05/02/2020 2016 ONCJ 35 (CanLII) | CanLII This format, in the case of the tweets searched by sender (a complainant or the defendant) that contains the other’s handle, gives the impression of an exchange when the tweets follow closely in time. Indeed Det. Bangild titled the documents “Conversation Between Stephanie Guthrie and Gregory Elliott” and “Conversations Between Reilly and Elliott.” The tweets in this form do not appear as they would to someone tweeting or looking up tweets on the internet at Twitter's site without using the Sysomos software. For one thing, the content of the tweets is sometimes garbled, as punctuation comes out as symbols in the Sysomos program. To see what the original viewers saw requires opening the full tweet. To this end, the prosecution introduced into evidence computer files on disks (DVDs) with the Sysomos software search results. Clicking open a tweet in a file on a disk from which the tables were produced does show what the receiver of the tweet or a person looking for the tweet would see if they are connected to the internet. The screen displays much more information than the printed charts contain: the layout of the tweet, information about whether it was retweeted, received or favoured, links to attachments that accompanied the tweet and, importantly, other tweets that reply to or reference the tweet after it was sent in addition to showing some tweets in a person’s account that preceded or followed the tweet in question. This method of proving the tweets raises evidentiary issues. They are •   the proof that Mr. Elliott sent the tweets that the prosecution attributes to him; •   which tweets are in evidence; and •   what use the Court can make of the tweets. The proof that Mr. Elliott sent the tweets attributed to him Mr. Elliott submits that as there is no evidence from Twitter or from an expert in Twitter or the Sysomos software able to vouch for the accuracy of the tweets attributed to him, the Crown has not proven that he sent the tweets, and therefore the DVD and the printouts allegedly containing the tweets contain hearsay evidence. The contents of the tweets are not hearsay, and the Crown is not producing the tweets to prove the truth of their contents. Some tweets contain insulting allegations and descriptions of the complainants, some of the defendant. Many are unprovable in that the content consists of opinion. Indeed, this is one of Mr. Elliott’s contentions. This distinction between proof of contents and proof that something was said is fundamental. Justice Charron in R. v. Khelawon stated,[13] At the outset, it is important to determine what is and what is not hearsay. … The essential defining features of hearsay are therefore the following: (1) the fact that the statement is adduced to prove the truth of its contents ….” The purpose for which the out-of-court statement is tendered matters in defining what constitutes hearsay because it is only when the evidence is tendered to prove the truth of its contents that the need to test its reliability arises. While the disks and printouts are not hearsay with respect to the content of the tweets, because they do not purport to prove the truth of the content, they are hearsay insofar as proving that the tweet was sent by Mr. Elliott. P.C. Dayler and Det. Bangild testified that the Sysomos software is reliable and that they have used it in the past to call up tweets that were sent and received. This is evidence, though not sufficient, that these tweets were sent from the accounts of the specified handles on the reported date and time, and the tweets said what was introduced into evidence. But this evidence does not stand alone. In the middle of their Twitter exchanges, Mr. Elliott met Ms. Guthrie for dinner and exchanged emails with her. Tweets from the handle attributed to Mr. Elliott by the complainants refer directly to the dinner. This is evidence that the person who had dinner with Ms. Guthrie sent those tweets. And Ms. Guthrie identified Mr. Elliott in court as the person she had dinner with. Once the handle is proven to be Mr. Elliott’s, and one tweet from that handle shows up in the Sysomos search, that is sufficient to prove that he sent all the others that the search yields. There is no evidence that anyone else had access to Mr. Elliott’s handle or could access his account. As soon as one tweet on the disk with the Sysomos search results and in the printout is confirmed, it is not necessary to prove each and every one. file:///Users/nerissa/Downloads/Columbia CSV/R v Gregory Allan Elliott.htm 9/43