05/02/2020 2016 ONCJ 35 (CanLII) | CanLII In summary, there is no direct evidence of Mr. Elliott’s knowledge of Ms. Guthrie’s harassment. Blocking does not convey harassment; it does not work and can be done for many reasons. No one conveyed to Mr. Elliott that he was harassing Ms. Guthrie; she was leading or at the least playing a major role in calling him out for allegedly harassing women online. As for the circumstantial evidence of his knowledge, he received or saw tweets alleging that he harassed women, saying that his name attracted an expression of “Ugh” at a meeting, and that used #GAEhole, which was obviously intended to be obscene. He was also the subject of a parody account and was called a Men’s Rights Activist and a serial harasser of women for a long time. Ms. Guthrie was not responsible for all this, but was involved in everything but #GAEhole. His tweets, though obscene and homophobic in at least two instances, never threatened or were sexual. He exercised his right to tweet and to use public hashtags. And the volume of tweets that harassed Ms. Guthrie included permissible comment by Mr. Elliott and tweets using hashtags that Ms. Guthrie helped create and followed. To return to Justice Proulx, “one can hardly impute to him knowledge of a state of being which he is not the cause of.” (“on pourrait difficilement lui imputer une connaissance d’un état dont il n’est pas responsable.”) Given his correct view that he was allowed to do this and her continued efforts to call him out for his behaviour, I cannot infer that when he tweeted he knew that she was harassed by anything he was responsible for. The circumstantial evidence of his knowledge does not prove that he knew she was harassed beyond a reasonable doubt, because it does not exclude reasonable inferences consistent with innocence. Recklessness As there is no proof beyond a reasonable doubt that Mr. Elliott knew that Ms. Guthrie was harassed, I turn to recklessness. This is an entirely different mental state than knowledge. It requires only awareness of the risk and then persistent conduct despite the risk. It is less onerous for the prosecution to establish. But it still requires Mr. Elliott to be aware that something he is responsible for is harassing a person, as in my analysis of actual knowledge. To adapt what Justice Berger said in Sillipp, that which is prohibited is Mr. Elliott repeatedly communicating, reckless as to whether or not his conduct is causing Ms. Guthrie to be harassed. Awareness of the risk is still a state of mind to be inferred from the evidence. The accusations that Mr. Elliott harassed women online were, quite simply, nearly unanimous from those he was fending off and attacking, whom he grouped as #FascistFeminists. He did not have to accept their accusations and most certainly did not. Ms. Guthrie never said that he was harassing her in so many words, as I found in discussing knowledge. And he vehemently denied that he had ever sexually harassed her and defied her to provide an example. But as for harassment from his communication with her using her handle, he was aware that she did not want to hear from him. He exercised his right to keep referring to her. But he had to be aware that there was a risk that he was harassing her. Also, he persisted in sending indirect communications. I do not include his use of hashtags, given my findings that they should not be treated as direct or indirect communication absent proof of intention to use them for that purpose. But he was confident in his knowledge of what amounts to harassment, as he made clear in his comment using #16days: "you better be damn sure it's harassment, and, it is directed towards you." I am not talking about criminal harassment in all of its elements but the word in its ordinary meaning, the part of the actus reus to which knowledge and recklessness must attach. There was an overwhelming risk that Ms. Guthrie was harassed by his tweets that mentioned her handle or referred to her. It does not matter for the purpose of assessing recklessness whether she was wrong about her right to stop others from sending tweets that might reach her or that a court might ultimately find that she was wrong and he was right. He was aware of the risk and he took it. Recklessness has been established and there is no need to consider wilful blindness. I therefore turn to Ms. Guthrie’s fear for her safety. Fear for her safety Ms. Guthrie testified that she felt harassed from when her dispute with Mr. Elliott turned serious in August. She said that the tweets between August and November in which he used a hashtag that she had created file:///Users/nerissa/Downloads/Columbia CSV/R v Gregory Allan Elliott.htm 36/43