Canada: Evidence And Social Media: Notes From The Canadian Twitter Trial

Last Updated: January 26 2016
Article by Timothy Banks

On Friday, January 22, 2016, the Ontario Court of Justice released reasons in R. v. Elliott, 2016 ONCJ 35. The case involved allegations that the accused engaged in criminal harassment of two women by repeatedly communicating with them over Twitter. The case is interesting in a number of respects, not least of which was the court's struggle with how to address evidentiary challenges with social media.

A Little Background

The case stemmed from a dispute that took place over Twitter between the accused and, among others, the two complainants. The accused met one of the complainants once, but never met the other. An analysis of all of the tweets that were involved goes beyond the scope of this post. Suffice it to say that the exchanges were not always a model of civil discourse – on anyone's part.

In order prove criminal harassment under section 264 of the Criminal Code, the prosecution was required to establish:

  • the accused repeatedly communicated with, either directly or indirectly, with the two complainants
  • the complainants were harassed
  • the accused knew the complainants were harassed or was reckless or wilfully blind as to whether they were harassed
  • the complainants feared for their safety (physical or psychological)
  • the fear was reasonable in all the circumstances

The court had no trouble concluding that most of the elements of criminal harassment were established with respect to the complainant with whom the accused had had personal contact and who the accused engaged with the most (directly and indirectly) over Twitter. However, the prosecutor was unable to prove that the harassment, however genuinely felt by the complainant, was reasonable.

The prosecution relied on the number of tweets and that the accused continued to participate in a public online discussion of various topics in which the two complainants were involved even when they asked him to stop. But the court concluded that there were no tweets that were of a violent, sexual, or irrational nature. In the absence of that type of conduct, the court appeared to think that the complainant's participation in shaming the accused should be part of the context in which the volume of tweets should be understood. The court held: "The main premise that I find unreasonable is [the complainant's] perception that she could tweet about topics but not be exposed to [the accused's] tweets (however spurious and invalid) about the same topic – even if the topic was him."

Listening in on the Public Square

The allegedly harassing tweets and the context in which the tweets occurred were, of course, central to the entire case. However, no single tweet or group of tweets were alleged to constitute the harassment. Instead, the harassment was alleged to occur because of the total volume of tweets. Since one of the complainants had blocked the accused on Twitter, some of the tweets that allegedly constituted part of the harassment involved those that were sent to others, such as the complainants' followers, or tweets that contained hashtags that the complainants used.

One of the complainants likened Twitter to a public square. With all of the shouting in the public square, how would the prosecution select the tweets and demonstrate that they were harassing in context? Initially, the police simply searched the Twitter platform for tweets but the number of tweets were temporally limited and this type of search would not capture erased tweets. So the police resorted to employing social media listening software, which is used by organizations to track trends and to understand how potential customers are engaging with brands and ideas. Using this social media listening software, the investigating police officer:

  • looked for the conversation between the accused and the complainants by searching for tweets in which they used each other's Twitter handle
  • looked for tweets that contained certain hashtags that the accused or the complainants either created or followed

Importantly, because the tweets were available to anyone with a licence to use the social media listening software, the court accepted that it was unnecessary for the police to obtain a warrant to gather that evidence. Although not discussed by the court, it does not appear that a user of Twitter could make a viable argument for a reasonable expectation of privacy based on the current version of the Twitter privacy policy. The privacy policy specifically notifies users that the Twitters services "broadly and instantly disseminate your public information to a wide range of users, customers, and services" and that this information may be delivered and used by third parties to analyze the information for trends and insights.

Proof the Accused Sent the Tweets

The charges of criminal harassment did not require the prosecution to prove that the accused meant what he said in the tweets. But it was necessary to prove that the accused sent them. But the fact that they were sent by the accused was hearsay. At a minimum, it was necessary to establish a link between the accused and the handle from which the tweet allegedly originated and then to establish that the tweets were authentic in the sense of not having been altered.

The court took a common sense, although perhaps not particularly rigorous, approach to this issue. The court noted that some of the tweets attributed to the accused related to a dinner that the accused had with one of the complainants. This provided circumstantial evidence that the accused was tweeting from that handle. Since there was no evidence anyone else had access to the accused's handle or had access to his account, and the accused did not allege the tweets had been altered, the court found it was not necessary to prove that the accused sent each tweet.

The Fragility and Completeness of Electronic Evidence

There were numerous problems with printing out the tweets obtained through social media listening software. The searches using the social media listening software did not always yield complete records of the tweets. The tweets were garbled with punctuation being displayed as symbols.  Links and attachments were not available.

To remedy the deficiencies, the prosecution created electronic files that showed the tweet as it appears in Twitter. However, using this method meant that the court was being connected to Twitter through the Internet. The court encountered striking examples of how access to the evidence could be impeded in real time during the trial. For example, at one point, the prosecution could not open a tweet because the complainant, who was testifying, had locked her account and made it private the day before she testified. The problem re-occurred when the defence counsel attempted to open the links only to discover the complainant had again blocked access to her account. A similar issue happened to the trial judge when hew as attempting to review the evidence while preparing his reasons for judgment.

Ultimately the electronic evidence had to be printed in order to create a stable record of the evidence that was introduced at trial.

Selectivity in Relying on Search Results

Another problem for the prosecution was establishing the context for the tweets. If only the tweets produced by the search results had been authenticated and introduced into evidence, the prosecution would have failed to prove the context of a tweet if the court could not give meaning to the content of the tweet without resort to other tweets or the links in the tweets.

The court took a common sense, although again not a particularly rigorous approach, to the evidence. The court held that if there were other tweets surrounding the tweets sent and received by the accused that provided context and were printed and available in the exhibits, he could rely upon those to give the tweets the appropriate context.

Twitter Discourse is Not a Free-for-All

Although the charges against the accused were dismissed, the court did not find that anything goes on Twitter. Clearly, messages that are threatening can be objectively harassing. It is also possible that the total volume of messages could be objectively harassing if the complainant tells the user that the volume is harassing, blocks the user and does not engage with the user further, and the user persists.

In future cases, it may be relevant for the court to consider whether the complainant sought recourse through Twitter. Twitter recently updated its Rules to address abusive behaviour. In particular, the Rules prohibit behaviour "that harasses, intimidates or uses fear to silence another user's voice." Twitter will consider the following factors when considering whether there is harassment: (i) whether the primary purpose of the account is to harass or send abusive messages; (ii) whether the reported behaviour is one-sided or involves threats; (iii) whether the account is being used to incite others to harass another account; and (iv) whether the account is sending harassing messages from multiple accounts. Twitter has a number of tools that it makes available to report violations.

For more information, visit our Privacy and Data Security blog at

About Dentons

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Specific Questions relating to this article should be addressed directly to the author.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions