ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN

-and-
GREGORY ALAN ELLIOTT

EXCERPT OF WRITTEN SUBMISSIONS OF MR. ELLIOTT



I have unexpectedly briefly made my account private for short periods to

prevent contact from abusive and harassing users (example: Men’s Rights

Activists) when simply blocking the accounts has not been successful, and

when the blocked accounts have continued to read my tweets.

Please let me know if this explanation is sufficient. Thank you. Heather

Reilly

24. Yet another evidentiary hurdle for the Crown Attorney is the fact that there is no

opinion evidence that the Crown Attorney can rely upon to establish which of the

complainants’ tweets – if any – Mr. Elliott likely received. At the conclusion of

the voir dire to qualify PC Dayler, the Court very clearly ruled upon which

aspects of Twitter PC Dayler was not permitted to opine:

It’s obvious that he cannot testify as who received it. That’s a fact, outside

this voir dire. And [Mr. Murphy] you’re correct that he can’t testify on the

technical aspects of why that would work or if it would work.21

25. As the Crown Attorney called no further expert evidence, there is no admissible

opinion evidence for the Court to determine how Twitter technically works. For

instance, there is no admissible opinion evidence on the issues of the effect of

“blocking” another Twitter user; there is no admissible opinion evidence on the

effect of placing a “period” at the beginning of a tweet; and there is no admissible

opinion evidence on the effect of mentioning another Twitter user’s handle in the

body of a tweet (as opposed to using the handle at the beginning of the tweet).

This latter point is especially important in the circumstances of Mr. Elliott’s case

because there is no opinion evidence upon which the Court can concluded that

Mr. Elliott’s tweets wherein he mentioned @amirightfolks in the body of a tweet

resulted in the tweet being transmitted to Ms. Guthrie and Ms. Reilly.

26. Further, as in any criminal harassment prosecution, a relevant fact is whether the

accused was subjectively aware that the complainant did not want any further

contact with the accused. In the present case, the Crown Attorney has not

established that Mr. Elliott ever received Ms. Guthrie’s September 9th tweets

asking him to stop contacting her. Indeed, in cross-examination, Ms. Guthrie

confirmed that she believed that Mr. Elliott may have had Ms. Guthrie blocked on

September 9th, saying:

Q:And you don’t know whether or not as of September 9th, 2012, Mr.

Elliot was actually blocking you?

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 21!PC!Dayler:!January!7,!2014,!p.!35,!lines!30732!–!p.!36,!lines!173.

A:Well, he...if I recall correctly...hmm. Hang on, give me a moment,

please. I do believe that he may have had me blocked at that time. I

think I recall him tweeting, though it wouldn’t be in this exhibit because I

don’t think he tagged me in it, but I believe I was alerted to a tweet in

which he said, “I blocked you, so...so there.” or something to that effect.

So it’s possible he had me blocked at that time. However, there are

many instances of evidence of him continuing to comment on my tweets.

Comment on things that I was stated on Twitter that he would not have

known if he was not continuing to monitor my activity on Twitter.22

27. Following Ms. Guthrie’s attempt to backtrack from her above-referenced

testimony, Ms. Guthrie ultimately confirmed the following regarding whether she

was aware if Mr. Elliott ever received her September 9th tweets:

Q: Okay. So I think my question was...you don’t know if he [Mr. Elliott]

had blocked you on September 9th?

A: I don’t know if he had blocked me, no.

Q: So then, obviously you don’t know whether or not he ever received

your message of stop?

A: No, I don’t.23

28. Ms. Guthrie, herself, cannot therefore confirm that Mr. Elliott ever became aware

that she wanted Mr. Elliott to stop contacting her. Indeed, although Ms. Guthrie

had communicated with Mr. Elliott by email in the spring of 2012, she chose not

to advise Mr. Elliott by email to stop contacting her, and she chose not to Direct

Message Mr. Elliott on Twitter. Further to this point, prior to charging Mr.

