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Rap lyrics are increasingly coming to play at criminal trials. Are they getting a bad rap?

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When I was just a baby

My mama told me, “Son

Jermaine Dunkley had 10 of his rap videos excluded from evidence in a trial that found him guilty of first-degree murder.
Jermaine Dunkley had 10 of his rap videos excluded from evidence in a trial that found him guilty of first-degree murder.  (YouTube/MSWIncVideos)

Always be a good boy

Don’t ever play with guns,”

But I shot a man in Reno

Just to watch him die

Johnny Cash wrote that in his classic country hit, “Folsom Prison Blues,” recorded in 1955. The man in black. Self-styled outlaw. Sex symbol. Shot a man just to watch him die. The line made him famous and anchored a storied career.

When N.W.A. released “F– tha Police” in 1989, the gangsta rap protest song brought fame as well, but also bans from airwaves and a letter from the Federal Bureau of Investigation.

The difference underscores the scrutiny rap lyrics and hip hop in general continue to endure, compared to other genres where artistic expression is rarely interpreted as actual criminal intent and deeds — past, present and future.

Add to this today’s vast and easily accessible social media ocean for aspiring rap artists to post their work and express hip hop culture, and everything is a click or swipe away. And it is presenting a challenge in courtrooms in the United States and Canada, where a growing area of study examines the complex and controversial intersection of crime, rap lyrics as evidence, expert witnesses and the courts.

Google “rap on trial” and plenty pops up. Rap lyrics are being used in court cases as proof of intent, confessions and threats, and as character evidence, at times without the benefit of experts who can provide judges and juries with context and history. In other words, taking them to the school of rap.

“There is this tendency for outsiders in the justice system and police to view the word and the lyrics and stories that are coming out of the mouths of rappers, especially Black rappers, as if they are autobiographical portraits of their lives,” says Jooyoung Lee, associate professor of sociology at the University of Toronto.

“But that’s been roundly disproved and there’s quite a bit of stuff, both in academia and also just popular writing and documentaries, that really poke holes in this presumption that the kinds of identities and lyrics that people present in their music are actually authentic representations of who they are,” says Lee, who teaches a course on hip hop, which examines its beginnings and history and includes comparisons like Cash vs. N.W.A.

He has also testified as an expert witness in court, called upon to provide background context into why aspiring rap artists might talk or boast about involvement in street violence, “whether that be in the form of gangs or in shootings or robberies and other kinds of activities that often come up in certain genres of hip hop.”

The challenge for courts, says Lee, is differentiating between “artists who are really trying to make it and this is a way out of the gang life, the street life” and an emerging practice of young people “immersed or involved in gangs or street crews where they’re increasingly turning to social media as a way to provoke, disrespect, communicate.

“I think that’s where you really do need the expertise of somebody coming in,” says Lee, who grew up in California in the ’90s, fell in love with hip hop culture and studied and hung out with aspiring hip hop artists in South Central Los Angeles. He wrote a book about the latter, called Blowin’ Up.

University of Windsor law professor David Tanovich examined North American criminal cases where rap lyrics came into play — including ones in Canada, and one in which Lee testified — and found few excluded rap lyrics as evidence of guilt.

However, unlike Canada, the “issue of criminalizing rap has received considerable attention in the United States” judging by recent newspaper articles and opinion pieces, Tanovich wrote in a 2016 academic paper entitled “Rethinking the Admissibility of Rap Lyrics in Criminal Cases.”

Using media reports, Tanovich identified 36 cases in Canadian courts from the past decade where rap lyrics came into play, and found only one that involved lyrics from another genre. In that case, involving a murder, the Newfoundland Court of Appeal excluded the lyrics to a “metal/punk” song entitled “Kill Kill Kill.”

Of the 36 rap cases, 16 involved the Crown using lyrics as evidence of guilt. It was used as defence evidence in five cases. In four, rap lyrics were excluded. The remaining cases involved sentencing and charter applications.

“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,” Tanovich wrote.

Tanovich has said to include lyrics there must be probative value, and rap lyrics should only be entered into evidence in “exceptional cases” because systemic racism is a problem in the justice system.

