05/02/2020 2016 ONCJ 35 (CanLII) | CanLII The mens rea of the offence is the intention to engage in the prohibited conduct with the knowledge that the complainant is thereby harassed.[25] So the knowledge that the other person is harassed presumes a knowledge that the other person is harassed by the sender’s communication. I propose to deal with the elements of the offence separately for Ms. Guthrie and Ms. Reilly because the facts are different, their relationships with Mr. Elliott were different, and so were the contents of his communications. But since the issues regarding Twitter are generally applicable, I will first discuss communication on Twitter, freedom of expression and hashtags. Communication on Twitter Twitter is a public forum; Ms. Guthrie compared it to a public square. You can communicate privately on it, and people do, but it is difficult. If you simply tweet, anyone who follows you can read it and anyone who doesn’t follow you can read it on the internet so long as they have a twitter account and yours is not private. If you address the tweet to someone by putting their handle first in the tweet, not only they will see it but those who follow their feed can see it as a tweet that they receive. If you mention someone’s handle in the text, then they will be notified even if the tweet is to someone else. You can’t talk about anyone using their handle without them seeing your tweet (unless they have blocked you). Only if you and your correspondent direct message each other can you have a private conversation over Twitter, by addressing tweets to each other and not mentioning any hashtags or other handles. Furthermore, it is internet communication: a permanent written record of the conversation may be created, as the Sysomos software produced in this case. In another context, that of the state recording a private communication without consent, the Supreme Court of Canada has recognized a conceptual difference between a conversation that is recorded and one that is not regarding expectation of privacy. [26] Everything militates against using Twitter as private communication and in favour of using it as a public forum, which is how Twitter self-defines and what it is. Tweets go to anyone who wants to read you by any method. Referring to other’s handles spreads the tweet. Putting a period before the recipient’s handle permits either everyone or at least the recipient’s followers to read it (on this point the evidence is not clear). Mentioning anyone else by their handle sends it to them. If anyone who receives it retweets it, then it may spread in the same way among the retweeter’s followers and then their followers. Pyramid and chain-letter metaphors come to mind; this is the very signal boosting that Ms. Reilly explained and that the complainants and Mr. Elliott engaged in. Freedom of expression Freedom of expression as a long-enshrined part of Canadian life and law preceded it being enshrined in s. 2(b) of the Charter of Rights and Freedoms. Sharpe and Roach succinctly summarize the scope of freedom of expression in their book The Charter of Rights and Freedoms:[27] Artists and writers often push the limits of conventional values. Scholars question “sacred cows” and accepted wisdom. Freedom of expression represents society’s commitment to tolerate the annoyance of being confronted by unacceptable views. As stated by the Ontario Court of Appeal in an early Charter case “[T]he constitutional guarantee extends not only to that which is pleasing but also to that which to many may be aesthetically distasteful or morally offensive: it is indeed often true that “one man’s vulgarity is another man’s lyric”. More recently, the Supreme Court of Canada emphasized that freedom of expression must include the “right to express outrageous and ridiculous opinions” and that as “[p]ublic controversy can be a rough trade…the law needs to accommodate its requirements.” Hashtags Apart from general tweets using handles, there is the use of hashtags. Rather than tweeting to someone in particular, one can communicate with people self-chosen by their interests: the topics, conversations or ideas they follow. Thus, Twitter users can read and learn about anything that they want that has a hashtag, or start their own hashtag. Twitter is a powerful medium and gives an individual the potential to communicate with many people as if that individual had access to the mass media. As such, the individual has certain responsibilities, and must act within the law, as Mr. Elliott is charged with failing to do. However, the individual also enjoys a constitutional right to freedom of expression. file:///Users/nerissa/Downloads/Columbia CSV/R v Gregory Allan Elliott.htm 29/43