Elliott with criminal harassment, the police did not warn Mr. Elliott to stay away

from the complainants. Mr. Elliott did not make any inculpatory statements to the

police upon his arrest suggesting he was aware that Ms. Guthrie wanted him to

stop contacting her. And the police did not obtain a Production Order in order to

determine which tweets – if any – Mr. Elliott received. Certainly, therefore, one

available inference on the evidence is that Mr. Elliott did not know that Ms.

Guthrie wanted him to stop contacting her.

29. Further, while a small percentage of Mr. Elliott’s tweets in Exhibit 2AJ were

directed at either of the complainants, the vast majority of Mr. Elliott’s tweets

were not. Indeed, as confirmed by the Crown Attorney’s expert witness, in the

world of Twitter, messages are “directed to” the Twitter handles (i.e.:

@paisleyrae) only when the handles are found at the front of the tweet.

According to PC Dayler, if another user’s Twitter handle is used later in the tweet,

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 22!Stephanie!Guthrie:!January!10,!2014,!p.!69,!line!227p.!70,!line!4.

23!Stephanie!Guthrie:!January!10,!2014,!p.!71,!lines!27732,!p.!72,!lines!172,

the result is a “mention”, and is not considered to be directed at the user whose

handle is mentioned later in the tweet.24

30. Using PC Dayler’s definition of how Twitter users tend to communicate with one

another, Mr. Elliott did not direct a single tweet at Ms. Guthrie after September 9,

2012. Regarding Ms. Reilly, Mr. Elliott directed only one tweet to

@ladysnarksalot after September 1, 2012, and, on that occasion, only after Ms.

Reilly disseminated on Twitter the scandalous tweet suggesting that Mr. Elliott

was a pedophile.

31. Before Mr. Elliott can be found guilty of criminal harassment, the Criminal Code

requires the Crown Attorney to prove beyond a reasonable doubt, inter alia, that

Mr. Elliott’s conduct caused the complainants “reasonably, in all the

circumstances, to fear for their safety”25. It is submitted that, given the negligible

weight that must be assigned to the Crown Attorney’s documentary evidence, the

Court cannot begin to determine all of the circumstances facing the complainants

and Mr. Elliott between August 1, 2012 and November 20, 2012.

Mens Rea

32. On November 15, 2012, the Academy of the Impossible (“Academy”) hosted an

online discussion that was to take place on Twitter. Prior to the discussion, the

Academy had done its own advertising of the event through Twitter and

Facebook.26 According to Ms. Reilly, the topic of the discussion was “how

women are treated on Twitter; ”

identity, anonymity and accountability”28 and the “nature of trolling”29. Prior to

November 15th, the event had been widely publicized, and all persons interested

in learning more about the topic, or to debate30 the panel, were encouraged to

“virtually” attend the Academy’s event by following the hashtag “#AOTID”.

Although all of the members of the Academy’s panel held “similar” views

regarding how to deal with online “trolls” and misogynists, opposing views were

welcome.31

33. One of the panelists for the Academy’s discussion was Stephanie Guthrie, the

founder of the political32 organization Women in Toronto Politics (“WiTopoli”).

Ms. Guthrie is a prolific Twitter user who uses her personal Twitter account to

“tweet about issues relating to feminism, to politics, education”.33 Ms. Guthrie’s

views on “calling out trolls” and “calling out misogynists” had been widely

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 24!Nathan!Dayler:!January!8,!2014,!p.!23,!lines!22734.

25 Criminal.Code,!section!264(1),!emphasis!added.

26!Heather!Reilly:!November!12,!2014,!p.!61,!line!3.

27!Heather!Reilly:!November!12,!2014,!p.!60,!line!30.

28!Stephanie!Guthrie:!May!7,!2014,!p.!56,!lines!12713.

29!Stephanie!Guthrie:!July!23,!2014,!p.!42,!line!31. 30!Heather!Reilly:!November!12,!2014,!p.!61,!line!27!.

