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David M Tanovich, 2016 CanLIIDocs 4601

In the US, rap is frequently on trial, even in death penalty cases. It also appears to be a growing trend in England. And so, I began to study the issue in Canada. I was able to document thirty-six cases of attempts by the Canadian criminal justice system to put rap on trial in a recently published article “R v. Campbell: Rethinking the Admissibility of Rap Lyrics in Criminal Cases” (available on SSRN at http://ssrn.com/abstract=2730123). This Walrus piece provides a summary of some of the Canadian cases and explores how our criminal justice system should respond.

Racial profiling remains a serious and systemic problem in Canada. In 2004, I wrote this article addressing the naysayers - those who denied the systemic existence of the problem - as well as to identify a number of policy and law reform recommendations for addressing the problem. Even though the article is well over a decade old, the recommendations remain relevant today. They include mandatory data collection and anti-racial profiling legislation. I also set out a number of law reform recommendations including:

In R v Borde (2003), 8 Criminal Reports (6th) 203 (Ont CA), the Ontario Court of Appeal recognized that anti-Black racism could be taken into account in sentencing in applying section 718.2(e) of the Criminal Code, otherwise known as the Gladue provision for sentencing Aboriginal offenders.In R v Hamilton (2004) 22 Criminal Reports (6th) 1 (Ont CA), the same court restricted Borde to cases where there is evidence of a casual link between racism and the commission of the offence.This comment is critical of the decision and its failure to recognize the relevance of anti-Black racism in the "war on drugs" and the relevance of race and general deterrence in thinking about sentencing. These are arguments that are relevant today and could be used to distinguish Hamilton if an appropriate case ever got to the Supreme Court of Canada. In this case, the trial judge raised the issue of gender and racial bias and gave the parties an opportunity to address their relevance to the sentencing of the two Black female accused. The Court of Appeal was critical of the trial judge's intervention. This too was unfortunate given the general reluctance of lawyers to raise these issues.

It is not uncommon in drug importation trials or other cases involving financial gain for the Crown to introduce evidence of the accused's general financial circumstances and then ask the jury to engage in inductive reasoning - to use their common sense to draw the inference that the accused had a motive to commit the offence because he or she was poor. This is what occurred in R v Mensah (2003) 9 Criminal Reports (6th) 339.This case comment explores the dangers of using common sense and experience to guide relevance assessments and why social context evidence is necessary in order to increase the likelihood that informed and reasonable inferences will be drawn from the evidence.

Recently in Canada, there have been a number of high profile wrongful convictions involving individuals who plead guilty. These cases raise the thorny issue of the ethics of pleading guilty a client who maintains their innocence. There is very little guidance from the case law or rules of professional conduct.This is an issue that needs attention. In 2004, the Supreme Court of Canada released a decision (R v Taillefer) regarding an accused's common law right to disclosure and setting out the essential elements of a valid guilty plea. Although not directly raised, the case was also about a co-accused who pleaded guilty despite maintaining his innocence to his lawyer. This short case comment identifies some of the relevant Canadian sources on this ethical issue which all seem to suggest that it is, in fact, unethical to plead guilty a client in these circumstances.

In R v Mann 2004 SCC 52, the Supreme Court of Canada set out an approach to investigative detentions under sections 8 and 9 of the Charter. The Court held that the police can conduct an investigative detention where they have reasonable suspicion to connect the individual to a recent or ongoing crime. The Court also held that the police can conduct a pat-down where they have reasonable grounds to believe that the person is armed. The Court's attempt to regulate these low-visibility encounters was important. However, it missed a critical piece of the story. Like so many of those subjected to investigative detentions in Canada, Mann was Aboriginal. The case provided the Court with an opportunity to explore the relationship between race and race-based suspect descriptions and race and detention under the Charter. This piece attempts to fill in for what is missing from the Supreme Court's analysis and also highlights why it is essential for race and systemic racism to be factored in when thinking about the reasonable suspicion threshold that justifies investigative detentions.

Despite a very sophisticated and rich jurisprudence on racial profiling, there are very few criminal cases in Canada where the issue has been litigated. This is as true today in 2016 as it was in 2006 when I wrote this article examining cases from 2003-2006. This piece from 2006 explores why there is such litigation silence. It also develops arguments about how race and systemic racism are relevant in thinking about the meaning of detention under section 9 of the Charter and in the interpretation of behaviour that the police often believe gives rise to the necessary reasonable suspicion to conduct an investigative detention. Finally, the piece identifies the relevance of the failure of the police to collect race data on street interactions in thinking about admissibility under section 24(2) of the Charter.

The issue of police carding has received very little judicial attention in Canadian cases. In this case, the trial judge found that the carding of the accused was unconstitutional and constituted racial profiling. The trial judge also found that the police officer's testimony involved "several fabrications ... fed to the court..." It is yet another recent judicial finding of police perjury involving the Toronto Police Service.

R v J(TR) once again raises the question of whether any inferences can be drawn from how a witness satisfies the moral competency requirement to testify and whether it is time to remove religion from the oath. This short comment critically assesses the cases where negative inferences have been drawn and recommends that the religious oath should be abolished.

The Supreme Court of Canada decision in R v Brown is an important precedent on the issue of privacy, dog sniffers and the role of the courts in creating new police powers. This comment explores the Court's scrutiny of using drug courier profiles to screen individuals in the "war on drugs." This is significant part of the judgment because of the historical lack of judicial scrutiny of criminal profiling evidence with a few notable exceptions, its widespread use across Canada, its unreliability and the disproportionate impact of the drug courier profile on racialized communities in Canada.

R v Campbell is one of the few cases in North America to exclude rap lyrics as evidence of guilt in criminal cases. Unlike in Canada, the issue of criminalizing rap has received considerable attention in the United States. This article begins by documenting the Canadian experience. It is a response to the call for research by two leading American scholars on the phenomenon of putting rap on trial, Professors Charis Kubrin and Erik Nielson. After documenting and discussing 36 Canadian cases, the article examines the Supreme Court of Canada decision in R v Simard and the two leading trial decisions R v Campbell and R v Williams. Generally speaking, the Canadian cases have failed to apply a culturally competent lens when assessing probative value and, to address the relevance of race and bias, when assessing prejudicial effect. The article urges our courts to put the rap back in rap by taking a culturally competent and critical race approach to admissibility.

Despite the growing reliance on the internet, electronic communications and social media evidence in adjudicative proceedings, there have been very few cases in Canada that have addressed a fundamental aspect of admissibility - authentication. This article explores the issue in the context of a case involving a photograph showing the offence and anonymously uploaded to the internet.

Until the Supreme Court of Canada decision in R v. Hart 2014 SCC 52, there was very little, if any, judicial regulation of the Mr. Big undercover investigative strategy. The Supreme Court approached the issue of admissibility using first principles to create a new exclusionary rule. By giving prominence to reliability as part of the probative value/prejudical effect analysis, the Court opened the door for assessing afresh the admissibility of other putatively unreliable evidence such as identification evidence.

Until recently, the issue of police deception in testifying has received very little attention in Canada. The issue has received significantly more attention over the last few years in light of a number of cases, almost all involving Black or racialized accused, where judges have concluded that the evidence of the police was either an outright lie, deliberately misleading or was tailored. This article chronicles the cases from 2011-2013 and offers a number of suggestions for greater judicial and prosecutorial regulation.