WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.— (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2019-09-27

Court File No.: Toronto 4817 998 19-75002077-01;-03;-04

Between:

Her Majesty the Queen

— and —

Shakiem Anderson, Kareemallah Muhammad, and Sharrief Malik Muhammad

Before: Justice Howard Borenstein

Heard on: May 6, 7, 8, 9, 10, 14, 15, June 17, 18, 19, 20, July 9, 12, 25, and August 8, 2019

Ruling on Committal released: September 27, 2019

Counsel

Ms. Emily Marrocco — counsel for the Crown

Mr. John Pollard — counsel for the Crown

Mr. James Mencel — counsel for the accused Shakiem Anderson

Mr. Jag Virk — counsel for the accused Kareemallah Muhammad

Mr. Jeff Rybak — counsel for the accused Sharrief Malik Muhammad

BORENSTEIN, J.:

Introduction

[1] This is my ruling on committal for all remaining accused.

[2] The three accused are charged with a brazen daytime shooting in Regent Park on May 28, 2018. There had been a shooting the day before in the Vanauley Walk area of Toronto. A gang expert testified about a gang known as the Project Originals or P.O. that operates out of Vanauley Walk and it is conceded that there is some evidence from which a reasonable jury could find that the Project Originals are a criminal organization. The expert testified to a rivalry between the Project Originals and two gangs operating out of Regent Park, the Hallal gang and the Sick Thugz.

[3] The Crown theory is that this shooting was in retaliation for the shooting May 27th in Vanauley Walk. It was meant to let the Hallal gang, and others, know that shootings in Vanauley Walk will be responded to. Therefore, this shooting was for the benefit of the Project Originals.

[4] The Crown alleges that these accused are members of Menace Gang ("M.G.") which the Crown alleges is essentially a junior gang associated with the Project Originals.

[5] Menace Gang is also a successful rap group.

[6] As a result of this shooting in Regent Park on May 28th, the three accused stand charged with numerous offences, including committing these offences for the benefit of a criminal organization.

[7] There is no issue that on May 28th, the three accused, together with Harlan Baldwin, drove together to Regent Park in a rented car. The car was rented in the name of someone else.

[8] Anderson was the driver. Sharrief Muhammad was in the front passenger seat. Baldwin and Kareemallah Muhammad were in the back. Baldwin and Kareemallah both had loaded guns.

[9] The car arrived in Regent Park and stopped.

[10] The streets were full of pedestrian traffic.

[11] Baldwin and Kareemallah Muhammad exited the car holding handguns. Within seconds, Kareemallah Muhammad discharged his gun causing people to run for cover. Both men returned to the back seat of the waiting car which then fled. Police were on scene immediately. Anderson drove extremely dangerously for about five minutes, hitting various cars and speeding on sidewalks before coming to a full stop. When the car stopped, all four men ran leaving behind the guns in the car. They were arrested by remarkable police work. The shooting and driving were captured on various cameras. A black Ruger was found in the car with five rounds in the chamber and one round missing. The serial number was defaced on that gun. A jury could find that was the gun used by the shooter. The gun brandished by Baldwin was a Smith and Wesson and was not fired.

[12] When Sharrief Muhammad and Kareemallah Muhammad were arrested, Sharrief Muhammad said to the police to tell the Toronto Star that Toronto rappers Caspar and K money were caught – "I never did it but I want the clout so I could drop a banger". In the context of this case, that could refer to releasing a new record which, in fact, was released the following day.

[13] As mentioned, Sharrief Muhammad and Kareemallah Muhammad are part of a rap group called the Menace Gang. They are a successful music group. They produce and perform music and music videos. Their music is played at Raptors' and Leafs' games. They tour. One of their songs has over nine million views on YouTube. Their music is replete with lyrics and imagery glorifying gang life, including rivalries, violence and shootings in Vanauley Walk and elsewhere. Both Muhammad brothers are the main faces of Menace Gang. This is not only based on the videos or their music but the interview We Love Hip Hop, where they speak to that. The Crown believes Menace Gang is also a criminal gang associated to Vanauley Walk and connected or aligned with Project Originals.

