[Note: I’m not a lawyer. I’ve done my best to understand yesterday’s hearing, but it’s possible there are complexities in the law that I don’t fully understand- if so, I openly welcome corrections]

Wednesday morning marked a new and unexpected chapter in the prolonged misadventures of Gregory Alan Elliott’s trial. Elliott was charged with criminal harassment for his communications over Twitter with three politically connected Toronto social justice warriors. Elliott lost his job and has been banned from using the Internet for over three years.

There were six other people in the courtroom yesterday morning; judge Brend Knazan, Crown prosecutor Marnie Goldenberg, a couple court staff, Elliott, and his dedicated son Clayton- neither the alleged victims nor anyone from the media showed. Elliott’s defence lawyer was on holiday and unable to attend the hearing so a speakerphone was placed under a microphone for him. While waiting for the judge Goldenberg commented to one of the clerks “I’ve never been in court on the phone”.

Adding to the unusual circumstances of the morning’s unscheduled hearing, the Judge had an unusual announcement. It appears that the Crown either made a colossal mistake or changed her story part way through. The results of this error could have a significant impact on Elliott’s case.

Shortly after judge Knazan was seated he reached out to Elliott’s lawyer over the speakerphone and asked if he had access to a copy of the criminal code. Knazan’s next interaction gives some insight into how our judiciary has an inadequate understanding of Internet technology:

Judge: “What’s your email address?”

Defense: [reads email]

Judge: “And it’s a capital C?”

Most people who are familiar with email will quickly see the judge’s mistake; it doesn’t matter if it’s a capital or a small C, email addresses are case insensitive. It’s a common misunderstanding that’s inconsequential to Elliott’s case, but also a good example of the challenges the judge faces ruling on this highly technical trial.

Once everyone was settled judge Knazan began reading from a document titled “R V G Elliott Re: Amendment of Change”. The paper began by restating Elliott’s charges, including two very important sentences (the second was repeated with the name of the other alleged victim Heather Reilly):

“Knowing that Stephanie GUTHRIE is harassed [Elliott] did repeatedly communicate directly or indirectly with Stephanie GUTHRIE thereby causing Stephanie GUTHRIE to reasonably, in all the circumstances, fear for her safety contrary to the Criminal Code…”

The document went on to explain how Section 264 of the Criminal Code specifies a “state of mind alternative” to the accused “knowing” the victim is harassed, they could also have “recklessly” (possibly unknowingly) harassed their alleged victim:

264(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct…

Next the paper explains how the Crown “submitted that Mr. Elliott knew that the complaints were harassed or was reckless as to whether they were or not”, and how Elliott’s defence “addressed the mental element of recklessness” in his final submission.

The Crown initially responded in her oral submission saying that Elliott wasn’t reckless but that he knew he was harassing the alleged victims, she later claimed this statement was unintended and restated:

“…Mr. Elliott knew he was criminally harassing the complainants, and if he did not know, he was reckless as to whether or not he knew he was…”

Elliott’s defence responded in his oral submission saying that the defence can’t be convicted based on a mental state (recklessly vs knowingly) that’s not alleged in the original charges. The judge responded saying:

“My conclusion is that regardless of the position of the parties, the pleadings prevail and there can be no conviction for something for which Elliott is not charged...there is a requirement to make a ‘proper accusation’ at common law by drafting a charge that specifies the exact conduct said to constitute the offence…”

To summarize; the Crown indicted Elliott for knowingly harassing Guthrie, later changing her story to say the alleged harassment was either knowing or reckless. The judge’s position that he can’t be convicted for what he wasn’t charged- it appears that the Crown attorney botched her case.

What Next?

When the judge finished reading his statement the look on his face was that he was expecting Elliott’s defence to respond with an obvious answer. After some back-and-forth the judge stated that the defence is “at a tremendous disadvantage”, being on a speakerphone away on holiday. The crown was noncommittal about how she’d approach the issue but promised to file an application to amend the charges on Monday.

The Crown’s filing might result in another hearing- if so, I’ll do my best to be in the courtroom when it happens. Until then, if you’re interested in reading the judges’s submission, there are links to pictures I took of it below:

– Page 1

– Page 2

– Page 3

– Page 4

I’m interested to hear other people’s take on the judge’s submission, please share your observations below and let me know if you think I’ve made a mistake.

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