31!Heather!Reilly:!November!12,!2014,!p.!61,!line!25.

32!Heather!Reilly:!November!12,!2014,!p.!23,!line!24.

33!Stephanie!Guthrie:!January!8,!2014,!p.!6,!lines!13714.

27 according to Ms. Guthrie, the topic was “online

publicized prior to November 15, 2012. Ms. Guthrie believed that trolls and

misogynists should be exposed and that a light should be shone upon them.

Indeed, in July of 2012, Ms. Guthrie attempted to sic the Internet on Mr. Bendalin

Spurr, a Sault Ste. Marie resident who had created a misogynistic video game.

34. Another one of the participants in the November 2012 AOTID discussion was

Heather Reilly. Although Ms. Reilly’s true identity could not have been known to

participants of the Academy’s discussion (her Twitter account did not use her real

name, and did not contain any photographs of her), Ms. Reilly was a friend and

ally of Ms. Guthrie’s and her Twitter handle @ladysnarksalot openly supported

WiTopoli’s mandate.

35. Another alleged participant in the Academy’s open, political, discussion was the

accused Gregory Alan Elliott, who had been a supporter and political ally of

WiTopoli and Ms. Guthrie prior to the latter’s public and systematic attempt to

“call out” Mr. Spurr in the summer of 2012.

36. Although by November 15, 2012, Ms. Guthrie’s and Ms. Reilly’s political

opinions and world views were in stark contrast to those of Mr. Elliott’s, both of

the complainants and the officer-in-charge of R v Elliott readily acknowledged in

their testimony that Mr. Elliott had never threatened the complainants on Twitter,

and had never used any sexually harassing language directed towards either

complainant. Indeed, Mr. Elliott’s explanation for tweeting references to the

complainants is succinctly summarized in the Storify Account that Ms. Reilly,

herself, created in September 2012, in which Ms. Reilly presented tweets between

Mr. Elliott and the seemingly random Twitter user with the handle @jgeady. In

her Storify Account, Ms. Reilly cites Mr. Elliott as tweeting:

a. “...No. I’ve been in defense mode. Not attacking, nor have I ever

considered any of them “sexually/spiritually/romantically attractive””

b. “...No. They’ve tried to intimidate, threaten, harass, and are trying to

“punish me” for “calling them out” by kicking me off #Twitter”.

c. “...FYI – They were bullying others...I called them on it... They attacked

me. Your comments make no sense.”34

37. Ms. Reilly’s Storify Account does not include the full dialogue between Mr.

Elliott and @jgeady – and therefore all the circumstances of the conversation

cannot be assessed – but it is clear that Mr. Elliott was attempting to present his

side of the story. And Mr. Elliott’s description of his side of the story aligns

perfectly with the evidence in R v Elliott.

38. For instance, regarding the November 15, 2012 @AOTID debate, the Crown

alleges that Mr. Elliott contributed eleven tweets to the #AOTID discussion.

Although Ms. Reilly told the police on November 27, 2012th that Mr. Elliott was

“attacking Steph Guthrie”35 on the #AOTID discussion, a reasonable and

tempered reading of the eleven tweets reveals that Mr. Elliott was not criminally

harassing the complainants on November 15th, but was rather (initially)

contributing to the political discussion and (ultimately) defending himself against

personal attacks from fellow #AOTID contributors. Indeed, nearly all of Mr.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 34!Exhibit!58.

35!Heather!Reilly:!November!12,!2014,!p.!64,!line!21.