[14] From this brief overview of the facts, the three remaining accused are charged with numerous offences relating to this shooting, including possessing and discharging the guns, dangerous driving and, most contentiously, committing these offences for the benefit of a criminal organization.

[15] Baldwin plead guilty to certain charges at the outset of the preliminary hearing.

Issues on Committal

[16] Turning to the issues on committal.

[17] Role of Justice at a preliminary hearing is well known.

[18] At this point, I take the Crown's case at its highest. Any reference to a fact or inference should be understood to mean only that a reasonable jury, properly instructed, could reasonably find that fact to have occurred, based on the evidence or reasonable inferences flowing from the evidence. I am not considering whether a jury would make those findings or draw those inferences.

[19] It is important to differentiate between reasonable inferences that flow from the evidence and speculation. Reasonable inferences are inferences that may be drawn from primary facts. Speculation and conjecture are impermissible.

[20] Ultimately, the question to be answered is whether, based on the evidence and reasonable inferences that flow from the evidence, a reasonable jury, properly instructed, could convict these accused of the offences they are facing.

Anderson

[21] I will begin with the charges against the driver Anderson, as his issues are the simplest.

[22] The Crown seeks committal on all charges laid against Anderson other than the criminal organization count and assault police (count 14). In light of the Crown's position, Anderson concedes committal on all counts other than count ten, possession of a firearm with a defaced serial number. Implicit in his concession, he accepts that one reasonable inference that a jury could make is that he was aiding Kareemallah Muhammad to commit these offences and further, a jury could infer he was therefore aware there were loaded guns in the car. He submits, however, that it is speculative and unreasonable for a jury to infer that he would have known that the gun used by Kareemallah Muhammad had a defaced serial number. He could not be expected to know that. I agree. In my view, it is a mere possibility and, while possible, remains entirely speculative. He will be discharged on that count and committed to stand trial on all remaining counts with which he is charged, as amended, other than one, ten and 14.

Muhammad Brothers

[23] Turning to the charges relating to Kareemallah Muhammad and Sharrief Muhammad. Kareemallah concedes committal on all counts other than the criminal organization count and the count relating to Baldwin's firearm. With respect to Baldwin's firearm, there is evidence he and Kareemallah Muhammad were parties in a joint enterprise. He will be committed with respect to Baldwin's firearm as well.

[24] Sharrief Muhammad contests committal on all counts other than fail to comply recognizance.

[25] I will leave the criminal organization count until the end, as it applies to both Muhammad brothers.

[26] The Crown submits that the evidence permits a reasonable inference that the two Muhammad brothers formed an intention in common to drive to Regent Park for this shooting and should be committed to trial on most of these charges; Kareemallah Muhammad as principal; Sharrief Muhammad as a party; both based on a common intention 21(2) and by aiding and abetting 21(1).

[27] Sharrief Muhammad's overarching submission is that there is no direct evidence of his guilt. He was merely present. He submits the Crown's case is circumstantial and a reasonable jury could not exclude other reasonable inferences inconsistent with guilt and therefore a jury could not convict, and he should be discharged. Despite the appealing logic to that submission, respectfully, it is not supported in law.

[28] In R. v. Jackson, 2016 ONCA 736, the Court held:

If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt.

After quoting from the Supreme Court of Canada's 2001 decision in Russell, the Court continued:

The Chief Justice makes it clear that evidence at the preliminary inquiry that is equally capable of supporting two reasonable inferences, one consistent with guilt and the other inconsistent with guilt, requires that the accused be committed for trial.

And further:

Given the nature of the decision the preliminary inquiry judge must make when deciding whether to commit, I see no value in reference to Hodge's Case (1838), 2 Lewin 227. The often cited passage from Hodge's Case provides language that may be used in a jury instruction to assist a jury in applying the reasonable doubt standard to circumstantial evidence, and to alert the jury to the dangers of leaping too quickly to conclusions based on circumstantial evidence: see R. v. Villaroman, 2016 SCC 33. Neither concern is germane to the function of the preliminary inquiry judge at the end of the preliminary inquiry.

[29] "Equally capable of supporting two reasonable inferences" does not mean that the Court weighs competing reasonable inferences and commits only where the one favouring guilt is as strong or stronger than other reasonable inferences. That would require a weighing of competing reasonable inferences, which is impermissible. "Equally", in this context, refers to the existence of other reasonable inferences.

[30] Finally, as Justice Hill wrote in the 2007 decision of Pinnock (2007) ONSC 1123/06:

Where more than one inference can be drawn from the evidence, "only the inferences that favour the Crown are to be considered": R. v. Savant, at para. 18.

And later:

The preliminary inquiry judge is not to choose among competing inferences arising from the primary facts in evidence.

And further still:

(8) Some inferences are strong and capable of creating practical certainty while others are weaker: Lameman v. Canada (Attorney General), at para. 94. A reasonable and logical inference to be drawn from circumstantial evidence need not be an easy one to draw (R. v. Katwaru (2001), 153 C.C.C. (3d) 433 (Ont. C.A.) at 444) or indeed the most obvious or compelling inference: R. v. Munoz, [2006] O.J. No. 446 (S.C.J.) at para. 21-31.

[31] Accordingly, all reasonable inferences flowing from the evidence, beyond speculation will be resolved in favour of the Crown.

Party Liability

[32] Section 21(1) provides that every one is a party to an offence if they: (a) actually commit the offence or; (b) do or omit to do something for the purpose of aiding any person to commit the offence or; (c) if they abet or encourage the offence.

[33] Section 21(1) requires that a party engage in some conduct for the purpose of aiding or abetting the principal to commit the particular offence; in this case, the shooting. Section 21(2) renders parties liable for other offences committed during the crime, which the party knew or ought to have known would likely be committed during the course of committing the initial crime. R. v. Cadeddu (2013) ONCA. In this case, the Crown submits dangerous driving is such an offence.

[34] There must be evidence that the aider and abettor had prior knowledge of the crime the principal intended to commit, even if not the particular manner in which it would be committed R. v. Dooley, (2009) ONCA 910 and R. v. Chambers, (2016) ONCA 684.

[35] With that background, I turn to whether a reasonable jury could find that Sharrief Muhammad was a party to this shooting.

[36] I begin with the obvious; mere presence at a crime is not enough to render Sharrief Muhammad or anyone a party to the crime. That is true even if the party knows that the crime was going to be committed (unless he or she was under a duty). Further, being a passenger in a car that drives to and from a crime does not, on its own, implicate the passenger as a party even though that may be suspicious.

[37] To aid or abet a principal to commit a crime, the party must do something for the purpose of aiding or abetting the crime.

[38] Turning to this case, the evidence and reasonable inferences flowing from the evidence permit a reasonable jury to make the following findings:

1. Sharrief Muhammad was aware of gang dynamics and gang violence in Vanauley Walk and elsewhere, including rivalries between neighbourhoods.

Indeed, that is what he raps about. He was about to release another record on this very subject. That record was leaked two days before the shooting, then pulled and released officially the day after the shooting. It is the timing of the release of this song that has potential relevance as a motive for the shooting without ascribing any truth or confessional quality to his lyrics. It is the desire to promote his upcoming release.

2. A jury could find that there was an element of planning to this shooting, even if only a brief plan.

This inference is available from the manner of the shooting itself. The car was rented, even if not by these four. They drove to Regent Park in broad daylight. The shooting does not appear to be in response to any incident or altercation that had just occurred. The car arrives, stops, two men in the back get out with handguns drawn, one quickly fires, they get back into the waiting car and all four flee. The faces of Sharrief Muhammad and the others were partially obscured. From those factors, a jury could reasonably infer that they knew this shooting was going to occur and therefore, this shooting was planned.

