Court File and Parties
Court File No.: CR-23-70000504-0000
Date: 2025-04-28
Court: Ontario Superior Court of Justice
Between:
His Majesty the King
and
Noah Anderson
and
Junior Jahmal Harvey (Defendants)
Appearances:
- Karen Simone and Alexander Merenda, for the Crown
- Melina Macchia, for the Defendant, Noah Anderson
- Kabir Sharma, for the Defendant, Junior Jahmal Harvey
Heard: April 8-9, 2025
Judge: G. Roberts
Introduction
[1] Defence counsel seek to qualify Dr. Jabari M. Evans as an expert in the area of “the history and social context of rap, specifically drill rap” and lead evidence about the nature and conventions of drill rap. Defence counsel wish to do this so that the jury will be able to understand and assess the rap Peppered, played to the jury by the Crown, and decide what if any inferences can be drawn from it.
[2] Defence counsel are adamant that Dr. Evans must be permitted to testify to give this history and social context. They argue that a jury instruction will not be sufficient to give the jury the necessary background information to assess Peppered, particularly in light of powerful and pernicious racist stereotypes associated with drill rap.
[3] The Crown urges that a jury instruction will adequately equip the jury to critically assess Peppered without the significant prejudice Dr. Evans’ evidence will bring to the trial process. Permitting Dr. Evans to testify will add only confusion and prejudice, including reasoning prejudice. His evidence also has the potential to significantly exacerbate the concern about general propensity prejudice associated with Peppered, as Dr. Evans will likely be cross-examined on numerous incidents where violent rap songs were written about violent real-life events (i.e. instances where rap lyrics were not fictional). Further, the Crown is concerned that Defence counsel seek to use Dr. Evans as a “back door” to put their defence before the jury without subjecting their clients to cross examination (for example eliciting evidence from Dr. Evans that drill rappers often rent hotel rooms, and photograph fake guns to support false claims about violent acts).
Evidence
The Rap
[4] The Crown seeks to rely on the rap Peppered as circumstantial evidence showing association between the accused, motive/animus, and identity. I provided reasons for admitting the rap in R. v. Anderson, 2024 ONSC 5489, paras. 123-130, and will not repeat them here. The Crown takes the position that parts of Peppered are true (for example, “Your block is getting peppered,”… “we some RP killas,”… “We put the car in reverse; Ya we do our research; Left him DOA, Flip n’ flopping like a seizure!” ... “Head shot, he had a seizure,” … “JM call em jeeper, creeper, On your block, I was creepin” … “They know RD quick to leave em, ah”), but does not seek to rely on Peppered as a confession.
[5] A recording of the rap, and lyrics for the chorus and sub-chorus, were found on Noah Anderson’s red iPhone, which was seized by police at the time of Mr. Anderson’s arrest on December 13, 2021, and subsequently cracked and searched pursuant to a warrant. The rap was the subject of an agreed statement of facts at trial (ASF#2 made exhibit 14-2) which included the following:
- By November of 2021, all four suspects or persons of interest (POI), were credited as co-creators of the rap. The four suspects, and their nicknames were as follows, in the order that the police numbered them: Rajahden Angus-Campbell (RD); Junior Jahmal Harvey (JMoney); Jabreel Elmi (Mr. Wallahi); Noah Anderson (Mr. WalkThru).
- A first draft was written, and an initial recording made, within 11 days of the shooting. The first note containing what appear to be the lyrics was made September 27. On September 29, 2021 an audio file labelled “Mr. Walk Thru x RD x JMoney – Peppa.mp3” was sent from Mr. Anderson’s phone to the phone number associated with Mr. Harvey via a text messaging app.
- The agreed facts strongly suggest that both Mr. Anderson and Mr. Harvey were involved in an initial recording of the rap on September 28: Mr. Anderson’s text on September 25, 2021 asks about studio time “for me and Jmoney”; both their cell phones were in the vicinity of a studio in Woodbridge on September 28; on September 28 a LYFT is ordered from 60 Marycroft Ave (which is the address of a music studio) to Mr. Harvey’s address; on September 28, an audio file labelled “Mr. WalkThru x RD x JMoney – Pepp.mp3” is sent to thesplashfactory (which is associated to a music studio).