Elliott’s #AOTID tweets appear to include comments that had been cut-and-
pasted from other #AOTID contributors.36

39. Further, none of Mr. Elliott’s tweets relating to the #AOTID discussion was

directed at either Ms. Guthrie or Ms. Reilly, and none of his #AOTID tweets used

the name of either complainant. Indeed, Mr. Elliott’s first tweet on the #AOTID

discussion was a reference to Canadian philosopher Marshall McLuhan (and not

the complainants), and his second tweet on #AOTID said:

"Calling out a troll" is usually just "asking everyone you know to gang up

on someone offering an opinion different than yours" #AOTID #dumb37

40. Mr. Elliott’s definition of “calling out a troll” is a fair one, given all the

circumstances of the case at bar. As it turns out, however, “calling out a troll”

was the online strategy recommended by the panelist Ms. Guthrie on #AOTID’s

discussion, as confirmed by Ms. Reilly in her testimony:

Q. Oh, you think [the above-referenced tweet is] an attack on Steph

Guthrie too?

A. That ... the quote of calling out a troll had actually been in reference to

Stephanie’s speech during the session.

Q. Oh, I see. So Mr. Elliott is taking a quotation from a speech that’s

given online for the public to comment on. So he takes a quotation from

Ms. Guthrie’s speech, right?

A. Correct.

Q. Then he calls it dumb, right?

A. He’s also provided his own definition for calling out, as opposed to the

definition that was stated within the session.

Q. Well, obviously you would agree that Mr. Elliott would be entitled to

his own opinion on it?

A. Absolutely.

Q. Right.

A. It’s a free country.38

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 36!See,!for!example:!Exhibit!2F:!Tweet!at!21:42:34!which!reads:!!Means!counter7

challenges!should!be!respected/protected.!“@marcopolis:!Social!media...Means!we!

can!challenge!people,!not!personas.!!#AOTID”

37!Exhibit!2F.

41. Mr. Elliott submits that a serious, important, and high-minded subject was being

debated at the Academy on November 15, 2012. One of the topics discussed

during the #AOTID meeting was Bendalin Spurr.39 Ms. Guthrie’s position on

how to deal with “trolls” was the following:

Q. Okay. Well, just to be clear that on November 15th, 2012 ...

A. Mmhmm.

Q. ... your position was that, “Ignoring trolls is not the way to go,”, right?

A. Yeah.

Q. You are supposed to call out the trolls, agreed?

A. If they’re being bigoted or harassing, yes.40

42. While Ms. Guthrie’s stance regarding “calling out trolls” was rigid, the propriety

of whether to “call out” people on social media was far from settled. As

evidenced from the testimony and exhibits in the case at bar, the “calling out” of

individuals on Twitter can have significant repercussions on those who have been

“called out”. In the Bendalin Spurr case, for example, his public shaming by Ms.

Guthrie resulted in Mr. Spurr’s name being quickly associated around the world

with misogyny. Further, and potentially more significant for Mr. Spurr, was the

fact that Ms. Guthrie attempted to make Mr. Spurr face “’real-life” consequences

for his misogyny”; indeed, Ms. Guthrie intended for such consequences to extend

to the Sault Ste. Marie community, his “prospective employers” and “the Sault

Ste. Marie press ”

succinctly expressed in the following back-and-forth with Mr. Elliott and all of

Ms. Guthrie’s followers on July 6, 2012:

41. Ms. Guthrie’s stated goal in dealing with Mr. Spurr was

16:31:27: @amirightfolks He’s got 11 followers. Why bring

16:33:49: .@greg_a_elliott Because I think the Sault Ste Marie

attention to the guy? Media attention will only add to more

“virtual face punching”

community should be aware where is a monster in their

midst.42

43. Being defined as a “monster” in one’s community can obviously have dangerous

repercussions. Indeed, during her cross-examination, Ms. Guthrie confirmed that

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 38!Heather!Reilly:!November!12,!2014,!p.!67,!line!8725.

39!Stephanie!Guthrie:!May!7,!2014,!p.!59,!line!20.

40!Stephanie!Guthrie:!July!23,!2014,!p.!43,!lines!11721.

41!Exhibit!11:!Storify!Account!of!Ms.!Guthrie,!p.!2.