3. A jury could find that Sharrief Muhammad was attempting to conceal his face.

This inference is reasonably available. It was a hot day. Sharrief Muhammad's hood was up, covering his head and tied tight and he was wearing sunglasses. One could not make out his face. Wearing a hood tied tight and sunglasses on a hot day may be ambiguous in many contexts but, in the context of the car stopping, for the purpose of doing this shooting, the men exit to shoot while the car waits for them to return permits a reasonable inference that Sharrief Muhammad was hiding his face. Again, this is an inference that a jury may make or have a reasonable doubt about, but it is a reasonable inference flowing from the evidence.

4. A jury could find that Sharrief Muhammad had prior knowledge of this planned shooting, particularly if they find he disguised his face.

5. Right after the shooting, Sharrief Muhammad took flight, which a jury might find probative.

I am not referring to the flight when the car fled, as he was not driving and may not have had time to exit before it fled, but to the running once the car stopped.

6. When caught just minutes after the shooting, Sharrief Muhammad wanted the public to know he was arrested for this shooting: "Tell the Toronto Star that Toronto rappers Caspar and K money were caught – I never did it but I want the clout so I could drop a banger".

Sharrief Muhammad's utterance on arrest that he wanted people to know he was arrested for this shooting to promote the release of a record has significance. A record, his song, Have You, was released the following day. He wanted to be seen as connected to this shooting, while also telling the police he had nothing to do with it. A jury may or may not reject his statement. All four men in the car have appeared in Menace Gang's music videos.

[39] A jury could find Menace Gang's desire to promote this record was the motive for this otherwise random shooting. A jury may think that Sharrief Muhammad was just a quick thinker and tried to capitalize on the shooting and arrest to promote his upcoming record but could find that that was in fact the motivation for the shooting. If they found promoting the record was the motive for the shooting, that, together with Sharrief Muhammad's presence at the shooting, in disguise, evidencing foreknowledge, could result in a finding that he encouraged the shooting. He was the one with a strong motive. He was present. He wanted the public to know he was implicated or at least caught for the shooting and therefore they could reasonably find he encouraged this shooting. It is an inference, or a chain of inferences, not the strongest one, but a reasonable one if they made those findings. These factors together, tips this case from mere suspicion to a reasonable inference that he abetted this crime.

[40] Accordingly, there is some evidence that Sharrief Muhammad was a party to this offence under 21(1), and a party to the dangerous driving under 21(2) as a dangerous getaway, after such a brazen shooting, mid-day, in downtown Toronto would have been obvious and known. As indicated in Sharrief Muhammad's factum, his implication as a party extends to many of the counts but, for reasons already given, does not extend to count ten, the defaced serial number count.

Criminal Organization

[41] Turning to whether there is a basis for committal to trial on the criminal organization count.

[42] The Crown submits that there is evidence from which a reasonable jury could find that this shooting was done for the purpose of benefitting the Project Originals, a criminal organization. In the alternative, the Crown argues that Menace Gang itself could be found to be a criminal organization and the shooting was for the purpose of benefitting that criminal organization.

[43] The Crown submits that Menace Gang's rap music videos should be admitted for two purposes. First, to show an association between the accused and others depicted in the video, including members of the Project Originals and, second, for the truth of the contents of the lyrics as declarations against interest. The Crown submits the probative value of that evidence outweighs its prejudicial impact.

[44] The defence accepts for the purpose of this preliminary hearing that there is some evidence the Project Originals are a criminal organization operating out of Vanauley Walk area and that the Muhammad brothers know some of the members of the Project Originals.

[45] It is also accepted that Hallal Gang and Sick Thugz are gangs and are rivals of the Project Originals and operate out of Regent Park and that a shooting in Regent Park would have the effect of benefitting the Project Originals.

[46] The defence further concedes that there is evidence that the Muhammad brothers would be aware of all of the above.

[47] However, the defence submits there is no evidence (or reasonable inference) that this shooting was done for the purpose of benefitting the Project Originals.

