • what use the Court can make of the tweets. The proof that Mr. Elliott sent the tweets attributed to him Mr. Elliott submits that as there is no evidence from Twitter or from an expert in Twitter or the Sysomos software able to vouch for the accuracy of the tweets attributed to him, the Crown has not proven that he sent the tweets, and therefore the DVD and the printouts allegedly containing the tweets contain hearsay evidence.

The contents of the tweets are not hearsay, and the Crown is not producing the tweets to prove the truth of their contents. Some tweets contain insulting allegations and descriptions of the complainants, some of the defendant. Many are unprovable in that the content consists of opinion. Indeed, this is one of Mr. Elliott’s contentions. This distinction between proof of contents and proof that something was said is fundamental. Justice Charron in R. v.

Khelawon stated, [13] At the outset, it is important to determine what is and what is not hearsay. … The essential defining features of hearsay are therefore the following: (1) the fact that the statement is adduced to prove the truth of its contents ….” The purpose for which the out-of-court statement is tendered matters in defining what constitutes hearsay because it is only when the evidence is tendered to prove the truth of its contents that the need to test its reliability arises.

While the disks and printouts are not hearsay with respect to the content of the tweets, because they do not purport to prove the truth of the content, they are hearsay insofar as proving that the tweet was sent by Mr. Elliott. P.C. Dayler and Det. Bangild testified that the Sysomos software is reliable and that they have used it in the past to call up tweets that were sent and received. This is evidence, though not sufficient, that these tweets were sent from the accounts of the specified handles on the reported date and time, and the tweets said what was introduced into evidence.

But this evidence does not stand alone. In the middle of their Twitter exchanges, Mr. Elliott met Ms. Guthrie for dinner and exchanged emails with her. Tweets from the handle attributed to Mr. Elliott by the complainants refer directly to the dinner. This is evidence that the person who had dinner with Ms. Guthrie sent those tweets. And Ms. Guthrie identified Mr. Elliott in court as the person she had dinner with. Once the handle is proven to be Mr. Elliott’s, and one tweet from that handle shows up in the Sysomos search, that is sufficient to prove that he sent all the others that the search yields.

There is no evidence that anyone else had access to Mr. Elliott’s handle or could access his account. As soon as one tweet on the disk with the Sysomos search results and in the printout is confirmed, it is not necessary to prove each and every one. The hearsay complained of next is the information on the disk resulting from the Sysomos software that the sender sent the tweets on the time and date specified. A tweet from April 19 refers to the dinner the night before, as does an email from Ms. Guthrie.

As both officers testified that they have used the Sysomos software in the past and that it reliably yields tweets that have been sent, I see no reason to question any of the other tweets with regard to dates. As the late great evidence scholar Ronald Delisle would point out, the location of the hands on a clock may be hearsay, but we accept a witness testifying to the time from having looked at them. I find that Mr. Elliott sent the tweets listed on the dates referred to in Exhibit 2, the disk and printout. This leads to another of Mr.

Elliott’s arguments about the prosecution’s evidence of the tweets: the possibility that they have been changed since they were sent. Indeed, the court must be vigilant when dealing with the internet that the material reported to be on it has not been altered. As Justice Trotter said about photographs on the internet in R. v.

Andalib-Goortani , [14] Materials taken from websites and offered as evidence in court must be approached with caution, especially in a case such as this where no one is pre​pared to step forward to say, “I took that photo and it has not been altered or changed in any way.” Several U.S. cases warn about the possibility of tampering in this context. Commenting on the same case, Professor David Tanovich also warns of changes in internet evidence. [15] Indeed, the prosecution’s case not only relies on the tweets listed on the disk but on the judge being connected to the internet in order to view the exhibits!

Even if there is no concern about tampering with the tweets that were presented to the police as discussed in relation to photographs in R. v. Andalib-Goortani , it is possible that the evidence can change between the time that the defendant is charged and the different stages of

the trial. The prosecution’s reliance on evidence extracted from the internet led to two dramatic demonstrations of how the risk of a changing evidentiary foundation during the course of a trial can arise with internet evidence. At one point during the testimony of Ms. Reilly, Crown counsel tried to open the link to one of the tweets on the disk and could not because Ms. Reilly had locked her account and made it private the day before she testified. Therefore the Crown, the police, the Court and the defendant could only see a screen that said, “Sorry: you’re not authorized to see the status.” Ms.

Reilly unlocked her account and the trial continued. The problem arose again after presentation of the evidence concluded. Defence counsel attempted to open the links of the tweets on the disk to the internet so that he could prepare his submissions, only to discover that Ms. Reilly had again locked her account. Crown counsel quite reasonably acknowledged the problem and took on the task of opening every tweet in the exhibits and printing them, so that the court had the tweet, at the time that Det. Bangild obtained it using the Sysomos software, opened as it would have appeared to the person receiving it.