42!Exhibit!2A,!p.!3.

she is fully in favour of online vigilantism if the circumstances warrant,43 even if

this means putting the target of the vigilantism in physical danger.44

44. In the case of Mr. Spurr, Ms. Guthrie was unapologetic in her treatment of him,

which is clearly evidenced in the following portion of her cross-examination:

Q. You were trying to ruin Bendilin Spurr’s life, correct?

A. I was trying to let as many people as possible know that this was

something Bendilin Spurr had done. And if they believed it was wrong, and

if they believed it was disgusting, and if they took action that subsequently

ruined Bendilin Spurr’s life, then he was the one who ruined it and not me,

Mr. Murphy.

Q. Right. So ...

A. I was a messenger.

Q. So you were the messenger. So a 24 year-old kid in Sault Saint Marie

makes a face punch game for whatever reason he has to make it?

A. Are you suggesting there’s a valid reason?

Q. If a kid makes a face punch game, and his life is ruined, and you’re just the

messenger, that’s a-okay with Stephanie Guthrie?

A. Well, 24 years old is not a kid. Certainly old enough to appreciate the

severity of your actions. And I would not feel sorry about that. If that

happened, that would be his actions that got him where he was. His

choices.

Q. So you being the messenger of a message that ruins Bendilin Spurr’s

life is okay with you, yes or no?

A. Yes.

Q. Thank you.45

45. Regarding Mr. Elliott’s tweet to Ms. Guthrie on July 7, 2012 wherein Mr. Elliott

warned of Bendalin Spurr potentially committing suicide, Ms. Guthrie testified:

Q. Okay. Sure. But Mr. Elliott is expressing a very important view point

here. Would you agree that if people across the world are now aware of

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 43!Stephanie!Guthrie:!January!10,!2014,!p.!33,!lines!15725.

44!Stephanie!Guthrie:!January!10,!2014,!p.!39,!lines!5713.

45!Stephanie!Guthrie:!January!10,!2014,!p.!98,!lines!11732,!p.!99,!lines!178.

him, and are now expressing their hatred for him, there’s a good chance

that this guy might do something to take his own life.

A. That would be very sad if that happened, but if it did it would not be

my fault. He made that game. He made it under his own name. He was

very proud of it. He can ... whatever comes from that, he created those

consequences, not me.46

46. Consistent with the above passage, Ms. Guthrie’s refrain throughout her

testimony was that she was just the deliverer of messages. She was just a

messenger when she sicced the Internet on Mr. Spurr. And she was just the

messenger when, in November 2012, she provided the OIC of Mr. Elliott’s

investigation a tweet that suggested that Mr. Elliott was a pedophile:

Q. Right. And just to be clear, the date November 12th which is on this

exhibit [#40] is the date that you took that screen grab, right?

A. I couldn’t possibly say.

Q. Okay. But you understood that on or about November 12th, Mr.

Elliott was being accused on Twitter of being a pedophile, right?

A. Sure.

Q. Right. And again, you didn’t feel it was your job to tell Detective

Bangild that it was, actually, an adult?

A. The young woman said that she was 13, so that was what people

believed. She later said that she was not 13.

Q. Right.

A. But initially she said that she was.

Q. But by the time you met Detective Bangild, you already testified to

this, you were aware that she was either 18 or 19, agree?

A. Yes.

Q. Right. Good. So not really trying to help out Mr. Elliott when you’re

not mentioning the fact it’s actually an adult, right?

A. My position wasn’t really that I wanted ... I was not trying to help Mr.

Elliott.

Q. Right.

A. He was stalking me. So no, I wasn’t trying to help me. I wasn’t trying

to harm him unduly, but I was not trying to help him and I was not trying

to ... yeah.

Q. Right. In your view handing tweets alleging Mr. Elliott’s a

pedophile without correcting the officers receiving them, is not trying

to harm Mr. Elliott, right?

A. Wasn’t trying to harm him, no.

47

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 46!Stephanie!Guthrie:!May!7,!2014,!p.!94,!lines!26729.

47!Stephanie!Guthrie:!July!23,!2014,!p.!59,!line!8!to!p.!60,!line!9,!referencing!Exhibit!