ÎÚÑ»´«Ã½ rapper Hassan Ali’s gritty lyrics and blustering social media presence portrayed him as a violent gang leader who, in the words of a judge, “revels in the senseless killing of others.â€
The questions were: how much of what Ali, aka Top 5, said and did online was authentic, how much was artistic expression — and could a jury distinguish fact from fiction?
Prosecutors argued Ali’s songs, music videos, provocative social media posts and a lengthy interview should be admissible in his trial.
Superior Court Justice Andras Schreck decided otherwise.
“The risk that a jury will misuse this evidence and convict Mr. Ali because of his disposition is significant,†Schreck wrote, rejecting the Crown’s request to use this body of evidence to help prove Ali was behind the alleged gang-related killing of Hashim Hashi, a 20-year-old accounting student shot to death Jan. 31, 2021.
³§³¦³ó°ù±ð³¦°ì’s and the resulting collapse of the murder case earlier this week have now rekindled debate over whether rap music and related social media content belong in a courtroom.
Ali is not the first rapper to boast about violent exploits, only to later be charged with a real-life crime — and Ontario, like other Canadian jurisdictions, “has struggled to balance how to use rap lyrics and other cultural expression as evidence,†defence lawyer Scott Hutchison told the Star in an email.
It involves balancing the value of the evidence against the risk that the language of underground rap music “will distract the jury from the actual issues,†said Hutchison, who wasn’t involved in Ali’s case but served as counsel in , one of two Ontario Court of Appeal cases that established the current framework for the admissibility of rap lyrics.
One key challenge is that most judges — due to their age, race and social status — are “highly unlikely to have any real connections to the cultural expression they are judging,†he wrote. That’s why judges need to rely on experts who understand how hip-hop artists express themselves.
If the judge thinks rap lyrics or videos have some “real logical value in deciding the issues, they will then look at the risk that the content will distract the jury by reinforcing racial or other stereotypes,†Hutchison explained.
“The balancing yields the result.â€
The Crown’s decision to stay Ali’s case allows them to restart the prosecution within a year — if new evidence comes to light.Ìý
The failed case against Hassan Ali
Prosecutors had argued Ali’s lyrics and posts supported the theory he was a member of a street gang called GGG that had an ongoing rivalry with another gang from the area where the murder took place. of an attack on whoever happened to be in the rival’s territory that night, the Crown alleged — he was shot as he sat in his car outside the entrance of the parking garage in the building where he lived on Falstaff Avenue in ÎÚÑ»´«Ã½.
The man who shot Hashi came from a car that had been driving around the area; Ali was alleged to be in the back seat, directing the gunman, who has never been found, to pull the trigger. The evidence putting him in the car was tenuous — which was why the Crown wanted to rely on the social media evidence of Ali’s ill-will toward Falstaff. (Schreck heard Ali’s resentment wasn’t just against Falstaff, and that he directed venom toward other ÎÚÑ»´«Ã½ neighbourhoods as well.)
ÎÚÑ»´«Ã½ rapper Hassan Ali, who performs as Top 5, left, had been facing a first-degree murder charge in the killing of Hashim Hashi, a 20-year-old accounting student.Ìý
Spotify; GoFundMeAfter Crown attorney Sue Adams announced she was staying the charge last Monday, Ali left the prisoner’s box and jumped right back into the social media universe he relishes, posting a photo with his lawyer on his Instagram account. (Ali had about 135,000 followers on Instagram shortly after his arrest; as of this week, that number has doubled.)Ìý
Ali was described in court during the pretrial phase as a “significant figure in the city’s rap scene,†whose rise from obscurity to viral fame was propelled by a social media endorsement by ÎÚÑ»´«Ã½ superstar Drake.
Asked outside the downtown ÎÚÑ»´«Ã½ courthouse on Monday if he belongs to a gang, Ali said no, calling himself a “businessman.â€
Lawyer and University of Windsor law professor David Tanovich, who has researched and written on the issue of rap lyrics in court, told the Star in an email that ³§³¦³ó°ù±ð³¦°ì’s ruling is an “unfortunately†rare case in which lyrics have been kept out of criminal court.
“All too often in Canada and the United States, this evidence is used with insufficient scrutiny at the admissibility stage,†Tanovich stated.
³§³¦³ó°ù±ð³¦°ì’s ruling showed sensitivity around the “prejudicial effect†of admitting lyrics as evidence of gang affiliation or motive. “Given the systemic nature of anti-Black racism, rap lyrics are likely to be overvalued by a jury and trigger or reinforce stereotypical assumptions about Black men,†he wrote.
“My hope is that the decision will begin the much-needed process of bringing an end to rap on trial.â€
There is a push in the United States to do just that. In 2022, an open letter entitled was signed by every major music label and dozens of artists, including Drake, urging prosecutors to voluntarily end the practice of presenting rap as fact. California has mandated that artistic expression should be admitted in court only in narrow specific instances and, when it is, should be explained and contextualized by experts in the applicable field. Other states are following suit.
