ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
COURT FILE NO.: 11-10000133
DATE: 20120314
B E T W E E N:
HER MAJESTY THE QUEEN
M. Humphrey and K. Simone , for the applicant
Applicant
- and -
LAMAR SKEETE
R. Richardson & F. Javed, for the respondent
Respondent
HEARD: March 1, 7 & 8, 2012
Nordheimer J.:
[ 1 ] Mr. Skeete is charged with first degree murder. The prosecution seeks a ruling on the admissibility of a rap song recorded by Mr. Skeete. At the conclusion of the hearing, I ruled that the evidence was admissible. I said that I would provide full reasons for my conclusion at a later date. I now provide those reasons.
[ 2 ] This evidentiary issue arises in the following context. It is alleged that Mr. Skeete shot and killed Kenneth Mark in retaliation for Mr. Mark having given evidence against Mr. Skeete and his younger brother on an earlier charge of attempted murder. That earlier charge arose from the fact that someone shot Mr. Mark with a shotgun while Mr. Mark was sitting outside a housing complex. Mr. Mark was injured but not killed by the shotgun blast. Mr. Mark eventually told the police that Mr. Skeete’s younger brother, J.B., had shot him and that Mr. Skeete was present when this happened. Mr. Skeete and J.B. were arrested and charged with attempted murder. Mr. Mark gave evidence at a preliminary hearing and both Mr. Skeete and J.B. were committed for trial. On December 12, 2009, the day of the trial, the charge against Mr. Skeete was withdrawn by the Crown on the basis that there was no reasonable prospect of conviction. The trial proceeded against J.B. alone. On December 17, 2009, J.B. was acquitted of the charge.
[ 3 ] Twelve days later, on December 29, 2009 at approximately 9:45 p.m., Kenneth Mark left a pizza store with some food he had purchased. As he walked up the street from the pizza store, a male ran up behind him and shot him once in the back of the head, killing him instantly. On January 14, 2010, Mr. Skeete was arrested on a charge of first degree murder. Two youths were also arrested and charged with first degree murder. Subsequently, the charge against one of those youths was stayed. The other youth is scheduled to go to trial next month. It is the prosecution’s theory that Mr. Skeete was the shooter and the other youth acted as a lookout.
[ 4 ] Mr. Skeete has been held in custody since his arrest. At some point, Mr. Skeete, who considers himself to be a rap artist, recorded a rap song while he was in custody. The exact time of this recording is unknown although there is some suggestion it may have occurred in August, 2011. In some manner that is also unknown (although the best guess is by telephone) the rap song was transmitted out of the Toronto (Don) Jail, the institution in which Mr. Skeete was being held. The rap song was recorded in four parts. Each of those parts was subsequently posted on a website on the Internet.
[ 5 ] This trial commenced on January 16, 2012 with pre-trial motions. The evidence on the trial proper began on February 1. At some later point, the prosecution learned from a witness about the existence of the website where this rap song was posted. A check was made and the website was located. On the website, the rap song recorded by Mr. Skeete appears under the title “Listen: Ammo – ‘Live from the Don’ PT. 1”. An introduction to the song then follows. It begins by noting the following:
Ammo aka Lamar Skeete is a 20 year old MC who excels at painting vivid pictures through his bars. The lyricist is currently awaiting trial in Toronto’s infamous don jail.
It has been admitted for the purposes of this trial that Mr. Skeete’s nickname is “Ammo”.
[ 6 ] The interest of the prosecution in this song relates to Part 2 of the song. At the end of that part, Mr. Skeete raps:
Real niggaz don’t crack to the coppers, muthafucka.
[ 7 ] The prosecution asserts in this case that a “code of silence” existed in the community in which Mr. Mark lived, that is, that it was understood that people do not co-operate with the police about criminal activity that goes on and, if they do, there will be consequences. The prosecution says that these lyrics demonstrate not only the existence of that code of silence generally but also that Mr. Skeete believes in that code of silence. It is central to the prosecution’s theory in this case that Kenneth Mark was shot and killed for telling the police about the attempted murder and for giving evidence against Mr. Skeete and J.B. The prosecution has been permitted, at this trial, to lead evidence of the earlier shooting, the attempted murder charge and the ensuing proceedings as evidence of motive for the murder. In addition, the prosecution has lead evidence from a police officer, who was accepted and qualified as an expert on the existence of the code of silence, regarding the nature and meaning of the code of silence.
