05/02/2020 2016 ONCJ 35 (CanLII) | CanLII 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 prepared 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). file:///Users/nerissa/Downloads/Columbia CSV/R v Gregory Allan Elliott.htm 10/43