In a 2018 Toronto murder case, 10 rap videos were excluded from evidence in the trial of Jermaine Dunkley, an admitted criminal gang leader and rapper. Lee was called as an expert witness in that case by the defence, while a Toronto police officer was called as an expert for the Crown. Ontario Superior Court Justice Michael Code ruled that the videos would have a “powerful prejudicial effect” and “very few” parts of the videos were relevant to the trial at hand.

Jooyoung Lee, associate professor of sociology at U of T, teaches a course on hip hop and has testified in court as a rap lyric expert.
Jooyoung Lee, associate professor of sociology at U of T, teaches a course on hip hop and has testified in court as a rap lyric expert.  (Jim Rankin)

Nonetheless, a jury found Dunkley guilty of first-degree murder in November in what the Crown portrayed as a revenge killing. Dunkley is to face another trial for another murder in Hamilton.

Lee and other American experts on rap and the courts say courts generally fail to regard it as an art form.

That, notably, was not the case in another Toronto murder case in which Lee testified. “As with lyrics generally, but especially when it comes to rap, it is risky to take any word literally,” then-Superior Court Justice Ian Nordheimer wrote in a 2015 decision excluding lyrics written by Orville Campbell.

“Rap, particularly gangster rap, often deals with the subject matter of drugs, guns, shootings, violence and the like,” wrote Nordheimer, now sitting on Ontario’s Court of Appeal. “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.”

There is a long history of artists writing lyrics as if they had personal involvement in events, but in fact had “no involvement with them at all,” wrote Nordheimer.

The Crown had sought to include a rap video by Campbell that included this, among other, lines: “One shot, leave your brains on your Nikes.” The victim in the murder for which Campbell was eventually convicted was wearing Nikes at the time of his death. The judge noted that “fact, of course, only makes the deceased one among literally thousands of young men” in Toronto who, on any given day, would be wearing Nikes. (Campbell is appealing his conviction.)

In a landmark U.S. court ruling on rap lyrics, the Supreme Court of New Jersey affirmed a lower appeal court’s decision to exclude 13 pages of violent rap lyrics in an attempted murder case, overturning a conviction.

“The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavours 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,” the New Jersey court noted in its decision. “One would not presume that Bob Marley, who wrote the well-known song ‘I Shot the Sheriff,’ actually shot a sheriff, or that Edgar Allan Poe buried a man beneath the floorboards, as depicted in his short story ‘The Tell-Tale Heart,’ simply because of their respective artistic endeavours on those subjects.”

Rap is “like poetry, or any kind of literary tradition that requires a person who is going to be well versed in that area,” says Lee, who hopes the Canadian justice system “gets to that point where people realize that, at the very least, you can’t proceed in these cases if you don’t have experts who have studied and who have an understanding of the culture present to weigh in on what they see and interpret from the evidence and data that they’re given.

“But there’s this other side of me that also, from a long view, sees the persistence of different institutional levers in place that disadvantage people of colour,” says Lee, “and that end up disproportionately impacting their chances as they go through the justice system.”

Jim Rankin is a reporter based in Toronto. Follow him on Twitter: @Jleerankin

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Anglais

‘Business as usual’ for Dorel Industries after terminating go-private deal

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MONTREAL — Dorel Industries Inc. says it will continue to pursue its business strategy going forward after terminating an agreement to go private after discussions with shareholders.

« Moving ahead. Business as usual, » a spokesman for the company said in an email on Monday.

A group led by Cerberus Capital Management had previously agreed to buy outstanding shares of Dorel for $16 apiece, except for shares owned by the family that controls the company’s multiple-voting shares.

But Dorel chief executive Martin Schwartz said the Montreal-based maker of car seats, strollers, bicycles and home furniture pulled the plug on a deal on the eve of Tuesday’s special meeting after reviewing votes from shareholders.

“Independent shareholders have clearly expressed their confidence in Dorel’s future and the greater potential for Dorel as a public entity, » he said in a news release.

Dorel’s board of directors, with Martin Schwartz, Alan Schwartz, Jeffrey Schwartz and Jeff Segel recused, unanimously approved the deal’s termination upon the recommendation of a special committee.

The transaction required approval by two-thirds of the votes cast, and more than 50 per cent of the votes cast by non-family shareholders.

Schwartz said enhancing shareholder value remains a top priority while it stays focused on growing its brands, which include Schwinn and Mongoose bikes, Safety 1st-brand car seats and DHP Furniture.

Dorel said the move to end the go-private deal was mutual, despite the funds’ increased purchase price offer earlier this year.

It said there is no break fee applicable in this case.

Montreal-based investment firm Letko, Brosseau & Associates Inc. and San Diego’s Brandes Investment Partners LP, which together control more than 19 per cent of Dorel’s outstanding class B subordinate shares voiced their opposition to the amended offer, which was increased from the initial Nov. 2 offer of $14.50 per share.

« We believe that several minority shareholders shared our opinion, » said Letko vice-president Stephane Lebrun, during a phone interview.

« We are confident of the long-term potential of the company and we have confidence in the managers in place.”

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Anglais

Pandemic funds helping Montreal businesses build for a better tomorrow

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Many entrepreneurs have had to tap into government loans during the pandemic, at first just to survive, but now some are using the money to better prepare their businesses for the post-COVID future.

One of those businesses is Del Friscos, a popular family restaurant in Dollard-des-Ormeaux that, like many Montreal-area restaurants, has had to adapt from a sit-down establishment to one that takes orders online for takeout or delivery.

“It was hard going from totally in-house seating,” said Del Friscos co-owner Terry Konstas. “We didn’t have an in-house delivery system, which we quickly added. There were so many of our employees that were laid off that wanted to work so we adapted to a delivery system and added platforms like Uber and DoorDash.”

Helping them through the transition were emergency grants and low-interest loans from the federal and provincial governments, some of which are directly administered by PME MTL, a non-profit business-development organization established to assist the island’s small and medium-sized businesses.

Konstas said he had never even heard of PME MTL until a customer told him about them and when he got in touch, he discovered there were many government programs available to help his business get through the downturn and build for the future. “They’ve been very helpful right from day one,” said Konstas.

“We used some of the funds to catch up on our suppliers and our rents, the part that wasn’t covered from the federal side, and we used some of it for our new virtual concepts,” he said, referring to a virtual kitchen model which the restaurant has since adopted.

The virtual kitchen lets them create completely different menu items from the casual American Italian dishes that Del Friscos is known for and market them under different restaurant brand names. Under the Prasinó Soup & Salad banner, they sell healthy Greek options and their Stallone’s Sub Shop brand offers hearty sandwiches, yet the food from both is created in the same Del Friscos kitchen.

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Anglais

Downtown Montreal office, retail vacancies continue to rise

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Some of downtown Montreal’s key economic indicators are heading in the wrong direction.

Office and retail vacancies in the city’s central core continued to climb in the fourth quarter of 2020, according to a quarterly report released Thursday by the Urban Development Institute of Quebec and the Montréal Centre-Ville merchants association. The report, whose first edition was published in October, aims to paint a socio-economic picture of the downtown area.

The survey also found office space available for sublet had increased during the fourth quarter, which may foreshadow even more vacancies when leases expire. On the residential front, condo sales fell as new listings soared — a sign that the downtown area may be losing some of its appeal to homeowners.

“It’s impossible not to be preoccupied by the rapid increase in office vacancies,” Jean-Marc Fournier, the former Quebec politician who now heads the UDI, said Thursday in an interview.

Still, with COVID-19 vaccinations set to accelerate in the coming months, “the economic picture is bound to improve,” he said. “People will start returning downtown. It’s much too early to say the office market is going to disappear.”

Public health measures implemented since the start of the pandemic almost a year ago — such as caps on office capacity — have deprived downtown Montreal of more than 500,000 workers and students. A mere 4,163 university and CEGEP students attended in-person classes in the second quarter, the most recent period for which figures are available. Border closures and travel restrictions have also brought tourism to a standstill, hurting hotels and thousands of local businesses.

Seventy per cent of downtown workers carried out their professional activities at home more than three days a week during the fourth quarter, the report said, citing an online survey of 1,000 Montreal-area residents conducted last month.

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