R-v-Elliott-Submissions-15-April-7

address whether the hearsay evidence found in Exhibit 2 (“2DVD”) Exhibits 2A-
2J (“2AJ”) are copies of the tweets that were actually sent. Simply put, Exhibit
2DVD and 2AJ are hearsay and cannot be used by the Crown Attorney to prove
that the tweets were either sent or received unless either complainant
authenticates the details of each and every tweet upon which the Crown Attorney
attempts to rely. Given the sheer volume of the tweets sent and received by the
complainants during the relevant time period, and given their repeated assertions
during cross-examination that – essentially – they are prolific tweeters and they
cannot be expected to remember the content of each tweet they sent and received
in 2012, it is submitted that the Court cannot be satisfied that the complainants
have adequately authenticated the content of the hundreds of tweets found in
Exhibit 2AJ. For example, Ms. Guthrie was asked in examination-in-chief
whether she had even seen the 23 tweets between July 18, 2012 and August 11,
2012 wherein Mr. Elliott had referenced the @amirightfolks handle. Ms. Guthrie
responded:
Q: So there are 23 tweets that I asked you to read.
A: Mmhmm.
Q: Either where you are mentioned at the beginning, so @amirightfolks is
the first thing that we see in the tweet, or mentioned in the tweet?
A: Yes.
Q: And so prior to today, do you recall seeing these tweets?
A: Some of them, yes.
Q: All right. And how did you become aware of these tweets?
A: Because people sent me messages about them…. 8
It is submitted that, because both Ms. Guthrie and Ms. Reilly testified that they
each had Mr. Elliott “blocked” for much of the period articulated in the
Information, the only way that either complainant would have even become aware
that Mr. Elliott had mentioned them in his tweets would be if his tweets were
forwarded to the complainants by other Twitter users. This method of collecting
Mr. Elliott’s tweets is imperfect and should negatively affect the weight given to
the complainants’ testimony that they had seen Mr. Elliott’s tweets.
13. A further evidentiary hurdle for the Crown Attorney – and connected intricately to
the hearsay issue – is the fact that the evidence contained in Exhibit 2AJ clearly
does not contain all of the tweets sent during the time periods captured on Exhibit
2AJ, and are therefore not reliable. For instance, September 9, 2012 is a critical
date for the Crown Attorney’s prosecution of Mr. Elliott. On that day, Mr. Elliott
sent Ms. Guthrie a tweet asking her to “stop harassing [him] pretending to be
harassed”. It is also the only day that Ms. Guthrie ever told Mr. Elliott to stop
contacting her and “smearing [her] work”, as established in the following
exchange:
8 Stephanie Guthrie: January 9, 2014, p. 44, lines 21-­‐32.
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