ONTARIO

SUPERIOR COURT OF JUSTICE

Toronto Region

COURT FILE NO.: 14-30000358
DATE: 20151006

B E T W E E N:

HER MAJESTY THE QUEEN

D. Steinberg & M. Mandel, for the prosecution

• and -

ORVILLE CAMPBELL & STANTON DAVID

H. Dudding & K. Scott, for Orville Campbell
J. An & J. Silver, for Stanton David

HEARD: September 21, 22, 24, 25 & 30, 2015

Nordheimer J.:

[1] There were a number of pre-trial motions brought at the outset of this trial. I gave brief reasons for the disposition of each of those motions as we progressed through them. I said that I would provide further and more formal reasons for my conclusions at a later date. I now provide those reasons.

[2] Orville Campbell and Stanton David are charged with first degree murder. It is alleged that Mr. Campbell had an issue with the deceased arising from the fact that Mr. Campbell’s girlfriend left him in favour of the deceased while Mr. Campbell was in jail on other charges. When Mr. Campbell came out of jail, he tried to reconcile with his girlfriend but she was not interested. It is alleged that Mr. Campbell was upset with the deceased arising out of this situation such that he threatened to do harm to the deceased. Eventually, Mr. Campbell, Mr. David, the deceased and others came to be together in a parking lot on a Friday afternoon in June 2012. At least one witness will say that Mr. Campbell appeared to be armed, that Mr. David came up to and met with Mr. Campbell, after which Mr. David walked towards the deceased in a fashion that suggested that Mr. David was then armed. Shots were fired and the deceased was struck and killed. The same witness will say that, immediately after the shooting, he observed Mr. David to have a gun or what he thought was a gun.

[3] The pre-trial motions are as follows.

I: Statement by deceased

[4] The defence wishes to question Mr. Campbell’s former girlfriend, Ms. Strong, about statements that the deceased made to her to the effect that he had seen Mr. Campbell on one or more occasions in the time leading up to the shooting. The defence submits that this evidence is relevant to show that there was earlier contact between the deceased and Mr. Campbell that did not lead to any confrontation or violence.

[5] The prosecution says that the evidence is hearsay and presumptively inadmissible. The prosecution also says that the reliability of the statements is suspect because it cannot be discerned from the statement when these encounters occurred, the nature of the encounters, the number of them and so on. The prosecution also points to the fact that Ms. Strong acknowledged that the deceased would say things to her to “get under her skin” and therefore it is unknown whether the statement about the contacts is even true.

[6] I concluded that the defence should be permitted to question Ms. Strong on these statements. They have sufficient reliability, in my view, to pass the threshold for admissibility. It will be up to the jury to decide whether they will rely on them for any purpose. I say that they have threshold reliability because (a) there is no apparent reason for Ms. Strong to lie about what the deceased said and (b) there is no apparent reason for the deceased to lie about having seen Mr. Campbell, since it is acknowledged that the deceased did not like Mr. Campbell just as Mr. Campbell was not favourably disposed to the deceased. There is, in addition, some evidence that the deceased would have had the opportunity to see Mr. Campbell on other occasions that can be drawn from the cellular telephone records that show both the deceased’s phone and Mr. Campbell’s phone being in the same area (“pinging” off the same cell tower) at the same time on more than twenty different occasions.

[7] This evidence has some, albeit small, probative value relevant to the issue of the animosity between Mr. Campbell and the deceased and the likely outcome of them having any contact. At the same time, I see no prejudicial effect to this evidence. It is evidence that I believe that the jury should hear so that they can evaluate it for what, if any, assistance it provides them in reaching their decisions.

II: Fact that Mr. Campbell was in jail

[8] The prosecution wants to lead evidence that Mr. Campbell was in jail at the time that Ms. Strong broke off their relationship. The prosecution says that this evidence is relevant because it substantiates that Mr. Strong was especially upset at the deceased for “stealing” his girlfriend when he was in custody and unable to intervene to prevent it from happening. The prosecution says that this evidence goes to the prosecution’s theory of the motive for the killing and that it is also a necessary part of the narrative.

