05/02/2020 2016 ONCJ 35 (CanLII) | CanLII Did Mr. Elliott know that Ms. Guthrie was harassed? Knowledge is a state of mind. An accused’s state of mind can be proven by direct evidence, if for example he states it and is believed. This is not the case here. There is no statement or confession by Mr. Elliott that he knew that Ms. Guthrie was harassed. To the contrary, his only direct statement about harassment that was admissible was denial: “you had better make sure it is harassment and make sure that it is directed at you.” Therefore, the prosecution must prove Mr. Elliott’s knowledge by circumstantial evidence. In this it is no different from any other circumstantial case relating to an essential element of the offence. Establishing beyond a reasonable doubt that the element is proven and the accused is guilty requires not only evidence from which guilt can be inferred but evidence that excludes every reasonable inference consistent with innocence. An additional feature of the knowledge requirement in criminal harassment is that this knowledge, the state of mind of the accused, relates to the state of mind of another: the complainant, and whether she is harassed. There is no doubt that Ms. Guthrie was harassed and that Mr. Elliott must know that now, after her complaint and her testimony. But even now, what has harassed her is only the volume of tweets. There is no allegation of sexual harassment or threats, as Ms. Guthrie and Crown counsel acknowledge. Certainly anyone sending one tweet of that nature would know that the receiver would be harassed, Crown counsel would have drawn my attention to it, and likely Ms. Guthrie would have mentioned it. But Ms. Guthrie took pains to emphasize the volume. I have reviewed all tweets in the Sysomos printout, including the hashtag-based tweets, searching for such a tweet. Mr. Elliott called Ms. Guthrie a “nut-job” and once a “bitch” when he said he would have wished her well about her music that night except that she had been such a “bitch lately”. No tweets in themselves provide the basis for inferring knowledge. There is no direct communication to Mr. Elliott that Ms. Guthrie is harassed. She blocked him on July 7 but did not tell him, though he must have known because he referred to it. Only in September when she unblocked him did she tell him that she had blocked him. Ms. Guthrie assumed that he was going offline, by which she meant out of Twitter and into her public tweets. She did not consider that he was receiving her tweets from people who followed her or were not blocked, in the same way as she learned about Mr. Elliott’s tweets from her friends after she had blocked him. In any event, going off Twitter and reading public tweets was one way to get around blocking, as she described. Blocking does not work to stop the blocked person from having access to your open account. It only works to prevent you from seeing their tweets. And I do not accept that blocking someone or telling them that you blocked them a month ago communicates that you are harassed. Ms. Guthrie was not harassed on July 7, yet she blocked him. There can be many reasons for not wanting to read someone’s tweets. In this case, as I will discuss, it was in part because Ms. Guthrie thought what Mr. Elliott had to say was worthless nonsense. This may be understandable, but is not equivalent to advising someone that you are harassed. Ms. Guthrie’s next possible direct communication to Mr. Elliott that she was harassed was her tweet of September 9, in which she said she had blocked him a month ago and stated: “stopped tweeting re: yr serial harassment weeks ago”. Ms. Guthrie’s retweets in August were about Mr. Elliott allegedly harassing others and sexually harassing and “creeping” women. She was not talking about herself and testified to that effect. This is not a statement that she was serially harassed. The volume of tweets, to Ms. Guthrie, demonstrated Mr. Elliott’s obsession with her and her work. She did not specify which among many tweets harassed her, saying it was no one particular tweet. She did testify that the #AOTID tweet early in November was the catalyst (mistranscribed “ethicist”) for going to the police. Included in the volume indicating obsessiveness to her are all the tweets the Sysomos program found; those to her handle, those mentioning her handle, those retweeting tweets that contained her handle, those with hashtags she followed and those using #fascistfeminists. The accumulation without distinction is what caused her to be harassed. I will now address whether Mr. Elliott knew that Ms. Guthrie was harassed by these tweets. Until July 28, she was not afraid, nor was she harassed. file:///Users/nerissa/Downloads/Columbia CSV/R v Gregory Allan Elliott.htm 32/43