[ 8 ] The defence objects to the admission of this evidence on two principal grounds. One is that the evidence is fundamentally bad character evidence, that it is prejudicial and that the prejudice outweighs any probative value. The other is that this evidence was being offered as the prosecution was about to conclude its case and the lateness of the offering of this evidence works an unfairness on the defence because they do not have sufficient time to respond to it.
[ 9 ] I will address the second ground first. I am less sympathetic for the position of the defence in this situation than I would normally be where late evidence is offered by the prosecution. Unlike the usual situation where the late evidence is completely unknown to the defence, in this case the evidence being proffered comes directly from the accused. Mr. Skeete has known about this piece of evidence since he recorded the rap song and arranged to post it on the Internet for anyone to hear. Whether Mr. Skeete advised his counsel of the existence of the rap song is something of which I am unaware and, in any event, is something that it would not be appropriate for me to inquire into. What is clear is that Mr. Skeete knew about the rap song and, consequently, it does not lie with Mr. Skeete to suggest that he is somehow caught by surprise when he now finds himself confronted with a piece of evidence of his own creation that the prosecution only recently discovered.
[ 10 ] As part of their complaint on this point, defence counsel have advised me that when they first learned about this issue, they approached Legal Aid Ontario regarding the possibility of retaining an expert to comment on the meaning of the rap lyrics. Counsel told me that Legal Aid Ontario had not, as yet, responded to their request. On this point, I would note that the court was not asked to become involved with any issue regarding Legal Aid Ontario and, in particular, was not asked to require Legal Aid Ontario to respond within a set timeframe. In any event, I questioned during the course of the argument whether an expert was appropriately involved in the interpretation of the words used in the rap lyrics. In my view, a jury is quite capable of interpreting the words on their own without the assistance of an expert. Unlike some rap lyrics, the words used here are not so unique or unusual that their meaning cannot be understood without the assistance of an expert. As was established in R. v. Mohan , 1994 80 (SCC) , [1994] 2 S.C.R. 9, the opinion of an expert is only necessary if it provides information that is likely to be outside the experience and knowledge of a jury. While there are some portions of the rap song where an expert might be necessary to assist the jury in understanding the words used, the lyrics in issue here do not fall within that category. So whether there was an expert that could have assisted the defence (and no evidence was placed before me that such an expert exists) becomes irrelevant if expert evidence is not appropriately lead on the issue.
[ 11 ] In the end result, I am not persuaded that, in these particular circumstances, the late tendering of this evidence creates an unfairness to the defence that would, in and of itself, preclude the admissibility of the evidence.
[ 12 ] In terms of the first and main ground, I have been referred to three authorities. It is not surprising that there is not a lot of existing authority on the issue given the uniqueness of the issue. In R. v. Parsons , [1996] N.J. 317 (C.A.), on a charge of first degree murder, the Newfoundland Court of Appeal held that the trial judge had improperly admitted a song composed by a band of which the accused was one member. The accused was charged with killing his mother. The song contained many lyrics referring to killing your mother, killing your father and killing your parents. The Newfoundland Court of Appeal held that when one considered a number of factors (that I will refer to below), the probative value of the song as evidence was deficient and was outweighed by the prejudicial effect. I will return to the decision in Parsons in a moment.
[ 13 ] In R. v. Liu , [2002] O.J. No. 5522 (S.C.J.) , on a charge of first degree murder, the court refused to allow the prosecution to put into evidence a Christmas card that the accused had sent to one of the investigating police officers. There was a possible connection by analogy between the Christmas card and a piece of evidence in the case. Because there were different possible explanations for why the accused had sent the card to the officer, the court excluded the card as evidence based on its conclusion that the probative value of the card was tenuous but the prejudicial effect was great.
[ 14 ] In R. v. Leslie , [2005] O.J. No. 2539 (S.C.J.) , on a charge of second degree murder, the court refused to allow the prosecution to put into evidence certain rap lyrics but did permit the prosecution to put into evidence one particular rap lyric that referred to a specific calibre and type of firearm – the same firearm that had been used in the shooting. In so concluding, McCombs J. said, at para. 8:
Therefore, in my judgment, it is open to a jury to infer from the fact that Mr. Leslie was in possession of the rap lyrics making reference to a 40 calibre Kel-Tec, that Mr. Leslie had knowledge about this homicide that had never been made public. I appreciate that the lyric’s contents are open to other interpretations, but in my judgment, that is what juries are for.