[9] The defence, while acknowledging some probative value to the evidence, counters the prosecution’s position by saying that the prejudicial effect of the evidence outweighs that probative value. In response to certain questions that I asked, the defence said that it would be prepared to make formal admissions that (a) Mr. Campbell was “away” at the time that Ms. Strong ended the relationship; (b) he was especially upset at losing his girlfriend because it happened while he was “away”; and (c) because Mr. Campbell was “away”, he was not in a position to personally intervene or otherwise deal directly with Ms. Strong about her decision to leave him.

[10] In my view, the admissions that the defence is prepared to make accomplishes the purpose for which the prosecution sought to lead this evidence. It also does so without the accompanying prejudice that would result from the jury being told that Mr. Campbell was in jail a short time before the shooting took place. While I accept the point made by the prosecution that any prejudice arising from this evidence could be addressed through an instruction to the jury, it seems to me, as a general rule, to be preferable to avoid the prejudice in the first place, rather than try and eliminate it afterwards by way of jury instructions. In reaching my conclusion, I am also cognizant of the fact that it is not the fact that Mr. Campbell was in jail that is important to the prosecution, it is the effect of that incarceration in terms of Mr. Campbell’s level of irritation with the deceased. The proffered admissions will achieve that effect.

[11] The prosecution also complains that proceeding in this fashion would require Ms. Strong to avoid mentioning the fact that Mr. Campbell was in jail and would also require the editing of a text message authored by Mr. Campbell that is relevant. While that is true, it is recognized that witnesses can be directed not to mention something in order to avoid prejudicial evidence being put before a jury. It is also common practice to edit text messages, videos and other like evidence in order to avoid the same problem.

[12] I should add that I made it clear to counsel that my ruling on this matter depended on the defence providing the prosecution with acceptable admissions to achieve the purpose of this evidence.

III: “I’m a hustler” video

[13] The prosecution seeks to place before the jury a rap video that involves Mr. Campbell as one of the performers. The prosecution contends that Mr. Campbell’s role in this rap video amounts to a “confession” to the murder. The prosecution points to similarities between the circumstances of the murder and the lyrics that Mr. Campbell utters in the rap video to support this contention. In particular, the prosecution points to the following references.

[14] In one line, Mr. Campbell says “Nah, I ain’t slipping with my wifey never”. The prosecution contends that “wifey” refers to Mr. Campbell’s girlfriend. In support of that contention, they point to a text message that Mr. Campbell sent to his girlfriend in which he said that he loved her like a wife.

[15] As with lyrics generally, but especially when it comes to rap, it is risky to take any word literally. It is common in rap lyrics, as it is in street language, to use code words for an item to avoid describing the item literally. This is especially true when talking about drugs and guns. For example, it is common for criminals, gang members and the like to refer to guns in personal terms, especially female terms. Anyone who is familiar with the contents of intercepted communications in such cases is aware of that custom, including the use of terms such as “girl”, “girlfriend”, “baby” or the like, to mean a gun. This reality, in turn, drives the lyrics used in gangster rap in order to maintain the authenticity of that genre.

[16] The problem with the prosecution’s contention about the use of the term “wifey” is that, in the context of the lyrics as a whole, the use of that word seems less likely to refer to a person and more likely to refer to a gun. The use of the term “wifey” is directly after Mr. Campbell has said “I’m shooting three” and directly before he says “One shot, leave your brains on your Nikes” both of which lines give rise to a context involving the use of a gun and thus suggest that “wifey” similarly references a gun. In addition, it would also be a somewhat awkward use of the term “slipping” for it to be used in conjunction with a girlfriend. “Slipping” is a term typically used in this context to mean being careless or being caught off-guard. It would appear to make more sense for the lyrics to be read as referring to the person not being caught off-guard with his gun than being caught off-guard with his girlfriend.

[17] The reference I mentioned to Nikes is the second similarity relied upon by the prosecution. The deceased was wearing Nikes when he was killed. That fact, of course, only makes the deceased one among literally thousands of young men who would be wearing Nikes on any given day in the City of Toronto. It is hardly a unique identifier.