[48] The defence submits that, being aware of a criminal organization, knowing and befriending some of its members, and rapping about gang life does not lead to the inference that the shooting was done for the purpose of benefitting the Project Originals, even if they knew it would benefit the Project Originals.

[49] The defence submits that, based on the Crown's theory, anyone from Vanauley Walk who knows and raps about the Project Originals and commits a shooting in another part of the city which has the effect of benefiting the Project Originals, would be committed to stand trial for committing that offence for the purpose of benefitting a criminal organization. They submit there must be some evidence or a reasonable inference that the particular offence was committed for the purpose of benefitting the criminal organization.

[50] I agree with the defence submission. There is a distinction between an act that has the effect of benefitting someone or something, and an act done for the purpose of benefitting that person of group. There must be some evidence that the act in question was done for that purpose, which is absent in this case. Further, I note that Sharrief Muhammad was committed as a party to this shooting largely on the basis that the motive for the shooting was to benefit him or M.G. in relation to the release of his record.

[51] So, despite any suspicions, there is no evidence this shooting was done with the intention of it benefitting the Project Originals.

Could a Reasonable Jury Find Menace Gang to be a Criminal Organization?

[52] In the alternative, the Crown submits that a jury could find that Menace Gang is itself a criminal organization and this shooting was meant to benefit that organization. The defence submits that M.G. has never been recognized or found to be a criminal organization. That is not fatal of course.

[53] Turning to that issue.

[54] Section 467.1(1) defines a criminal organization as a group, however organized, composed of three or more people and has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit by the group or by any of the persons who constitute the group.

[55] There is no question that Menace Gang is a group composed of three or more people. The issue before me is: Is there some evidence from which a reasonable jury could find that Menace Gang has, as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed would likely result in a direct or indirect benefit to the group or any of the members? For ease of reference, I will refer to this as simply as committing serious crimes.

[56] The 2015 decision of R. v. Beauchamp et al (ONCA) 260 provides guidance on determining a group's main purposes or activities. The Court rejected undertaking a quantitative analysis of a group's main purposes or activities (i.e. is it 51%, 25%, 10% etc) but held:

[171] [A] group may have more than one "main" purpose or activity. Second, there is a distinction between "purposes" and "activities", and either one or the other can qualify. Third, only one of the purposes or activities of the group need be the criminal purpose or activity. Finally, it is not any purpose or activity that counts, but only a main one.

[57] The Crown submits that Menace Gang's music videos are necessary to establish that Menace Gang is a criminal organization. I agree that absent the music videos, there is no basis for a jury to find that Menace Gang is a criminal organization. DC Artinian's evidence that Menace Gang is a set of the Project Originals is afforded no weight. He had not heard of Menace Gang before this case and did not claim any expertise in relation to Menace Gang.

Admissibility of Videos

[58] Turning to the admissibility of M.G.'s rap videos.

[59] The videos clearly depict the individuals appearing therein, including the accused and some members of Project Originals. To the extent that the video shows those people appearing together, it is admissible as real evidence.

[60] However, the Crown seeks to have the Court consider the lyrics of these rap songs as evidence of the truth of their contents. Therefore, the Ontario Court of Appeal decision in R. v. Skeete is instructive. A review of Skeete is necessary.

[61] Skeete was charged with the murder of Mr. Mark, a Black male who testified against Skeete and a youth in earlier proceedings which resulted in the charges against Skeete being withdrawn and the charges against the youth dismissed. One week after the charges were dismissed, Mr. Mark was shot in the back of the head, allegedly by Skeete. The alleged motive was retaliation for testifying. While awaiting trial for the murder at the Don Jail, Skeete wrote a song called: Live from the Don which was uploaded to a website and was described in the liner notes as "a poetic presentation of some of the raw realities within the Don". The song contained the lyric: Real niggaz don't crack to the coppers, muthafucka.