These tweets were then printed and entered as exhibits, the third version of Exhibit 2: the bound, blue-covered volumes. No suggestion was made by the defence or the Crown that anyone altered the contents of the tweets between the tweet being sent and the Crown printing them. Thus the tweets were frozen and made permanent, at least as they appeared at the time that Crown counsel printed them.

However, as some of the tweets include links to articles or other sites on the internet, the Court would still need to be connected to the internet to access the tweet in context, as described above – if the items linked to still existed, given P.C. Dayler’s testimony that a Sysomos search does not capture attachments. But for the most part, printing the full tweets solved the problem of the evidence changing and access to the evidence depending on decisions taken by the account holder outside the trial. However, the printed versions highlight another of Mr.

Elliott’s attacks on the manner in which the tweets became evidence: the selective nature of the relevant tweets resulting from Det. Bangild’s search method. Det. Bangild searched only tweets sent by the defendant with the complainants’ handles, those sent by the complainants with the defendant’s handle, plus certain tweets by the defendant using specified hashtags. He did not include any tweets sent by any of the three that did not use one of the other two handles or, in the case of Mr. Elliott, the chosen hashtags.

However, the printed tweets do show some tweets in the sender’s account close in time to those on the disk – whether from the complainants, the defendant or others – that appear to form an exchange. The defendant takes the position that only the tweets that the witnesses have “authenticated” (by which he means “confirmed receipt” or “confirmed sending”) are evidence. As stated above, I do not agree with this, and the Crown has proven that the tweets on the disks were sent (but did not prove the truth of their contents).

On the other hand, the defendant argues that the proven tweets do not give the full picture of the Twitter action – i.e., do not provide “all the circumstances” as set out in the charge – and indeed tried to introduce tweets sent by others through cross-examination of the complainants. The Crown objected and I allowed the objections, as the witnesses could not know anything about them. However, I agree with the defendant that I cannot fully understand all the circumstances within the meaning of s. 264 with respect to the proven tweets without seeing the tweets that precede them on the printed-out page.

When other tweets appear on the page of the printed tweets, which are in the end the exact product of the Sysomos search, they are then as much a part of the evidence as the original tweets. Their provenance and date are proven just as much as the main tweet that led to the result that Det. Bangild obtained. There is no difference between them and the searched-for tweets, even if no witness has confirmed that they were sent. It is not relevant whether the Crown and the defendant agreed that the only tweets in evidence are those authenticated in the ways that the parties have defined.

If I cannot give meaning to the content of an introduced tweet without resort to other tweets that appear when the link is open, then the meaning of that tweet cannot be fully understood. The Crown relies on Mr. Elliott’s tweets to show that he was repeatedly communicating, that what he was repeatedly communicating harassed the complainants and caused them to have a reasonable fear for their safety, and that he knew that they were harassed. I agree with the defendant that the case falls if only the tweets that Det. Bangild searched are in evidence.

The Crown will then have failed to prove the circumstances of the case necessary for the Court to assess whether the elements of the offence have been proven. The correct solution to this, now that the tweets have been brought up and printed and made exhibits, is to consider any relevant tweets that shed light on the tweets proffered as proof of the offence. There is evidence that important tweets were not picked up by the Sysomos search and thus that this concern of the defence was not unfounded, which is one circumstance of this case. With two examples I will explain how they enter into evidence.

On August 12, Ms. Reilly retweeted a tweet from @tapesonthefloor: “RT @tapesonthefloor Given that my ‘#TOpoli strategies’ involve #WiTOpoli being able to contribute unharassed, @greg_a_elliott, you’re not actually that far off.” The Sysomos search captured Ms. Reilly’s retweet because she sent it and it contains Mr. Elliott’s handle. During deliberations, when I attempted to open the link to this tweet on Exhibit 2, the disk from the search, I could not open the tweet. I received the message: Unable to open http://twitter.com/LadySnarksalot/statuses/234757277016543233.

Cannot locate the internet server or proxy server. I do not know if this is because Ms. Reilly locked her account, as happened during the trial – thus the third dramatic incident in this trial – or because of another problem. In any event, that means Exhibit 2 is defective as a permanent exhibit and I must rely on Exhibit 2b, the tweets as printed in the blue volume.

