05/02/2020 2016 ONCJ 35 (CanLII) | CanLII was associated with an event that she organized. She did not say that she invented it, but that she or someone in her group did. It is difficult to situate a hashtag in Twitter. Neither party to this trial argued by analogy, and I can find no exact one. But courts must attempt to apply existing concepts to changing technology or develop new ones to deal with it. For example in R. v. Vu,[28] the Supreme Court of Canada had to decide whether for the purpose of search warrant law, a computer was like a drawer or cupboard in a place covered by a warrant to search the place, or was a separate place itself. In one sense, creating a hashtag for an event on Twitter is similar to announcing a public meeting. Being public, it is not subject to restriction by the organizers as a private meeting would be; the only restriction is that those attending obey the law. But one’s very attendance at a public meeting cannot be deemed a violation of the law that is then used to bar entry. Similarly, the only restriction on tweeting a hashtag created for a specific event is that the Twitter account holder not break the law. The potential diffusion of ideas that a hashtag holds could also be analogized to a billboard or an orator with a loudspeaker at a street corner. They can spread their ideas broadly and someone specific may hear them if they pass by. If the renter of the billboard or the orator knew that a specific person would have to pass by to go to work, and erected the billboard or delivered the speech for that reason, the general communication could be intended communication with a specific person. This is how Ms. Guthrie viewed Mr. Elliott’s use of #AOTID: as tweeting with a hashtag that was meant for her and likely to reach her. Tweets that use hashtags that anyone may or may not read or see, if they are for the purpose of communicating legally, should not be included as the communications referred to in subsection 264(2)(b) because that presumes that tweeting a hashtag carries with it the intention that a particular person see it. And that is the communication contemplated by s. 264(2)(b). As I have noted, none of the appeal court cases have dealt with s. 264(2)(b) except Rybak, and in that case the communication and intention to communicate was obvious from the visits and the deliveries. However, if it can be proven that a person used a hashtag with the intention that someone who followed or had to follow it would read it, that would come within the meaning of communication in s. 264(2)(b). It would lose its distinction and become like any other communication.   ANALYSIS: Stephanie Guthrie I return to the elements of the offence as they apply to the circumstances of this case. Repeated communication Every time that Mr. Elliott started a tweet with Ms. Guthrie’s handle or mentioned Ms. Guthrie, he communicated with her directly. When he tweeted mentioning her handle, he knew that it might be brought to her attention. Even after she blocked him, his perception that she was part of a group proves he knew tweets with her handle would reach her. I therefore find the repeated communication that the section requires. Was Ms. Guthrie harassed? I accept that Ms. Guthrie was sincerely harassed within the meaning of the Criminal Code as interpreted in Lamontagne and Kosikar above. She was certainly vexed, disquieted and annoyed, but Kosikar holds that this is not enough. Using other synonyms in the Court of Appeal’s resort to the dictionary in Kosikar, she was not tormented or chronically plagued. She did feel troubled, bedevilled or badgered. But harassment has an identifiable meaning without resort to the dictionary, and that is how Ms. Guthrie felt. The fact of her harassment came from different beliefs and positions that she held and the large volume of tweets that Mr. Elliott sent to her or about her. It came from her view that Mr. Elliott could not use Twitter in the way that he did. It came from her understanding that every tweet from Mr. Elliott that mentioned her was meant for her – even if it was a retweet of someone else’s tweet that had mentioned her. It came from her perception that she could tweet on topics without being exposed to what she viewed as his spurious, invalid tweets about the same topic – even if the topic was him, his online behaviour alleged or factual, his opinion on subjects she discussed, or insults to him. As for the hashtags, Ms. Guthrie’s view was that when he used one associated with her – even when exercising the freedom of discussion that hashtags permit – he was intending to communicate with her, and that contributed to the fact of her harassment. But she was harassed. file:///Users/nerissa/Downloads/Columbia CSV/R v Gregory Allan Elliott.htm 31/43