But there’s no such legislation in Canada, although proponents of the status quo believe the courts generally strike the right balance.
A recently retired Crown attorney from the province’s guns and gangs unit believes prosecutors are well within their right to introduce rap or gang evidence — and police experts to place it in context — in criminal cases where gang activity is alleged. Such evidence can help a jury understand the reasons behind a shooting “in an area when the average person wouldn’t understand it.†(He spoke on the condition of anonymity because the Ali case could, theoretically, be revived.)
A key aspect of Ali’s case was to show “animus towards other members of a gang,†he said.
To prove that, the Crown sought to introduce evidence they said was relevant to determining motive.Ìý
One key social media post was of a video of a person stomping on a Shoppers Drug Mart bag, which was believed to be a display of disrespect towards Ali’s brother, who was shot dead outside a Shoppers in 2017.
According to the Crown’s theory, this video sparked the urge to retaliate by finding and killing someone in the territory of the rival Falstaff Marke Gang, where Hashi was shot.
The Crown also sought to introduce eight music videos — including songs played . In one video, controversially filmed in traffic on Highway 401, Ali representatively raps:
He had a gun, I had a bigger one
He had a car, I had a faster one
And when I get the drop, you know the job done
In his decision, Schreck acknowledged that Ali portrays himself as a gang member “with little regard for human life†but found there was too much risk the jury would misuse the evidence and convict him “because of his disposition.â€
Ali’s lawyer, courtroom veteran Gary Grill — described by a colleague as having “an incredible way of being diplomatic and strategic without any hostility†— called ³§³¦³ó°ù±ð³¦°ì’s decision “the best ever written†in Canada on the subject of gang evidence.
He commended it both for succinctly setting out the applicable law and, more importantly, for explaining what was “lacking†in this case. That, Grill said, was the Crown’s failure to establish a direct link between Ali and the evidence sought to be admitted.
There needs to be a clear nexus between the lyrics themselves and the allegations, otherwise, it’s all “bad character†evidence, which has “no business in a criminal trial,†he said.
If, for example, someone rapped about killing an innocent person on a certain street, and on that same day an innocent person was killed on that same street, “then you could see a real connection between the lyrics and the offence in question,†he said, adding “that is closer to a confession.â€
‘A lot of times, what people are saying on the internet is straight-up lying’
During pretrial hearings, Grill called as a witness Jabari Evans, an assistant professor of race and media at the University of South Carolina. His research has explored how impoverished Black youths have harnessed various social media platforms to promote themselves in drill rap, which originated in Chicago and is influential in ÎÚÑ»´«Ã½ and beyond for how it leans into “gangster rap†tropes that have been popular in hip-hop since the late 1980s.
Evans testified about the potential danger of jurors assuming that what Ali says as Top 5 is fact. After all, fans expect the genre’s stars to make provocative, violent-sounding references to a life of crime — and those have to at least sound real.
“Authenticity†is “the whole point of being a ‘driller,’ you want people to think that you’re the biggest and baddest,†Grill said in an interview. Performers are “24-7 in character, because if you’re not posting — on Instagram, and on other social media platforms — you’re not relevant.â€
ÎÚÑ»´«Ã½ is seeing many of same cycles of online mythmaking, provocation and violence that
Speaking by phone from South Carolina, Evans told the Star he hopes more judges follow ³§³¦³ó°ù±ð³¦°ì’s lead, “otherwise, the spectre of wrongful convictions will remain.â€
In court, he testified about the phenomenon of “clout chasing,†which sees drill rappers seeking attention and social status through provocative actions, often on social media and within song lyrics.
“It’s hard to explain to people that a lot of times, what people are saying on the internet is straight-up lying,†he said with a laugh.
In his ruling, Schreck cited outlandish claims Ali made in an online interview the Crown wanted to introduce, including that a female American rap superstar wants to have sex with him. (Prosecutors acknowledged this and other statements from the interview were lies).
But what if the persona is more real than fake, counter those who support the use of rap lyrics and social media posts in court in certain circumstances?
In the case of , the other leading rap lyric case in Ontario, a song about the undesirability of speaking to the police was admitted in a case where the accused was charged (and convicted) of murdering a man who testified against him.
In another, , a set of explicit lyrics were deemed relevant and admitted:
The b‑‑‑‑‑ started out all skin and bones,
Now the b‑‑‑‑‑ lay on some ashy stone,
Last time I saw her was outside the home
And if u go swimming u can find her phone
(The victim, Laura Babcock, had been cremated and her phone was missing.)
In their written submissions in the Top 5 case, prosecutors Sue Adams and Lindsay Kromm wrote that Ali’s defence was seeking to create a “black and white†world where social media posts or rap lyrics are “only art, or only gang-related — there is no room for both.â€
Once rap expression is deemed to be art, “it falls under a veil of protection precluding its use except in very rare circumstances. This is not the law, nor should it be,†they stated.
The extent to which Ali is “truthful in his social media and rap lyrics, and the extent to which he is purely engaged in artistic expression, is a matter for the jury to decide.â€
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