In the expanded 2b is a tweet from @tapesonthefloor with Ms. Reilly’s avatar cartoon below it and “1 Retweet”. Below that tweet is a tweet from Mr. Elliott: “@tapesonthefloor @rachelmack @amirightfolks You have accomplished nothing, and you will fall. Enjoy your AIDS, #TOpoli faggots.” [After delivering these reasons, I was advised that this tweet did not come from any Twitter account proven to be Mr. Elliott’s. It follows that there is no evidentiary basis for stating that Mr.

Elliott sent a homophobic tweet, used homophobic language or was homophobic, notwithstanding subsequent references to this tweet.] According to the search criteria this should have been captured in the search for tweets involving Ms. Guthrie because it contains her handle correctly spelled. But it is nowhere in Exhibit 2a (the table) nor in the expanded blue volume of 2A. The second example arose in cross-examination. It is a tweet from Mr. Elliott to Ms. Guthrie: “@amirightfolks Sorry. But if you use that libel and hostile #GAEhole hashtag, I see it.

Please stop harassing me pretending to be harassed.” This tweet preceded one from Ms. Guthrie telling Mr. Elliott to stop contacting her, an important tweet in the case. Crown counsel took the position in reply submissions that as the tweet is in Exhibit D, a lettered exhibit, it is not in evidence. But Ms. Guthrie agreed in cross-examination that she would have seen it because she replied to it. So the tweet is in evidence even if it is not in the exhibit. But it is not in the Sysomos chart 2a or the expanded tweets of 2a that I could see.

The Omission of Recklessness from the Charges Although s. 264 prohibits certain conduct “knowing that another person is harassed or recklessly as to whether the other person is harassed”, both counts allege only “knowing” – that is, only that Mr. Elliott knew that Ms. Guthrie and Ms. Reilly were harassed. Recklessness is a specific mental state that differs from knowledge as a form of mens rea . Only four charges in the Criminal Code make recklessness an element of the offence. Mr. Elliott was never arraigned on a charge alleging that he was reckless, and pleaded not guilty only to the counts as they now read.

At the conclusion of the evidence, both parties made submissions in writing. Both referred briefly to the mental element of recklessness as if it were charged when it was not. When the trial continued with oral submissions on July 14, 2015 – 18 months after the trial began and more than 30 months after the charge was laid – I drew the omission to the attention of both counsel. At the conclusion of oral submissions when I adjourned the case for judgment, both parties agreed that I would determine the significance of the failure to allege recklessness. After deliberations, I determined that Mr.

Elliott could not be convicted on the basis of a mental element that was not alleged when he entered his plea. I further considered my obligation under s. 601(3) of the Criminal Code to amend the charge at any stage of the proceedings if it appeared that the indictment (in this

summary conviction case, the information) fails to state or states defectively anything that is requisite or is in any way defective in substance. I advised the parties of this on August 4, 2015. Mr. Elliott submitted that it was too late to amend the information, that he did not consent, and that his position was the proposed amendment could not be made without injustice being done. I then indicated that I was not inclined to amend the information on my own motion in the absence of consent, and did not do so.

Crown counsel then advised that she would consider her position and the next day applied to amend the information under s. 601 on the grounds that it defectively stated one form of the mental element requisite to constitute the offence. I subsequently heard more fulsome submissions on the operation, meaning and application of s. 601 of the Criminal Code to the circumstances of this case. The relevant parts of s. 601 of the Criminal Code read: 601.

(1) An objection to an indictment preferred under this Part or to a count in an indictment, for a defect apparent on its face, shall be taken by motion to quash the indictment or count before the accused enters a plea, and, after the accused has entered a plea, only by leave of the court before which the proceedings take place. The court before which an objection is taken under this

section may, if it considers it necessary, order the indictment or count to be amended to cure the defect.

(2) Subject to this section, a court may, on the trial of an indictment, amend the indictment or a count therein or a particular that is furnished under

section 587, to make the indictment, count or particular conform to the evidence, where there is a variance between the evidence and (

a) a count in the indictment as preferred; or (

b) a count in the indictment (

i) as amended, or (ii) as it would have been if it had been amended in conformity with any particular that has been furnished pursuant to

section 587.

(3) Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or a count therein as may be necessary where it appears (

a) that the indictment has been preferred under a particular Act of Par​liament instead of another Act of Parliament; (

b) that the indictment or a count thereof (

i) fails to state or states defectively anything that is requisite to constitute the offence,

(ii) does not negative an exception that should be negatived, (iii) is in any way defective in substance, and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial; or (

c) that the indictment or a count thereof is in any way defective in form.

(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider (

a) the matters disclosed by the evidence taken on the preliminary inquiry; (

b) the evidence taken on the trial, if any; (

c) the circumstances of the case; (

d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or (3); and (

e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to (

a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any; or (

b) the place where the subject-matter of the proceedings is alleged to have arisen, if it is proved that it arose within the territorial jurisdiction of the court.