[ 15 ] In my view, the particular rap lyrics that the prosecution seeks to place in evidence in this case are admissible. The lyrics are relevant evidence regarding the code of silence and the possible belief of Mr. Skeete in that code of silence. The situation here is different from the one that was presented in Parsons in the following ways:
(i) While I accept that the evidence has a discreditable element to it, it is not as inflammatory as were the lyrics in the song in Parsons ;
(ii) This evidence has a particular temporal connection to the events in issue given that Mr. Skeete chose to record this rap song, including these specific rap lyrics, when he was being held in custody at the very time that he was facing this charge and with the knowledge of what the prosecution was going to allege was his motive for shooting Mr. Mark;
(iii) The rap song is Mr. Skeete’s creation alone. It is not a colloboration in which Mr. Skeete made some unspecified contribution;
(iv) The rap song has probative value to the prosecution’s theory and ties directly into the evidence that the jury has heard regarding the existence of a code of silence.
[ 16 ] I do not accept the defence position that the evidence of the rap song is bad character evidence and is presumptively inadmissible. The lyrics of the song as a whole do not reflect badly on Mr. Skeete as a person. The whole thrust of the rap song is Mr. Skeete’s recounting of the problematic conditions in the Toronto (Don) Jail where he is being held in custody. Those conditions include violence, inadequate facilities, lack of fresh air/recreation, drug use, etc. Mr. Skeete is not the architect of those problems. He is experiencing them as a consequence of being held in custody on a criminal charge. I do not believe that a jury would punish Mr. Skeete for the troubling realities of detention facilities in this city.
[ 17 ] What the particular lyrics may constitute, depending on the interpretation that the jury gives to them, is an admission against interest by Mr. Skeete. An admission against interest is presumptively admissible. As noted by McLachlin J. in R. v. Terry (1996), 1996 199 (SCC) , 106 C.C.C. (3d) 508 (S.C.C.) at para. 28 :
An admission against interest made by the accused is admissible as a recognized exception to the hearsay rule, provided that its probative value outweighs its prejudicial effect.
[ 18 ] The only issue then becomes whether the probative value of the evidence is outweighed by its prejudicial effect. The defence concedes that there is some probative value to the evidence. While the defence submits that the probative value is slight, I do not accept that submission. In my view, the probative value of this evidence may be more significant than that, again depending on the view that the jury takes of it. If the jury concludes that the particular lyrics demonstrate the adoption by Mr. Skeete of the code of silence then that conclusion would tie directly into the prosecution’s asserted motive for the killing.
[ 19 ] The defence also submits that the prejudice associated with the evidence is high. Again, I do not agree with that submission. The prejudice, properly understood as the possible misuse of the specific lyrics, is very low. Indeed, it is hard to see how the jury would misuse the specific lyrics since they will conclude either that the lyrics show that Mr. Skeete adheres to the code of silence or that the lyrics merely represent a performance by a rap artist with no personal adoption of the meaning of the lyrics. If the concern is that the jury might ascribe an adherence by Mr. Skeete to the code of silence that he does not, in fact, personally hold, notwithstanding his performance and publication of the rap song, then it seems to me that it falls to Mr. Skeete to offer that explanation to the jury so that they can evaluate it. This latter prejudice that the defence identifies is the same for any accused person who chooses to make a statement that is relevant to the charge that the person faces. That is not, to my knowledge, the type of prejudice that operates to exclude the statement as admissible evidence when it is otherwise relevant to an issue in the proceeding.
[ 20 ] I accept that the degree of prejudice may increase if the entire rap song is played for the jury because it refers to the many other aspects of life in the detention facility that I earlier mentioned. The possibility exists that a jury may might take from the rap song that Mr. Skeete either participates in those aspects, i.e., assaults, drug use, etc., or that he is glorifying them. There is a risk that the jury might then think of him as a bad person who is more likely to have committed the offence. That concern, however, can be adequately addressed through a proper jury instruction. The jury can, and will, be instructed not to use this evidence in that fashion just as a jury would be instructed not to use prior convictions of an accused person to conclude that he is the type of person who would have committed the offence.
[ 21 ] In the end result, I concluded that the rap lyrics were admissible. Further submissions were then heard regarding the manner in which the rap lyrics should be placed before the jury – a subject that I need not address in these reasons.
NORDHEIMER J.
Released: March 14, 2012
COURT FILE NO.: 11-10000133
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
LAMAR SKEETE
Respondent
REASONS FOR DECISION
NORDHEIMER J .
RELEASED: