Canada Law Book Inc.
The use of accused-authored rap lyric evidence is no longer rare in Canadian criminal proceedings. Adduced by Crown prosecutors, rap lyrics written or co-written by an accused are increasingly used in criminal trials as evidence of the accused’s intent, knowledge, motive, identity, or confession to the commission of the specific offence charged. The practice is not without controversy.1 The introduction of an accused’s artistic work in the form of rap lyrics at trial engages trial fairness concerns. Without a keen awareness of the social and cultural context that produces rap music, trial actors risk inflating their probative value and underestimating their prejudicial effect. The 2015 Ontario Superior Court of Justice decision in Campbell2 attempted to redress this problem by proposing a specific rule governing the admissibility of rap lyric evidence. Under this rule, rap lyrics would have to have a concrete nexus to the offence charged before those lyrics could be admissible at trial. This rule was not adopted by the Ontario Court of Appeal. In its 2017 Skeete3 decision, the Court instead held that rap lyric evidence is admissible where relevant, material, and not excluded by a specific rule of evidence.4 On this basis, the Court found that an accused-authored rap lyric was admissible and properly before the jury at trial.5 By failing to adopt a rap specific approach to the admissibility of rap lyric evidence, the decision represents a troubling paradigm for the reception of accused-authored rap lyric evidence.
This article analyses the current evidentiary threshold for the reception of accused-authored rap lyric evidence.6 It argues that the current threshold jeopardizes trial fairness by allowing the Crown to adduce highly prejudicial rap lyric evidence at trial. It proceeds in three parts: Part I provides a contextualization of the issues. Part II examines the Campbell decision. Part III evaluates how the Skeete decision differs from Campbell, and provides a relatively low admissibility threshold for accused-authored rap lyric evidence. This article concludes by advocating for the adoption of the Campbell approach with modifications.
A ‘Bad Rap’: R. v. Skeete and the Admissibility of Rap Lyric Evidence
Criminal Law Quarterly
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3140