(5) Where, in the opinion of the court, the accused has been misled or prejudiced in his defence by a variance, error or omission in an indictment or a count therein, the court may, if it is of the opinion that the misleading or prejudice may be removed by an adjournment, adjourn the proceedings to a specified day or sittings of the court and may make such an order with respect to the payment of costs resulting from the necessity for amendment as it considers desirable.

(6) The question whether an order to amend an indictment or a count there​of should be granted or refused is a question of law.

(7) An order to amend an indictment or a count therein shall be endorsed on the indictment as part of the record and the proceedings shall continue as if the indictment or count had been originally preferred as amended.

(8) A mistake in the heading of an indictment shall be corrected as soon as it is discovered but, whether corrected or not, is not material.

(9) The authority of a court to amend indictments does not authorize the court to add to the overt acts stated in an indictment for high treason or treason or for an offence against any provision in sections 49, 50, 51 and 53.

(10) In this section, "court" means a court, judge, justice or provincial court judge acting in

summary conviction proceedings or in proceedings on indictment.

(11) This

section applies to all proceedings, including preliminary inquiries, with such modifications as the circumstances require. Mr. Elliott opposed the application to amend on two grounds: that the

section has no application because the prerequisites of s. 601(3) have not been met, and that consideration of the factors in s. 601(4) militate against allowing the amendment. I begin with the first argument since if Mr. Elliott is correct that the

section does not apply, that will end the matter. He relies on R .v. McConnell , [16] in which the Crown sought an amendment that it did not need at the outset of the trial concerning the make of a car in a motor vehicle offence. The defence did not consent and the trial judge dismissed the application to amend. The Crown called no evidence. Though the facts in McConnell are very different from this case, Justice Rosenberg made several statements that offer guidance in interpreting s. 601(3) .

As to whether there was a defect in the information’s form, he stated: “The cases are remarkably unhelpful as to what constitutes a defect in form or substance.” But he determined that however a defect in form or substance was defined, the information was not defective because it alleged offences known to law and complied with the sufficiency requirement of s. 581. Here too, the counts are not deficient within the meaning of s. 581, and they disclose offences known to law. They are not defective in substance.

The question remains whether they “fail to state or state defectively anything that is requisite to constitute the offence.” In one sense they do not, for the same reasons that they are not defective in substance. They are perfectly good counts. Nor do they fail to state something that is requisite to constitute the offence: every element of the offence is present including the mental element. But the counts do state the mental element defectively. They entirely omit one way in which the requisite mental element of the offence could be committed if the

section had been charged in full. Therefore I do not accept the argument that s. 601 is not even engaged. It is. There is also no question that the information can be amended at this late stage in the trial, that is after the completion of submissions and adjournment for deliberations. Subsection 601(3) refers to “any stage of the proceedings”. And, that includes as late as an appeal, as in R. v. Irwin . [17]

In Irwin , Justice Doherty was dealing with the power of the Court of Appeal to amend under s. 683. Justice Doherty had occasion to comment, though not directly, on amendments under s. 601(3) of the Code . He stated, at paragraph 18: Elliot [18] stands for the proposition that the court cannot substitute one charge for another under the guise of amending a defect in substance when the charge as initially laid was not defective in substance. Elliot does not address the question of the power to amend to make a charge conform to the evidence.

That power of amendment is distinct from the other powers of amendment set out in s. 601 in that it is not premised on any defect in the language of the charge as initially laid, but rather on a divergence between the charge as laid and the evidence as led . (Italics and citation added.) As Justice Rosenberg stressed in McConnell and as the

section states, the matters to be alleged in the amendment must have been disclosed by the evidence under s. 601(3). If that prerequisite is met, I must again, following the word “shall” in s. 601(4), consider the five factors in the subsection. This means that despite the mandatory nature of the word “shall”, subsection (3) – which begins with “subject to this section, a court shall…” – is qualified. Thus, even if the prerequisites are met, a court is not required to amend the information but must still consider “whether or not an amendment should be made” after considering the factors in s. 601(4) (

a) to (

e) set out above. In this case, Mr. Elliott concedes that he has not been misled or prejudiced in his defence within the meaning of s. 601(4)(d), but does argue that recklessness has not been disclosed by the evidence at trial under s. 601(3), which is the requirement for the amendment. He further argues that in the circumstances of the case referred to in s. 601(4)(

c) and having regard to the merits of the case, making the amendment would cause an injustice within the meaning of s. 601(4)(e). I begin with whether the matter to be alleged in the proposed amendment is disclosed by the evidence. This proposed amendment and this case differ from the examples in which other courts have exercised the power regarding a fact such as a vehicle or a date that can easily be identified. This case involves a long trial in which the matter to be alleged is the specific mens rea of recklessness in a circumstantial case with regard to the accused’s state of mind.