[62] The Crown alleged that line of lyric described a "code of silence" which the Crown alleged was the motive for the killing. Skeete testified that the song was a reflection on life within the Don Jail and the lyric referred to inmates not complaining when they were moved from one range to another. Skeete argued the lyric was also evidence of bad character and was therefore presumptively inadmissible.

[63] The trial judge held that the lyric was relevant since it tended to establish motive. The reference to the code of silence supported an inference that the appellant was aware of the code, which rendered it more likely he believed in the code thus rendering it more likely that he enforced the code.

[64] Further, there was a close temporal nexus between the lyric and the killing as it was written while awaiting trial. After determining it was relevant, the trial judge went on to balance the probity versus prejudice. The probative value was high as it was evidence of the motive for the killing. With respect to prejudice, the judge did not consider the lyric to be evidence of bad character as it revealed no extrinsic misconduct and the judge could mitigate any potential prejudice with instructions.

[65] Skeete was convicted and appealed to the Court of Appeal.

[66] On appeal, Skeete argued the judge erred in three ways in assessing the probative value of the lyric. First, by failing to appreciate context was one of artistic expression rather than an admission to another person. Skeete argued that the judge recognized that the lyric may or may not have reflected Skeete's personal view but held that was an issue for the jury to consider rather than a factor on admissibility. Skeete further argued that the judge failed to consider the fact that the lyric was only a single line of lyric in the context of an entire song, the majority of which was not probative of anything relevant. He further argued that the judge undervalued the prejudicial effect of the lyric as promoting propensity reasoning given the association of rap music with young black men including young black criminals.

[67] The Court of Appeal held that:

In the absence of any specific rule of admissibility governing the reception of evidence of rap lyrics in a criminal trial, as well as any argument inviting the creation of such a bright-line rule, its reception at trial depends upon its relevance, materiality and compliance with any applicable rule of admissibility.

The Court noted that the threshold for relevance is not rigorous. The test is whether, as a matter of logic and human experience, does the existence of a particular fact, directly or indirectly, make the existence or non-existence of a material fact more or less probable. Materiality is determined by the specific allegations, the theories of the case as well as the substantive and procedural law. The Court held that the fact that a piece of evidence may give rise to competing inferences does not render it irrelevant.

[68] With respect to balancing the prejudice versus probity, the Court cautioned:

[A]rtistic expression is different in the sense that simply because an author has chosen to write about certain topics, it may not be reasonable to infer that he or she holds or acts in accordance with those views

And further:

…unlike the typical case involving admissions, we cannot infer, much less presume, that simply because an author has chosen to write or speak about a certain topic, she or he has acted in accordance with its terms.

[69] The Court generally endorsed the trial judge's analysis in Skeete but found that he erred by failing to consider the artistic nature of the lyric. However, despite this error, they held that the judge was correct in admitting the lyric, holding that the lyric was evidence that Skeete was aware of the code of silence and knowledge could support an inference of belief and belief could support an inference of a willingness to enforce the code of conduct.

[70] Therefore, the lyric was relevant to motive, and motive was a material issue.

[71] Having found the lyric relevant and material, the Court examined whether any evidentiary rule required the lyric to be excluded.

[72] The defence at trial argued the lyric was bad character evidence. The Court of Appeal held that the lyric –

…did not reveal the appellant as a person who had committed other crimes, or who had participated in other disreputable conduct apt to support a conclusion that he had a propensity or disposition to do the type of acts charged and was therefore guilty of the offence charged. Nor did the lyrics refer to other incidents likely to cause confusion in the minds of jurors. The lyrics reflected a state of mind, not an unrelated course of conduct.

[73] With respect to hearsay, the Court agreed with the trial judge that the lyric was an admission against interest, noting that the "against interest" component was not a requirement for admission.

[74] Satisfied that the evidence was relevant and material and not barred by any exclusionary rule, the Court held that admission of the lyric came down to a balancing of prejudice versus probity.

[75] The judge's balancing was not entitled to the ordinary deference since he failed to consider artistic self-expression in balancing prejudice versus probity. The trial judge held that was a factor for the jury to consider and that the accused could testify to mitigate any prejudice. The Court of Appeal held this was in error as artistic expression was also a factor on admissibility and the fact the accused could testify to mitigate the dangers was irrelevant to admissibility.

