05/02/2020 2016 ONCJ 35 (CanLII) | CanLII 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. file:///Users/nerissa/Downloads/Columbia CSV/R v Gregory Allan Elliott.htm 8/43