- Three of the four suspects, including Mr. Anderson and Mr. Harvey, appear to be involved in a planned performance of the song. On November 30, 2021, an email with the attachment, “Mr. WalkThru x RD x (Mr. Wallahi) x JMoney) – Peppered.mp3” was sent from the email address associated to Mr. Anderson to jabreel.elmi94@gmail.com. The email read as follows:
You do a 16. JMoney does a 8 for the gap so your part goes hard then slows down a bit then boom jmoney comes in and see if Eman can double jmoneys length at his part, call me if anything.
[6] ASF #2 provides some additional context for Peppered. It is agreed that the red iPhone contained other rap lyrics, including raps with both violent and non-violent themes, dated before and after the time of the shooting. Further, the lyrics contain reference to things which may not be true. For example, if the lines “He chirpin’ on the Twitter” and “He shakin’ ass on insta” refer to the victims of the shooting, there is no evidence any of them did anything like that.
The Rap Expert
[7] Dr. Evans is a professor of race and media at the School of Journalism and Mass Communication (SJMC) at the University of South Carolina. He researches, writes (including in peer-reviewed journals), and teaches in the area of Black culture, and has specifically researched, written and taught about drill rap.
[8] Dr. Evans was asked to provide an opinion about drill rap, how it is similar to and different from other forms of rap, its common themes, how social media influences content, its emergence in Toronto, and its first-person story telling conventions. He was also asked whether Peppered was drill rap, and “what inferences, if any, can reliably be drawn from these songs about real world events.” His report addresses all these topics.
[9] During the voir dire, defence counsel indicated that they sought to qualify Dr. Evans only to give background evidence about the history and context of drill rap, and they were not seeking to have him opine on the lyrics of Peppered.
[10] Dr. Evans explained that drill rap is a form of artistic expression which involves first-person “capping” (bragging/exaggerating/lying) about prowess in committing violent acts, making money, and sexual skill. This is done to seek influence or clout (“clout-chasing”).
[11] Dr. Evans explained some of the ways drill artists engage in capping. For instance, they may borrow designer clothes, use imitation guns to appear more violent, rent cars, pay women to appear to be girlfriends, go to liquor stores and buy one bottle of expensive champagne and repeatedly use the bottle. They may take vacations and do entire photoshoots and bleed out the content slowly on social media, so the vacation appears extended. They may go to rival territory and take pictures and then release them on social media as taunts.
[12] During the voir dire, defence counsel indicated that they were not laying out the expert evidence in its entirety but only enough to demonstrate that it should be admitted at trial.
The Test for Expert Evidence
[13] The test for the admission of expert evidence involves two stages. There is an initial (objective) threshold assessment of whether the classic R. v. Mohan, [1994] 2 S.C.R. 9 criteria have been established: relevance, necessity, absence of an exclusionary rule, and a properly qualified expert.
[14] If the threshold criteria are established, the trial judge moves to a second (more subjective) gatekeeping analysis, which involves a cost benefit analysis of the probative value of the evidence and its potential prejudicial effect. This weighing involves a reconsideration of the criteria from step one in the context of the trial process: the value of the evidence, including its reliability and the impartiality of the expert, and how important the evidence is, considered against the risks it will involve, including considerations like the time it will consume, its potential for prejudice and confusion, and the risk that the trier may not be able to effectively and critically assess it. Ultimately, the trial judge must be satisfied that the benefits of the proposed evidence exceed the potential risks its poses to the trial process: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, para. 54; R. v. Abbey, 2009 ONCA 624, para. 24.
[15] In the context of expert evidence tendered by the defence, the balancing at the second stage is informed by the Seaboyer standard, which provides that defence evidence may only be excluded where the prejudicial effect of the evidence substantially outweighs the probative value: R. v. Johnson, 2019 ONCA 145, para. 59.
Application
The Threshold Mohan Requirements
[16] There is no dispute that Dr. Evans’ evidence, at least the portion of it providing background and context about drill rap, is logically relevant to the jury understanding and assessing Peppered.
[17] The essential issue on the admissibility voir dire is whether or not Dr. Evans’ evidence is necessary. While necessity must not be judged by too strict a standard, the evidence must be necessary in the sense that the jury needs it to correctly appreciate and evaluate the rap lyrics: R. v. D.D., 2000 SCC 43, paras. 47, 57. As the Court of Appeal recently put it, experts are exempt from the prohibition on opinion (versus fact) “only when the trier of fact is unable to form a correct judgment on a matter without the help of an expert”: R. v. P.J.C., 2025 ONCA 196, para. 31.
