05/02/2020 2016 ONCJ 35 (CanLII) | CanLII 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 file:///Users/nerissa/Downloads/Columbia CSV/R v Gregory Allan Elliott.htm 11/43