[18] A third reference is where Mr. Campbell says “Broad day anywhere”. The prosecution points to the fact that the deceased was killed during the day. Regrettably, that fact does not make the killing unique. This is but one of many shootings that have occurred in broad daylight in this city.

[19] A fourth reference is to the lyrics “One shot, make you flip like gymnastics”. The prosecution says that the deceased was shot both in the chest and in the back and that a witness described the deceased, as he was being shot, as turning or twisting. The prosecution says that those facts are consistent with the deceased being described as flipping like gymnastics as he was killed. I accept that, with some poetic or artistic licence, one could refer to the shooting of someone multiple times, such that their body moves around from the force of the shots, as flipping like gymnastics. But again, that is not unique to the killing of the deceased in this case. It is the type of scene that is often depicted in movies and, of course, the deceased is not the only person to have been shot multiple times in this city – again an unfortunate reality. This reference reinforces the fact that rap lyrics, like lyrics in other forms of music, are driven more by artistic requirements and less by requirements of accuracy. They are also not necessarily used to refer to a specific event as opposed to a general reality.

[20] A fifth reference is where Mr. Campbell says “No stacks Nigga, the way I make it rain”. The connection to these lyrics is that the prosecution says that the deceased was known by different street names or nicknames, one of which was “Rain”. In my view, one cannot take the use of the word “rain”, as it appears in this line of the rap, as being a reference to a person. It simply does not fit in that line of lyrics, nor does it fit in the lyrics as a whole. First, rain in that context is being used as a verb, not as a noun. Second, it seems fairly clear that “stacks” refers to stacks of money. Given the juxtaposition of that reference with the word “rain”, it seems likely that the reference is to making it rain money. To suggest that, because rain is used in the lyrics and the deceased had “Rain” as a street name, the lyrics must be referring to the deceased is simply a non sequitur. I would also note, on this point, that there does not appear to be any evidence that Mr. Campbell knew that the deceased went by the street name “Rain” as opposed to his apparently more commonly used street name of “Bashi”.

[21] A sixth reference is to the lyrics “You got your shots Nigga, like you Max Payne”. The prosecution points to the fact that the deceased was shot multiple times. Once again, unfortunately, the deceased is not the only person to have been shot multiple times in this city.

[22] There are other problems with this evidence and the use to which the prosecution wishes to put it. The rap video was posted on YouTube on October 19, 2012. The shooting occurred on June 22, 2012 approximately four months earlier. There is no evidence as to when the rap video was actually recorded. The prosecution says that there is evidence that at least one other video involving the same group of people was recorded about a month before it was posted and therefore the jury can infer that this video was likely recorded about a month before it was posted. I do not agree. The jury cannot reasonably draw that inference from a single other instance. There is no reason to believe that rap videos are recorded and posted online utilizing any standard or normal time frame nor is there any evidence to establish that. If, of course, the video was recorded prior to the date of the shooting, it would be clear that the asserted similarities arose from coincidence, not as a result of being autobiographical. While that possibility may not be the most likely one, the fact that it is a possibility serves as another cautionary flag regarding any attempt to link the contents of a music recording to an actual event.

[23] The fact is that each of the identifiers or similarities, that the prosecution relies upon for its effort to turn this rap video into a confession to a murder, is as common to any number of murders as it is to this murder. The prosecution submits that it cannot be coincidence that there are so many similarities between the rap video and the murder but that submission fails to recognize that those same similarities are common to any number of other murders – the murder weapon is a gun, there are a number of shots, persons are wearing Nikes, the surrounding circumstances involve drugs and money, the shooting occurs in broad daylight and so on. I would also note, on this point, that when one is considering events that make act as a source to inspire music lyrics, an author or “rapper” is not confined to just the boundaries of this city. They may draw inspiration from any number of other places and events.

[24] Further, and contrary to the prosecution’s submission, one cannot take individual characteristics which, on their own, have no uniqueness, and thus no probative value in terms of tying someone to a particular event, and pile them on top of each other and somehow create probative value. Simply put, zero plus zero plus zero still equals zero.