[18] As I noted in my ruling on admissibility, the jury will be given clear instructions on the permissible use of the rap lyrics (circumstantial evidence of association, motive/animus, and identity) and the impermissible use (the prohibition on general propensity reasoning, including reasoning that by virtue of the rap the accused are violent individuals and therefore more likely to kill). There is no dispute that the jury should also be given information about the history and context of drill rap in order to help them understand and assess the rap. The issue of necessity boils down to whether this information can come in the form of a jury instruction, or whether it must come from Dr. Evans.
[19] Defence counsel forcefully argue that the required history and context must come in the form of evidence from Dr. Evans. Defence counsel acknowledge that the expert evidence in this case is similar to that in R. v. Hoggard, 2024 ONCA 613, in so far as it seeks to educate the jury so as to prevent them from relying on impermissible stereotypes. However, defence counsel distinguish Hoggard on the basis that the expert evidence in that case related to assessing credibility, and was the subject of well-established jury instructions. Here, however, the expert evidence seeks to give the jury information it needs to properly assess the rap, and this is not the subject of well-established jury instructions.
[20] These distinctions do not satisfy me that the legitimate purpose of Dr. Evans’ evidence cannot be accomplished through a jury instruction.
[21] The subject matter of Dr. Evans’ evidence is not complex. He cautions that drill rap is a form of artistic expression which involves first-person bragging about prowess in committing violent acts, making money, and sexual skill. It is not necessarily true. Indeed, according to its very conventions, drill rap includes fictitious brags, or “capping” (lying/exaggerating/self-aggrandizing) to gain “clout” (“clout chasing” or seeking influence).
[22] The fact that rap lyrics may not be true, even when they are sung or rapped in the first person, is not a difficult concept that jurors will be unfamiliar with or have difficulty understanding. To the contrary, it falls squarely within the realm of common sense and experience. As a result, it is highly amenable to a jury instruction. Indeed, it is much more simple, and more common, than many of the phenomena involved in identification evidence (such as difficulties perceiving and recalling brief stressful events, change blindness, and unconscious transference), which the Court of Appeal has repeatedly held should be addressed through jury instructions, rather than expert evidence: R. v. McIntosh, para. 22; reiterated in R. v. Frimpong, 2013 ONCA 243.
[23] Defence counsel assert that I would be venturing into uncharted waters in providing jury instructions about the history and context of rap. I disagree. There is a robust body of law from the Ontario Court of Appeal (much of which I discussed during my admissibility ruling) about the dangers of rap lyrics, how their admissibility should be assessed, and what a trier should be cautious about. It is not a wide stretch to draw on this body of law to craft a caution for this jury. This was always my intention. These authorities, plus R. v. Terry, [1996] 2 SCR 207, paras. 29-30 (discussing a poem admitted at trial), provide explicit guidance about the kind of instructions that a jury should be given: R. v. McCullough, 2021 ONCA 71, paras. 73-74, leave refused [2023] SCCA 195 (see also trial decision R. v. McCullough, 2016 ONSC 1014, paras. 33-44); R. v. Mills, 2019 ONCA 940, paras. 128-131, 157-159; and R. v. Skeete, 2017 ONCA 926, paras. 192-193.
[24] These authorities make it clear that, in addition to cautions about general propensity reasoning and bad character, a jury should also be told that rap is a form of artistic expression and may or may not be true. I will add that it may or may not reflect a genuinely held belief. I will also add that Peppered is drill rap, which often includes first person bragging about violent acts towards opponents, which may or may not be true.
[25] Dr. Evans’ evidence does not run afoul of an exclusionary rule (beyond the general prohibition on expert opinion evidence).
[26] The Crown does not accept that Dr. Evans is properly qualified to give expert evidence about drill rap in Toronto. However, I think defence counsel has effectively short-circuited the Crown’s concerns by limiting the proposed scope of Dr. Evans’ evidence to the general history and context of drill rap.
[27] The Crown is also concerned about Dr. Evans’ partiality, but I do not understand this to rise to the level where he should not be qualified. Rather, the concern affects the weight his evidence can safely be given, and the extent it will give rise to reasoning prejudice.
