In Canada, prosecutors are increasingly relying upon an accused person’s artistic creations, frequently in the form of rap music, to establish guilt.1. This subject has attracted significant academic commentary both in Canada and in the United States, as well as considerable judicial attention in the U.S. The issue received its most recent and meaningful Canadian appellate treatment in the recent decision of the Ontario Court of Appeal in R. v. Skeete, 2017 ONCA 926.
At Skeete’s trial, the trial judge admitted his rap composition to prove the Crown’s case for first degree murder. The Crown theorized that the murder was carried out in retaliation for the victim previously reporting Skeete to the police for another crime. Skeete’s composition, “Live from the Don”, which was authored during his detention at the Don Jail awaiting trial, described violent life at the notorious jail. The song included the lyric, “real niggaz don’t crack to the coppers, muthafucka”. The trial judge ruled that this was admissible as it demonstrated Skeete’s adherence to the “code of silence” and supported the Crown’s theory of motive.
The Court of Appeal ultimately concluded that the evidence was properly admitted. In assessing the admissibility of the rap music, the Court of Appeal crafted a new approach for the admission of this type of evidence. In my view, this approach suffers from a number of flaws.
First, the admission of rap plays upon racial bias and triggers harmful racist stereotypes. In his article, “Rethinking the Admissibility of Rap Lyrics in Criminal Cases”, Professor Tanovich presents a persuasive case that using rap lyrics as evidence raises serious concerns about moral and reasoning prejudice. To the extent that rap music is strongly linked to Black culture, Tanovich contends that, in assessing admissibility, courts must consider the “very real danger that rap lyrics will trigger and inflame stereotypical assumptions that triers of fact bring with them to court about race and crime.” Referring to American academic research, he noted:
Indeed, a study by Stuart Fischoff found that those exposed to rap lyrics were more likely to find a Black suspect guilty of murder than those not exposed. In another study, Carrie Fried had her subjects listen to a Kingston Trio folk song “Bad Man’s Blunder” about the shooting of a police officer. One group of subjects was told that it was a country song. The other group was told it was a rap song. Fried found that “subjects’ reactions to the lyrics identified as rap … were significantly more negative than reactions toward the same lyrics identified as country.”
The test crafted by the Court of Appeal in Skeete ignores these considerations and turns a blind eye to the very real likelihood that the admission of rap lyrics triggers racial biases for the jury. The Canadian criminal justice system has long grappled with systemic anti-Black racism, from policing and prosecution to sentencing. The entrenchment of another route of racial stereotyping only exacerbates the problem.
The second problem with the Court’s reasoning in Skeete is the underlying assumption that an artistic creation reflects the artist’s attitudes. In their article, “Rap on Trial” (2014) 4 Race & Justice 185, Professors Kubrin and Nielson forcefully debunk this myth:
As scholars who study rap music, the problem from our standpoint is that the fictional characters portrayed in rap songs are a far cry from the true personality of the artists behind them. The near-universal use of stage names within rap music is the clearest signal that rappers are fashioning a character, yet the first-person narrative form and rappers’ frequent claims that they are “keepin’ it real” (providing authentic accounts of themselves and “the hood”) lend themselves to easy misreading by those unfamiliar with rappers’ complex and creative manipulation of identify, both on and off the stage. This is particularly problematic with gangsta rap, where artists take on a criminal persona and offer embellished, graphic accounts of violence, sexual conquest, and other illicit activity. If audiences don’t appreciate that these are genre conventions, they can easily begin to conflate artist with character and fiction with fact. [emphasis added]
These literal interpretations are in stark contrast to commonly held perceptions of other artistic works. As the New Jersey Supreme Court noted in State v. Skinner, (2014) 95 A. 3d:
One would not presume that Bob Marley, who wrote the well-known song “I Shot the Sheriff”, actually shot a sheriff, or that Edgar Allan Poe buried a man beneath the floorboards, as depicted in his short story “The Tell-Tale Heart”, simply because of their respective artistic endeavours on those subjects.
Or that Johnny Cash actually “shot a man in Reno, just to watch him die”.
The final flaw in the Court’s decision in Skeete is that it overlooks the constitutional dimension to the issue. Unlike confessions or other traditional “statements against interest”, artistic creations involve elements of freedom of expression that are entitled to constitutional protection. Skeete’s composition, “Live from the Don”, represents his social commentary on life at the Don Jail. State action that could have a “chilling effect” on such artistic expression should attract heightened judicial scrutiny.
The Supreme Court has looked unkindly on state attempts to chill “debate on matters of legitimate public interest” due to the risk of “inappropriate censorship or self-censorship” (see WIC Radio Ltd. v. Simpson,  2 S.C.R. 420). In R. v. Bradshaw, 2017 SCC 35 Karakatsanis J. recognized that rules of evidence, such as hearsay, may have a “constitutional dimension” because they can threaten other rights. A test that too easily allows the Crown to use a person’s artistic expression as inculpatory evidence, such as that suggested by the Court of Appeal, risks curtailing that expression.
In my view, any test for the admission of rap compositions should take into account these realities – that rap invokes racial stereotypes, particularly with White audiences; that rap music, as with any artistic work, is not necessarily autobiographical, but is commonly presumed to be, particularly by White audiences; and that attempts to chill a genre of art should receive strict scrutiny by the courts. Without these limits, miscarriages of justice are the inevitable result, as described by Professors Kubrin and Nielson in Rap on Trial:
Using rap lyrics as evidence, then, is not just a matter of art being sacrificed for the sake of an easy conviction. Rather, the practice also constitutes a pernicious tactic that plays upon and perpetuates enduring stereotypes about the inherent criminality of young men of color; the lyrics must be true because what is written ‘‘fits’’ with what we ‘‘know’’ about criminals, where they come from, and what they look like.
1. See, for e.g., R. v. Williams, 2013 ONSC 1076; R. v Liard and Lasota, 2013 ONSC 5457; R. v. Campbell, 2015 ONSC 6199; R. v. McCullough, 2016 ONSC 1014; R. v. Millard, 2017 ONSC 5275.