GAE Twitter Trial Update: Did The Crown Change Her Story In Mid-Trial?

Occupy Toronto's "Occupod", built by Gregory Alan Elliott

Occupy Toronto’s “Occupod”, built by Gregory Alan Elliott

[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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    • Matt on August 6, 2015 at 17:14
    • Reply

    How on Earth has this trial gone on like this? It would be funny if it weren’t for the fact that GAE has already suffered three years of punishment through the absurd bail conditions and loss of employability.

    • Kevin K on August 6, 2015 at 20:36
    • Reply

    Great summary! (one minor correction ; email addresses are *not* case sensitive)

    I don’t know what to make of this. The judge pointed out that the accused cannot be convicted on something that they were not charged with and the hearing concluded with the crown saying she will file an amended an charge? How is that possible? How is this even fair? The trial is over and final submissions have been made and the crown get to do a “do over” on the charges? Did the defense lawyer not object to this? How horribly unfair for GAE that he was not properly represented in this hearing.

    I wonder if it would have been better if this had been a trial by jury? They would have reached a decision in days not month’s. I think most juror’s would see how absurd the trial is and they would have acquitted GAE by now.

    I’m not a lawyer either so I may be off base. It would be interesting to get a lawyers take on what transpired.

    • useful idiot on August 6, 2015 at 21:42
    • Reply

    All this about a bit of typing on twitter … what would the brave men and women who settled this great country think of all this crap? sorry if triggered you by saying ‘settled’ [shoots self in the head]

    Get used to it – same thing is happening now in montreal:

    • Kevin K on August 7, 2015 at 01:03
    • Reply

    After studying the attachments it seems to me ( a non-lawyer) that the ball is in the Defense’s corner. They have to agree to amending the indictment to include the charge of “recklessness” (did the Crown even present evidence of “recklessness? If not why is the judge even entertaining this change?).

    If the indictment is not amended I hope it does not lead to a mistrial being declared and I do not know why it should. The crown laid the charges and presented their evidence to support the charges. In response the defense presented it’s case. In the end the crown did not prove that GAE “knowingly” harassed Guthrie such that it caused her “reasonably” in all circumstances to fear for her safety. The charge was completely preposterous to begin with. After being put through three years of hell GAE deserves a full acquittal. Anything less will be a miscarriage of justice.

    What would be interesting to see is the written closing submission by the crown. She refused to release it although she let a feminist reporter working for Torstar’s “METRO” paper have a look at the document. The reporter went on to write a biased article about the case and to mock GAE and his son’s in her twitter feed.

    I wonder if the Defense has a copy of the crown’s closing argument? If they do they should make it available online so that it can be scrutinized.

      • Jack Carter on September 5, 2015 at 03:15
      • Reply

      “The charge was completely preposterous to begin with. After being put through three years of hell GAE deserves a full acquittal. Anything less will be a miscarriage of justice. ”

      It was a thoroughgoing miscarriage of justice that this even went to trial. Any prosecutor should have seen that the elements of the crime of harassment were not present.

    • Tim Meehan on August 7, 2015 at 03:41
    • Reply

    Sounds to me like the judge is giving her one last chance to save face and drop this case, which she recklessly abused the process to bring to bar. Guess I’ll have to file ANOTHER LSUC complaint, this time maybe they won’t punt it to the judge like last time.

    1. It’s my understanding that Goldenberg wasn’t the person who filed the case, it’s just a hot potato that fell onto her lap…

      • Kevin K on August 7, 2015 at 20:21
      • Reply

      Tim, Were you the person who wrote the letter to the judge? If so why didn’t the defense put you on the stand? It might not be too late for you to testify in GAE’s defense if the judge is re-opening the trial over this matter. Also in another forum you mentioned Toronto police tried to intimidate you after you sent the letter. What ever came of that?

      1. I’ve deleted Tim’s comment, it comes from a fake email address and I can’t confirm who posted it- guessing it’s a hoax.

          • Kevin K on August 7, 2015 at 22:22
          • Reply

          I suppose he could be fake. He caught my attention because someone with the same name posted on the AVFM forum claiming to be the person who sent the letter to the judge. He said similar things to what was posted here. From what I have heard the person who wrote the letter to the judge skipped town and therefore was not available to the defense (a big shame). If this guy is for real and he reads this I hope that he will approach the family of GAE and offer to testify in GAE’s defense. If the judge can reopen the case to considered amending the indictment it seems to me it is not too late for the judge to hear testimony from a key witness. Had he testified in court to the facts alleged in his letter that would have been a slam dunk for the defense.

          1. It could be true, but as the person posting is using a fake email address I’m not willing to keep the posting. If he’s real and wants to reach out I promise confidentiality.

            • Tim M. on August 10, 2015 at 01:03
            • Reply

            I was never asked to testify, and doubt I would ever be. TPS is not going to investigate Bangluid, Frost, whty TPS employee Rae was brought in on the case or anyone else. Not my concern, I’m out of the country. The RCMP might though. Anyway, my duty as amicus curaie is complete and accomplished what it needed to: a closer look as to why this case was ever brought to court. The last time these kind of things went on was 20 years ago with Karla Homolka’s special deal, and MAG oldtimers will remember being caught short.

            Oh, yes that was me before. I sent you documents before.

              • Kevin K on August 11, 2015 at 00:58
              • Reply

              Tim see my (duplicate) comments posted above (I was expecting them to be posted below your comment)

              • Clayton Elliott on August 29, 2015 at 12:06
              • Reply

              Hi Tim, I’m Greg’s son. Would it be possible for us to chat? I’d really appreciate being able to connect directly with you. Maybe Your Humble Narrator can facilitate a conversation?

                • Kevin K on September 1, 2015 at 02:11

                Clayton I noticed that Tim posted to this blog last November and he provided his current twitter handle Maybe you can contact him via twitter. According to his post he is now in Boston. It would be great if he would be willing to travel to Toronto to testify to the court. He would demolish the case against your father .



                AKA @sysrequest AKA @yorandomtweeter AKA @tjm72

                Now @timothyjmeehan
                Boston, MA

                • Kevin K on September 1, 2015 at 03:23

                Just adding to my previous comment here is a copy of Tim’s comments from last November

                Oh yes, and then there is the whole thing with the Perjury Three.

                Steph Guthrie’s sister Caroline knows Cynthia Wardrope from Peterborough. Cynthia’s father John, of course, was a Scarborough City Councillor

                When I was still living in Canada, Toronto Police, bless them, sent a local cop out to ask me to call some detective in the same division as Bangluid. I declined, I’ll talk to Professional Standards only. Informed Chris Murphy. Our town police are not process servers.


    • Destin on August 7, 2015 at 04:01
    • Reply

    Thank goodness, the man didn’t do anything wrong to begin with!

    • Negative Creep on August 7, 2015 at 23:09
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    The whole way in which these cases are going is ridiculous. “that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them” is intended to mean actual safety. “he’s a man, I don’t know what he’ll do next if he’s doing this” is not a reasonable fear for one’s safety.

    The people who really need to worry about their safety are those who are committed to LIBERTY as more important than SLAVERY. Your fingers and voicebox are organs, and anyone who wants to control them wants to make you his or her slave. Now, maybe that is justified sometimes, but probably not—all of the human rights nonsense, and, afaik, the civil torts concerning “harassment” have never been subject to a thorough charter argument, nor are there any lawyers who haven’t been subject to such rules in law school, so they’re all biased by having been abused by the very institutions designed to protect the law, not advance a cultural marxist political agenda of division.

    I heard from a law faculty member at a prominent Canadian law school about how an older gentleman was nearly kicked out for referring to women as “chicks.” This is the level of “you shall call her the Duchess and bow deeply or off with your head!” that we’re dealing with. No fredom of expression, no diversity. Exactly what sort of headcase would fear for her safety by being called a “chick”?

    An old law textbook says that duress isn’t the fear of the “timid”, it is the fear that a reasonably firm individual would apprehend. So, someone repeatedly talking about someone, that doesn’t make a reasonably firm person fear for his safety. Is it the nicest thing? No, but life isn’t one big elementary school where you can whine to your teacher. The fears of the timid concern everything from shadows to ghosts. Could it be considered harassment to tell a ghost story to a person who really believes in ghosts after she’s said “that story frightens me!” If you’re sitting at the campfire with such a person, does that mean ghost stories are not allowed because they constitute harassment? And if such a mentally unsound person is not present, does that mean ghost stories are once again permitted? This is kooky, ridiculous territory—my grandfathers didn’t help defeat the fascists in WWII so that we could enjoy our own homegrown “nicey nicey” fascism.

    • Kevin K on August 10, 2015 at 22:09
    • Reply

    Tim, I am surprised that the defense attorney didn’t ask you to testify for the defense. Your testimony would have demolished the prosecution. As I mentioned above you should contact the family as it may not be too late for you to testify and put a stake through the case. I don’t know where you are out of country but I am sure that the defense would pay for you to fly to Toronto to testify.

    As for the TPS investigating Bangild and others they never investigate their bad apples unless forced to. I would suggest that you file a complaint with the OIPRD. You can do it online!

    • Kevin K on August 11, 2015 at 00:56
    • Reply

    Tim I am pretty sure that the Defense would have loved to have you testify. Your testimony would have demolished the case. It may not be too late for you to testify and I would hope you would contact the family of GAE. If you are out of country I am sure they would be more than happy to fly you back to Canada. As for TPS investigating Bangild and others the police rarely investigate their own unless ordered to by the OIPRD. I would suggest that you file a complaint with the OIPRD (you can do this online).

    • Joe on August 19, 2015 at 16:07
    • Reply

    This is both knowingly and recklessly harassing GAE.

    • Chris on September 6, 2015 at 21:54
    • Reply

    My interpretation of the 4 pages is that only if the defense agrees to the amended charges will the court prosecute the case based upon the amendment. A desperate attempt to win the case by dragging it out, burning up the defenses pocketbook, or convict by tricking the defense into agreeing to amended charges that they never defended against after final submissions.

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