[28] In sum, in relation to the threshold criteria, I do not believe Dr. Evans’ evidence is necessary. It follows that his evidence is not admissible.
[29] In the event I am wrong, however, I also believe his evidence should be excluded at the second gatekeeping stage of the analysis because the prejudicial effect of his evidence substantially outweighs its probative value.
The Cost-Benefit Analysis
[30] Dr. Evans’ evidence will bring substantial prejudice to this trial, in terms of additional time, reasoning prejudice, and exacerbating the potential for improper propensity reasoning arising from Peppered.
[31] Beginning with reasoning prejudice, Dr. Evans’ report and viva voce evidence is confusing and inconsistent. As I noted, during the admissibility voir dire defence counsel narrowed the scope of Dr. Evans’ evidence to a general lesson about the history and context of drill rap, explaining that the essence of his evidence was that the very nature of drill rap is making exaggerated claims of violence, sexual prowess, and money making, to gain respect, and that only the author knows what if any truth there is to any particular rap. The difficulty is that Dr. Evans’ report is inconsistent and contradictory about this very topic. At some points he appears to assert this position, for example (I have added my emphasis in italics):
- Hip-hop, like film or literature, is a narrative art form that blends reality with fiction. (p.3)
- In the sections that follow, I will further explain that [Peppered] doesn’t have a definitive interpretation but rather leverages unique communication, persona, vernacular, and creative practices that are in line with Drill Rap as a commercial artform and must be contextualized as such. (p.12)
- [I]t would not be hard to find multiple interpretations of [Peppered] and/or perceive them to be autobiographical in nature. (p.13)
- This possible misalignment between law enforcement’s interpretations of these lyrics and my own underscores the complexities of using lyrics as evidence in court. Without confirmation from the artist, their true intent cannot be known, and any assumptions risk conflating creative expression with literal action. (p.14)
- The line between performance and reality is often blurred. For instance, the use of provocative language in song lyrics could be interpreted in multiple ways. (p.14)
- These lyrics show a complex interplay between clout-chasing behaviors and genuine relationships with individuals in his neighborhood. (p.15)
- In today’s era of clout chasing and social media, the interpretation of Drillers’ controversial content as literal truth must be approached with caution. This blurring of reality and fiction is a common tactic in the world of Drill music, where the lines between real-life events and artistic creation are intentionally obscured. (p.15)
[32] However, at other points, Dr. Evans appears to be more definitive, suggesting that rap lyrics should never be considered for their truth, for example (again, I have added my emphasis in italics):
- While taunts to enemies, violent imagery and aggressive tones may dominate the lyrical content, these elements should not be interpreted as direct autobiographical admissions. Instead, they represent artistic strategies, combining first-hand observations, creative storytelling, and spectacle to portray tough personas. Drillers frequently employ these conventions to gain clout, visibility, and career momentum in a hypercompetitive industry. (p.8)
- The artistic narratives and hip-hop personas [in Peppered] reflect genre conventions rather than unique hyperlocal experiences. (p.13)
- [I] think the aggressive tone and violent imagery often found in content presented to me should be understood as reflections of systemic conditions rather than admissions of guilt. (p.13)
- In “Peppered,” the phrase “your block is getting Peppered” should not be reduced to evidence of specific criminal intent. (p.13)
- [I]n the chorus of “Peppered,” the artist says, “your block is getting peppered.” One could assume this phrase specifically refers to a neighborhood being targeted by shootings. I, however, interpret it differently. Rather than describing a literal act of violence, I believe the artist is constructing a broader tough persona—a persona deeply rooted in the traditions of rap music. (p.14)
- [I]t would be inappropriate, in my view, for courts to regard rap lyrics as literal rather than a form of artistic expression (which may be entirely fictional). (pp.15-16)
[33] While I expect Dr. Evans’ evidence to be more focused before the jury, I am unclear what his report is saying. I also struggled to understand his testimony on the voir dire. His answers were long and not always responsive to the questions being asked. I am concerned that the jury will have considerable work to do just to understand his evidence.
[34] Further, notwithstanding Dr. Evans’ affidavit acknowledging his duty to provide “fair, objective and non-partisan” evidence to the court, his evidence gives rise to a concern about partiality. While defence counsel properly narrowed the scope of evidence they sought to lead from him, the fact remains that he was asked what inferences could reliably be drawn from Peppered about real world events, and he offers an opinion about this issue in his report.