Very recently, after the amendment issue arose here, Justice Caldwell of the Sask​atchewan Court of Appeal thoroughly analyzed s. 603 of the Criminal Code . In R. v. Koma [2015] S.J. 420 he wrote: [19] 40 In the first two circumstances, by returning to the modern principle of statutory

interpretation (Re Rizzo , para. 21), I conclude that, on their plain and ordinary meaning, the words used in ss. 601(3)(b)(

i) and (iii) suggest the following: … "where it appears", i.e., it need only seem apparent to the court; … "and the matters to be alleged in the proposed amendment are dis​closed by the evidence taken on the preliminary inquiry or on the trial", i.e., the offence alleged, when properly plead in the indictment or count, must be made out on the evidence taken on the preliminary inquiry or adduced at the trial of the accused. Therefore, the prerequisite is only that the matters to be alleged in the proposed amendment seem apparent. Justice Caldwell’s comment that the offence alleged must be made out on the evidence cannot mean that it must be proven because the

section says “disclosed”. And the evidence need not be specific because the

section says “the matters” (the French “les choses”). Nothing could be broader. Asked in submissions, Crown counsel did not specify any evidence referring to recklessness apart from the evidence as a whole. In written argument, she addressed knowledge and recklessness together. She submitted that Mr. Elliott knew that the complainants were harassed, or he was reckless or wilfully blind as to whether the complainants were harassed. She submitted that after he was aware that they had blocked him and wanted him to stop contacting them, he continued to send them a barrage of tweets or tweeted incessantly about them.

She further submitted that his conduct prior to the period of alleged harassment was relevant to his mens rea . The matter to be alleged is the whole case; there is no evidence of Mr. Elliott’s state of mind apart from his communications to the complainants and theirs to him. Added to that is that those communications are in a modern social media with specific and complex language and methods.

In other words, in order to determine the prerequisite of subsection (3)(b) – whether “the matters to be alleged in the proposed amendment are disclosed by the evidence taken” – I was required to review the whole case as if the amendment were accepted. The application to amend, brought during deliberations, is not the place to decide whether this evidence establishes recklessness beyond a reasonable doubt. It need only be apparent that the recklessness alleged in the proposed amendment be disclosed by the evidence at trial. I find that it is apparent and that the requirements of s. 601(3)(

b) are present. I turn to s. 601(4). The circumstances of the case include Crown counsel’s candid submission during the argument on this application that her primary position is and has always been that Mr. Elliott knew that the complainants were harassed. In view of this, I turn to the final day of the trial, July 14 (mentioned above), when oral submissions complemented the written submissions of the parties. In written submissions, Crown counsel had combined knowledge and recklessness, relying on the complainants blocking Mr.

Elliott and his barrage of tweets to argue that he was aware that both complainants wanted him to stop contacting him. Mr. Elliott addressed recklessly directly, arguing that the Crown had not proven that he was aware of any risk that the complainants were harassed. Crown counsel, prior to the Court raising the issue of the counts making no reference to recklessness, in written reply took the position that Mr. Elliott was not reckless. This was corrected orally to read that he knew that the complainants were harassed but that if he did not know, he was reckless.

It was at that point that both counsel agreed to leave the issue of the count to the Court. No application for an amendment was brought and there was no request for an adjournment to consider such a step. The Crown’s application for amendment followed the Court raising the matter during deliberations, as I have outlined.

Those are relevant circumstances under subsection 601(4)(c). Subsection (

a) has no application, and I have addressed the evidence on the trial when discussing s. 601(3)(b). As regards s. 601(4)(d), Mr. Elliott concedes that he was not misled or prejudiced in any way by the omission of recklessness from the count; he cannot point to anything he would have done differently in the trial. Although I must consider all the factors in s. 601(4), judicial authority gives such pre-eminence to this one so as to make it almost determinative. So in R. v. Coté , Chief Justice Lamer, as he then was, stated: [20] Where a charge is reparable, you repair.

To the extent that the evidence conforms with the correct charge and the appellants have not been misled or irreparably prejudiced by the variance between the evidence and the informations, the defect can and should be remedied. In Irwin , supra , Justice Doherty held: [21] In my view denying the power to amend to substitute a new charge where the substitution could not prejudice the accused … would be an unwar​ranted windfall for the accused. And at paragraph 52, Justice Doherty referred to prejudice being the litmus test against which all proposed amendments are judged.

Turning to s. 601(4)(e), “injustice” must mean something different from “prejudice” in subsection (

d) on the principle of statutory

interpretation that Parliament does not make the same point twice. [22] As for the merits, this case is circumstantial with respect to state of mind, which may or may not result in proof of knowledge. If knowledge is not established beyond a reasonable doubt, Mr. Elliott must be acquitted unless the counts are amended to include recklessness, in which case the Crown may establish mens rea . There is the possibility of a perception of injustice. Also in Irwin , Justice Doherty cites Chief Justice Laskin in R. v.

Elliott that “It is the responsibility of the Crown and not the court to settle the charge which will be brought against the accused.” [23] Mr. Elliott could be found guilty on a charge that was amended only after the Court intervened after having adjourned for final deliberations. This, as Mr. Elliott argues, is late. The charge could have been laid without the defect, it could have been amended on arraignment or at the completion of the evidence, and this application could have been brought when I first inquired about the absence of recklessness at oral submissions on July 14, 2015.

An accused should face only one prosecutor, and a judge should never be seen to be aiding the prosecution’s case. To amend at this late stage could have an impact on the appearance of justice that is so crucial to every criminal proceeding, and that would cause an injustice. However, it would be appearance only, because there is no prejudice. And the perceived injustice is not related to the merits of the case, but the manner in which the amendment came about. The Criminal Code specifically provides for that, and directs me to amend. Had Mr.

Elliott’s counsel pointed to one strategic decision or question on cross-examination, or one decision to call evidence that was different because recklessness was not alleged, I would not have allowed the amendment. But he did not because he could not; that is why there is no prejudice. So considering all the factors in s. 601(4), I amend the counts to add “or recklessly as to whether each complainant is harassed” after the word “harassed” and endorse the information according to s. 601(7). FACTual Background @amirightfolks – Stephanie Guthrie Mr. Elliott’s interactions with Ms.

Guthrie I begin with detailed reference to the communications only as needed to explain the background. Later, I will return to certain tweets that are alleged to be part of the criminal harassment. The interaction with Ms. Guthrie has three broad phases: the initial meeting and cooling off, then things taking “a bad turn” (in her words), and finally a period of no contact followed by tweets that led Ms. Guthrie to the police. Ms. Guthrie is a community activist and organizer. A main focus of her work and life is women’s interests, rights and safety. Twitter is an essential part of her life.

She uses it to meet people who share her interests and contribute to the causes she works for and to obtain paying work for herself. She or others who were active with her created several hashtags. The important ones in this case are: #WiTOpoli – Women in Toronto Politics #DEPUparty – set up to discuss “deputing” to city councillors #AOTID – created for an Academy of the Impossible event #TBTB – Take back the block After she created the #WiTOpoli hashtag, Ms. Guthrie looked for a graphic designer for events that the WiTOpoli group was planning, particularly to design a logo and a poster.

She tweeted the request and although that tweet is not in evidence, she believes that Mr. Elliott

approached her through Twitter. They met for dinner at a restaurant on April 18, 2012. The dinner was affable. From the conversation at dinner, having only Ms. Guthrie’s recollection, one possibility is that Mr. Elliott was interested in a friendship or more. He persisted in asking to drive her home after she declined. There was some after-the-fact recolouring of this dinner by Ms. Guthrie, given what occurred later. She said she did not get a “great vibe” from Mr. Elliott, and his eyes made her feel “creeped out.” She felt uncomfortable as he repeatedly leaned across the table.

She not only refused to accept a ride from him but would not accompany him to his car to look at a sample poster of his. So he went and got it. In any event, the dinner was unremarkable. It was about what it was supposed to be about, and happened well before the tweets began that gave rise to the charges. I dwell on it to provide context for the subsequent email and Twitter exchanges. Asked about another possible meeting, Ms. Guthrie could not recall it but did not say it didn’t occur. I also dwell on the aftermath of the dinner.

This is not because their rapport was good at this time; good relations never preclude criminal harassment when things turn bad. It is because the email exchange provides information about how both Ms. Guthrie and Mr. Elliott write and express themselves, how Ms. Guthrie perceives and characterizes her own use of language, and how she absorbs and characterizes Mr. Elliott’s behaviour and language. Between dinner and the next morning, Ms. Guthrie learned that someone else in her group knew a graphic designer who needed work and was eager to help. She emailed Mr.

Elliott, thanking him for meeting her at dinner and telling him that she was in love with his poster work and ideas. She thanked him for some gift and wrote that she really enjoyed the conversation. She said that she really looked forward to working with him. She asked if he would do the poster after the other person did the logo. She signed off with “Best, Steph.” Mr. Elliott replied later in the afternoon. He declined the suggestion that he do only the poster, saying that one person should do both the poster and the logo.

He described his efforts that day to price the poster and asked her to let him know what her group decided, as if the issue were still open. He signed his email: “Love.” Ms. Guthrie replied within three hours. She told Mr. Elliott that he was “too kind” and “awesome” and that his view that the same person should do both poster and logo made sense. She suggested a competition and asked for a week to decide. She signed with an “x” and an “o”, meaning a kiss and a hug respectively. This did not meet with Mr. Elliott’s liking. He declined to compete with the other designer.

He said that since he was offering his work for free, a competition was almost as bad as two designers working on one poster. Mr. Elliott wrote: “Competing also means I may put a lot of time into something that helps no one if it isn’t selected for ‘political’ reasons :-).” This last punctuation is common enough for me to take notice that it depicts a little face with a smile, a smiley face. He asked her to discuss his idea and concerns with her group and signed off with “Love.” The next day, April 20, Ms. Guthrie answered that her group had decided to use the other artist. She was strongly complimentary to Mr.

Elliott. She said she appreciated his time and offered to credit him for his creative contribution. She apologized that it didn’t work out for him, and thanked him for his “enthusiasm for and support of Women in #TOpoli”. Mr. Elliott replied politely, saying, “Maybe next time,” and signed his email, “Love.” There the exchange briefly concluded; it restarted three days later. It can be inferred that Mr. Elliott contacted Ms. Guthrie because she thanked him for firing things up again and said that she would like to work together if they could. She suggested an idea; he accepted.

She said “awesome” and then he said “ok”, now signing “Greg.” Later that night she sent him some proposal, and their interchange ended peacefully and normally on April 24. The emails were not the only communication. There was a continuous Twitter relationship of sorts, insofar as Twitter lends itself to being described in those terms, starting in February 2012. Det. Bangild’s Sysomos search for tweets sent by Mr. Elliott and Ms.

Guthrie show that from February until April both were using the other’s handles in tweets, either at the beginning of a tweet to direct it to the other, or as mentions that the other would also see. In some series of tweets a direct exchange between them can be identified – not of direct messaging but of one beginning a tweet with the other’s handle. In one instance in February 2012, both Mr. Elliott and Ms. Guthrie tweeted putting the other’s handle at the beginning of the tweet. Mr.

Elliott joined a discussion that was in progress and commented on the political significance of the use of a certain type of language, and Ms. Guthrie responded in a civil manner. Given Ms. Guthrie’s testimony that Mr. Elliott approached her by Twitter about doing a poster and Det. Bangild’s evidence that he searched for tweets from one to the other, I infer that the February exchange in 2012 was the beginning of their interaction. Mr. Elliott, a stranger, joined a conversation that he saw on Twitter and Ms. Guthrie engaged. The exchange was polite.

So was the email exchange from April 20 to April 24 that I have reviewed above. Ms. Guthrie testified that she was lying to him when she called him kind and awesome, but the exchange was civil. On May 3, 2012, Mr. Elliott “fired things up again,” to use Ms. Guthrie’s words. Their exchange on Twitter is partly reflected in the tweets that are before the court – Ms. Guthrie agrees that there may have been direct messages that are not among the tweets that Det. Bangild discovered. Mr. Elliott had suggested ideas for Ms. Guthrie’s group’s meetings, and she had replied positively. In the meantime, though, Ms.

Guthrie had researched some of Mr. Elliott’s tweets. She concluded that opinions he had expressed showed that his philosophy was not compatible with her organization and that they could not use his skills.

Around that time, a news story was published in Toronto about a reporter who went to the Mayor’s house. A Twitter exchange between Ms. Guthrie and Mr. Elliott concerned Mr. Elliott using a word, either “sissy” or “pussy”, that suggested the reporter was a coward. The tweet is not in evidence, and Ms. Guthrie cannot remember the word, which she said offended her. However, that episode ended civilly also. Ms. Guthrie testified that she thought Mr.

Elliott a “creep” at their dinner in April 2012, that there was a seething anger to his emails about the artwork and that she knew from research that he had sexually harassed women, which was part of the reason she stopped him from doing the artwork. There is no apparent seething anger in Mr. Elliott’s emails, and Ms. Guthrie could not point to any in cross-examination. She agreed in cross-examination that his email after the disagreement about Mr. Elliott’s comments on the reporter and the mayor was pretty straightforward. She also agreed that when she testified to Mr.

Elliott being a creep at the dinner and that one of the reasons for rejecting his offer to design the poster and logo was his treatment of women, she may have been looking back through the lens of what happened later. That frankness enhances her credibility. Regarding the interactions until May 3, Ms. Guthrie testified that things really took a bad turn around the Bendilin Spurr incident in early July 2012, i.e., more than two months after the dinner. Until May 3, there was no criminal harassment.