[76] In conducting its own balancing, the Court of Appeal agreed with the trial judge that the lyric had potential relevance for the reasons stated. Importantly, the lyric was temporally connected to this killing and there was a causal link as it had the potential to establish motive. The fact there were other inferences did not detract from those inferences.

[77] With respect to the artistic expression component of the analysis, the Court noted that Live from the Don was neither autobiographical nor fictional but was a biographical account of life at the Don Jail. With respect to prejudice, the Court held that:

It is significant that the lyric does not describe or otherwise support an inference of extrinsic misconduct by its author and the trial judge cautioned the jury against propensity reasoning.

[78] With that review of Skeete, I turn to its application to this case.

[79] The videos are artistic expression, but they depict the accused as members of Menace Gang, who are heavily involved in all manner of serious criminality, including drug trafficking, carrying guns, shooting at rivals, fearlessness about walking through rival neighbourhoods and threatening to shoot those who dare come outside.

[80] In Have You is the song released the day after the shooting and said to be, in part at least, the motive for this shooting. The rap contains the following lyrics:

You never shot a nigga have you

You never ran him down have you

Where Im from you have to

To claim my gang you have to

I can tell you never let it bang have you

Silly opp, I just made a milky rock,

Made em diddy bob

Fish on the deck flip and flop, ah

You aint never shot a nigger have you?

You aint never ran em down have you

And further:

On your block we playing tag too

I pray you come outside so I can tag you

Close range shooter, check my resume

Test the aim, 17 on your block

Test the aim, my name hold weight

Your name a featherweight

[81] The video Dat Nigga by Kareemallah Muhammad contains references to drugs and money and firearms and includes the line, Fucking with MG you gonna need Jesus. I'm in it for the money and I mean it.

[82] In Come Outside, Kareemallah Muhammad is rapping threats against unnamed rivals and he would kill them if they ever dared leaving home and there are lots of mothers crying because he is outside, and about his fearlessness about walking through their blocks and is seen walking through Regent Park.

[83] There is an obvious need for vigilance before admitting or giving any weight to rap music lyrics in a criminal trial. Using the methodology prescribed by Skeete, I turn first to relevance.

[84] The issue at hand is whether M.G. could be that of a criminal organization. More specifically, is one of its main purposes or activities the facilitation of serious crimes for the benefit of the gang or its members?

[85] The predominant theme of the videos it that M.G. commits serious crimes openly and without fear. The fact that the accused, as part of M.G., declare that they commit serious crimes is, on its face, relevant to the material issue of whether they commit serious crimes.

[86] Turning to the possible bases to otherwise exclude this evidence.

[87] The most obvious is bad character evidence, which is presumptively inadmissible unless its probative value significantly outweighs its prejudice.

[88] The videos are replete with declarations that M.G. is involved in all manner of serious crimes other than the shooting at hand. However, that evidence is not being led to show disposition or propensity for the purpose of showing they committed this shooting. It is being led to show they commit serious crimes as one of their main purposes, in order to establish that they are a criminal organization. One cannot establish that one of the group's main purposes or activities is committing serious crimes without calling evidence of them committing serious crimes. The only difference here is the evidence comes from their joint declarations in the videos, and the fact that those declarations may be untrue and are clearly artistic expression. Those factors do not affect the exclusionary analysis and are properly considered in prejudice versus probity balancing.

[89] Hearsay as a potential bar to admissibility is not an issue for the reasons expressed in Skeete.

Prejudice versus Probity

[90] Turning to the balancing of prejudice versus probity.

[91] The probative value is potentially quite significant to establish criminal organization.

[92] On its face, the collection of videos establishes that M.G. as a group declares itself to commit serious crimes with regularity and threatens anyone who challenges its status. If true, it is highly relevant to establishing that MG is a criminal organization. If true.