[35] Cross-examination revealed that, despite defence counsel sending him Det. Dhoum’s lengthy and detailed synopsis, and DC Sarjoo’s gang report, Dr. Evans knew little if anything about the case. When the Crown asked him an open-ended question about what he knew about the case, he replied that he was asked to review songs found on a phone and opine about how they might be interpreted as incriminating or autobiographical. He has never spoken to Mr. Anderson or Mr. Harvey, does not know anything about them, or their social media presence or posts, or whether they were attached to a gang or even what neighbourhood they lived in. It appears from his report that he did not even know the most basic details about the shooting. For example, he suggests the lyric “your block is getting peppered” should not be considered as evidence of repeated attacks on an area. But no one is suggesting this; the allegations in this case involve a single shooting during which at least 59 rounds were fired. In short, I find it problematic that he is willing to provide an opinion about the meaning of the lyrics in Peppered without knowing anything about the accused or the evidence in the case.
[36] To be clear, I agree with the defence that the fact that Dr. Evans has a personal and professional interest in combatting racism and negative stereotyping of Black youth does not mean he is biased. It is well-established that a personal and professional agenda or interest does not per se disqualify an expert: R. v. Shafia, 2012 ONSC 1538, para. 8, upheld at 2016 ONCA 812, leave to appeal dismissed; and R. v. MacMillan, 2019 ONSC 5769, paras. 48-51, upheld at 2024 ONCA 115. The difficulty in this case is that Dr. Evans’ agenda appears to be imbedded in his opinion. This is another issue that the jury would have to sort out before deciding what if any weight they could safely place on Dr. Evans’ evidence.
[37] In sum, I am concerned that Dr. Evans’ evidence will result in considerable reasoning prejudice. Before even getting to the substance of Dr. Evans’ evidence, the jury will have to figure out what he is saying. They will also have to separate his agenda from his evidence and decide whether his evidence is sufficiently reliable that they can place weight on it. This will impose a significant burden on the jury, over and above the heavy burden they already bear in finding the facts and rendering a verdict.
[38] In addition, I believe there is a real risk that Dr. Evans’ evidence could exacerbate the risk of improper general propensity reasoning associated with Peppered. While the Crown takes the position that portions of Peppered are truthful reflections of the shooting in this case, they do not seek to rely on Peppered as a confession, but rather as a piece of circumstantial evidence showing association between the accused, animus/motive, and identity (depending on the findings the jury makes about the lyrics, such as whether they include reference to JM and RD, and whether these initials refer to nicknames for Mr. Angus-Campbell and Mr. Harvey). However, the need to respond to Dr. Evans’ evidence (the totality of which is unknown) may increase the role Peppered plays in this trial. For example, it is highly likely that in the course of cross-examination, the Crown will put to Dr. Evans that sometimes rap lyrics are true. I believe this will exacerbate the risk of improper general propensity reasoning associated with Peppered.
[39] Without Dr. Evans’ evidence, Peppered is simply a piece of circumstantial evidence to be considered together with all the other evidence (along with a proper caution about the conventions of drill rap and the prohibition on general propensity evidence). During the voir dire, defence counsel indicated they were only providing a flavour of what Dr. Evans’ evidence would be. His precise evidence is unknown to me (and the Crown). I am concerned that his evidence would increase the role of Peppered in the trial, and exacerbate the risk of improper propensity reasoning.
[40] In conclusion, I do not believe Dr. Evans’ evidence is necessary for the jury to assess the rap lyrics. I believe the jury can be properly equipped to assess Peppered through a jury instruction. There is case law that can provide guidance in this respect, as I noted above. I can also draw on the evidence I heard during the voir dire. Dr. Evans’ evidence fails the initial threshold stage of the admissibility analysis.
[41] If I am wrong about my threshold assessment, I would still exclude Dr. Evans’ evidence at the second “gatekeeper” phase of the admissibility inquiry. Even the pared down version of Dr. Evans’ evidence will bring substantial prejudice: it will consume considerable time; it is confusing and contradictory and will bring substantial reasoning prejudice; it will exacerbate the risk of improper general propensity reasoning. The prejudicial effect of his evidence substantially outweighs its probative value.
[42] Dr. Evans’ evidence is not admissible.
G. Roberts
Released: April 28, 2025