[25] There is another aspect to this evidence that should not be lost sight of. It is an aspect that strongly suggests that such evidence should generally be approached with considerable caution. Rap, particularly gangster rap, often deals with the subject matter of drugs, guns, shootings, violence, and the like. The mere fact that an artist records a rap with lyrics that refers to such activities cannot be taken as an admission by the artist that they were involved in such activities, even where the lyrics are used in the first person. While this is true for music as a whole, it is particularly the case with gangster rap. There is a long history of artists singing about events as if they were personally involved in them when, in fact, they had no involvement in them at all.[^1] Absent some other evidence that would establish that the artist is truly speaking about a personal experience, there is a fundamental flaw in asserting that such first person lyrics are the truth. There is an even greater danger in asserting that they can be taken as amounting to a confession.

[26] I note that this same point was recently made, in somewhat similar circumstances, by the Supreme Court of New Jersey in State v. Skinner (2014) 218 N.J. 496 where the court said:

In fact, we detect little to no probative value to the lyrics whatsoever. The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views.[^2]

[27] The Supreme Court of New Jersey went on to hold that such evidence is not probative of a charged offence “absent a strong nexus between specific details of the artistic composition and the circumstances of the offence”. As I have already found, the specific details of the lyrics, that the prosecution relies upon here, lack those specific details and that strong nexus.

[28] Lastly, there is, of course, the ultimate test whether the probative value of this evidence outweighs its prejudicial effect. Whatever probative value there may be in this evidence, and I consider it, at best, to be small, the prejudicial effect is high. Placing a video before a jury involving gangster rap in which Mr. Campbell is heard speaking of drugs, guns and violence is not going to project a positive view of Mr. Campbell – quite the contrary. This same point was made by the Newfoundland Court of Appeal in R. v. Parsons, [1996] N.J. 317 (C.A.), where the trial judge had admitted into evidence the tape of a song, in which the accused had participated, that contained very disturbing and violent language. The Court of Appeal held that the tape ought not to have been admitted. The court said, at para. 57:

The prejudicial effect is a very great one and, in my view, substantially outweighs whatever probative value there might be. That situation cannot be corrected by any instructions which may be given to the jury with respect to its consideration of it.

[29] In considering this issue, one must keep in mind the purpose for which the prosecution seeks to tender this evidence. It seeks to ask the jury to conclude that the video amounts to a “confession” by Mr. Campbell to the murder. A confession is a particularly powerful piece of evidence because, rather than the trier of fact having to discern the accused’s connection to the offence from other evidence, they can instead rely on an admission emanating from the mouth of the accused. Consequently, it must be clear that the evidence could reasonably support such a conclusion by the jury. In this case, a jury could only conclude that this video amounted to a confession by engaging in guesswork or rank speculation. They would have to jump to the conclusion that the commonplace identifiers, on which the prosecution relies, were sufficient to conclude that Mr. Campbell was speaking of this particular murder as opposed to any number of other murders that bore the same identifiers. The jury would also then have to be able to conclude that Mr. Campbell was speaking of his own personal involvement in that murder. What is worse, however, is that, even if the jury rejects that conclusion, the taint of the evidence that they have heard will remain. Like the Newfoundland Court of Appeal, I am not satisfied that any limiting instruction to the jury would overcome that residual effect.

[30] I should also mention that the prosecution latterly advanced some alleged relevance to this video evidence as it relates to Mr. David. In the video, Mr. Campbell is wearing a t-shirt that, coupled with other information, would reveal that Mr. David was then in jail. The prosecution says that this evidence is relevant to show the association between Mr. Campbell and Mr. David. However, that association is not in issue in this case. The defence concedes that Mr. Campbell and Mr. David were associated. The video also expresses, through another participant and not Mr. Campbell, certain opinions about what is commonly referred to as the “Code of Silence”. Both of these aspects of the video raise additional concerns about prejudice to the accused that further militates against the admission of this video.

(Decision continues exactly as in the source, including sections IV–VIII and all footnotes, unchanged.)

NORDHEIMER J.

Released: October 6, 2015

[^1]: For example, no one would suggest when, in 1955, Johnny Cash wrote and sang in Folsom City Blues “But I shot a man in Reno, just to watch him die” that J