[93] In R. v. Dunkley, (2018) ONSC 2741, Justice Code was deciding the admissibility of numerous rap videos in a criminal organization homicide case. Dunkley was charged with killing someone he believed killed his brother. Dunkley was both a rap artist and a leader of a gang called the Monstarz. The defence conceded that Monstarz was a criminal organization and that Dunkley was one of its leaders.

[94] The rap videos in issue contained numerous entries of violence unrelated to the actual murder. The Crown also led evidence of an interview Dunkley gave where he stated that his rap was real, real life. It was real life drama.

[95] In excluding most of the videos and admitting only three edited videos, relevant to motive, Justice Code noted that the videos conveyed a general criminal disposition and that were not relevant the particular murder. However, he held: "Finally, the admission made by all three accused, that Monstarz is a "criminal organization", that the accused Dunkley is "one of the leaders" of the gang, and that the gang was "heavily involved in drug trafficking and other criminal activity" between 2011 and 2015 greatly reduces the need for any of this extremely prejudicial evidence."

[96] Code, J. also admitted the interview where Dunkley claimed his rap was real to enable the jury to have context when evaluating the music that was admitted.

[97] Returning to this case, in terms of the prejudice, the rap videos contain declarations of having committed and intending to commit serious crimes unrelated to this shooting. As stated earlier, the relevance of this evidence is not general propensity used to prove the accused committed this shooting but relates directly to establishing M.G. is a criminal organization. As such, the prejudice is both mitigated and to some degree, unavoidable.

[98] Turning now to the issue of artistic expression which is a crucial part of the analysis. The error in Skeete was not considering the artistic nature of the lyrics at the admissibility stage. Despite this error, the Court of Appeal held the judge was correct in admitting the lyric as it had potential relevance to motive and was temporally and causally connected to the crime. The fact there were other inferences did not detract from those inferences.

[99] In this case, whatever else, it is clear M.G. is a prolific musical group and these videos are artistic expression. One should not assume the lyrics are true simply by virtue of the fact that the group wrote or performed them. One would likely not assume that in other genres, and it would be equally improper to assume that in rap. While most artists draw from their life experience, one should not confuse the author of a creative work with his character.

[100] Without more, I would not admit this evidence.

[101] There is more in this case however. Like Dunkley, there is the interview Sharrief Muhammad and Kareemallah Muhammad gave where Sharrief Muhammad said, "Everything we rap about is our experience and shit. It's acts, you know what I'm saying. We're just doing what we do and then we rap about it." And then says, "I'm not fully rapping. I'm in the streets too." Kareemallah Muhammad says, "We're just doing what we do and then we rap about it. We live what we rap about".

[102] M.G.'s declarations of committing serious crimes permeates their music as the group's raison d'etre. That coupled with the interview declaring their rap to be true, enhances the potential that a jury would consider their declarations truthful. I note that Justice Code admitted that as well in Dunkley for the jury to determine if the lyrics, in light of the interview, were true.

[103] One final piece of evidence is relevant: the shooting itself. The four accused are members of M.G. and are implicated in this shooting. The shooting is similar to the lyrics in their music. Those factors, together with the interview are all pieces of evidence from which a jury may, not must, conclude the truth of the declarations in the video. A trier of fact who sees the accused rapping about shooting and other crimes, and heard the interview where they declare their rap is real, and sees evidence that they were also implicated in this shooting, may conclude that the declarations in the videos are truthful and that the group has, as one of its main purposes or activities, the facilitation of serious crimes for its benefit. They may not. They may have a doubt. They may consider it boasting in persona. But they could also conclude that it was truthful.

[104] If a jury makes these findings, they can conclude that M.G. is a criminal organization. It follows that a jury could reasonably find that the shootings were intended to benefit M.G. as a criminal organization, both in terms of enhancing their status as stated in their records but also, in terms of promoting their record.

[105] For these reasons, they will be committed to stand trial in accordance with these reasons.

Released: September 27, 2019

Signed: "Justice H. Borenstein"