The record to this date gives context for the later allegation – evidence of all the circumstances, should I need to determine the reasonableness of Ms. Guthrie’s fear – but no harassment. The exchanges until then – debate about language in February, dinner in April and negotiations about artwork, the straightforward exchange as Ms. Guthrie rejected Mr. Elliott’s offer to do artwork and falsely told him he was kind and awesome – is relevant to Mr. Elliott’s knowledge, then and later. All the evidence demonstrates that he was working from the premise that their email and Twitter exchanges were appropriate.

From May 3 to July 6 During this period, Ms. Guthrie broke her ankle. Mr. Elliott discerned from a tweet, not to him, that she was immobilized. He asked her why. She expressed no dismay that he was following her tweets, but answered. He repeatedly offered to drive her or deliver alcohol, and she repeatedly declined. He also invited her to accompany him on a drive up north. She politely declined and referred to her boyfriend, and he stopped. Mr. Elliott was obviously interested in some sort of relationship with Ms. Guthrie. But Ms.

Guthrie rebuffed him politely and appropriately despite the unsuccessful negotiations about the poster and the disagreement about the reporter and the mayor. Ms. Guthrie testified that she was not being entirely honest in her courteous emails and tweets to Mr. Elliott. She testified that she feared him from the time she had dinner with him – as being “creeped out” is a kind of fear – but that she was wrestling with her feelings given that women are criticized when they express them. The Bendilin Spurr affair Mr. Spurr, a young man from Sault St.

Marie, Ont., put a video game on the internet that permitted players to punch a prominent American feminist in the face. It was graphic in its violence. Ms. Guthrie tweeted about it on July 6 as follows: “So, I found the Twitter account of that fuck listed as creator of the ‘punch a woman in the face’ game. Should I sic the internet on him?” Apparently her followers and others who read her tweet said she should.

As she wrote later: [24] Knowing full well the can of worms I was about to open, I’ll admit my heart was in my throat as I tweeted, “Hey bendilin, do you punch women in the face IRL, or just on the internet? (This guy made the Anita Sarkeesian Face-Punch game). Others, RT” “IRL” means in real life. I set out this tweet and its introduction both to develop the narrative and to demonstrate how Ms. Guthrie uses Twitter – what she sees as appropriate and within bounds. Ms.

Guthrie sent a tweet linking his local newspaper to a story about his work, and tweeted: “Sault Saint Marie employers, if you get a resume from @BendilinSpurr, he made a woman facepunching game…” She attached an

article from the Huffington Post online site about the “sick” online game that invited users to beat up a virtual Anita Sarkeesian. Everything happened rapidly at the moment that Ms. Guthrie says was the turning point. Mr. Elliott tweeted directly to Ms. Guthrie: “@amirightfolks He’s got 11 followers. Why bring attention to the guy? Media attention will only add to more ‘virtual face punching.’” Mr. Elliott tweeted that it was revenge. Ms. Guthrie replied, putting a period before Mr.

Elliott’s handle: “.@greg_a_Elliott Because I think the Sault Ste Marie community should be aware there is a monster in their midst.” The exchange was becoming heated, but was a logical and fair debate. Ms. Guthrie had enough of Mr. Elliott, the discussion and his views. She tweeted to him: “@greg_a_elliott If you think it’s revenge, you’re not paying attention. I’ve had it with you@rachelmack@emmamwoolley@sysrequest@metricjulie.” She then blocked him from sending tweets to her. Mr. Elliott knew he was blocked because he tweeted: “@amirightfolks Next step may be to unblock me and refollow?

I’m not the misogynist game creator you’re looking for, why punish me.” He then included the smiley face and the hashtag #love. Just prior to the Bendilin Spurr dispute flaring up between Ms. Guthrie and Mr. Elliott, and a week after she had shut down Mr. Elliott’s

advances by referring to her boyfriend, Ms. Guthrie and Mr. Elliott had exchanged tweets about Greece and panhandlers that involved putting the other’s handle first or in a list at the beginning of the tweet. Mr. Elliott, up to the flare-up, could not have known that Ms. Guthrie was harassed or wanted no contact with him. Quite the opposite. And on the day that she said that she had had it with him, there was a spirited discussion about the strategy used against Bendilin Spurr. Ms. Guthrie tweeted in response to someone who had tweeted to her and Mr. Elliott, “I don’t want him destroyed”; to others including Mr.

Elliott, “I want his hatred on the Internet to impact his real-life experience.” Fr

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