



WARNING

The President of the panel hearing
    this appeal directs that the following should be attached to the file:

An order restricting publication in
    this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or
    (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made under section
    486.4, on application of the prosecutor, a victim or a witness, a judge or
    justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is satisfied that the order is
    necessary for the proper administration of justice.

(2)     On application of a justice system
    participant who is involved in proceedings in respect of an offence referred to
    in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or
    justice may make an order directing that any information that could identify
    the justice system participant shall not be published in any document or
    broadcast or transmitted in any way if the judge or justice is satisfied that
    the order is necessary for the proper administration of justice.

(3)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding judge or
    justice or, if the judge or justice has not been determined, to a judge of a
    superior court of criminal jurisdiction in the judicial district where the
    proceedings will take place; and

(b) provide notice of the application to the
    prosecutor, the accused and any other person affected by the order that the
    judge or justice specifies.

(5)     An applicant for an order shall set out the
    grounds on which the applicant relies to establish that the order is necessary
    for the proper administration of justice.

(6)     The judge or justice may hold a hearing to
    determine whether an order should be made, and the hearing may be in private.

(7)     In determining whether to make an order, the
    judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk
    that the victim, witness or justice system participant would suffer significant
    harm if their identity were disclosed;

(c) whether the victim, witness or justice system
    participant needs the order for their security or to protect them from
    intimidation or retaliation;

(d) societys interest in encouraging the
    reporting of offences and the participation of victims, witnesses and justice
    system participants in the criminal justice process;

(e) whether effective alternatives are available
    to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the
    proposed order;

(g) the impact of the proposed order on the
    freedom of expression of those affected by it; and

(h) any other factor that the judge or justice
    considers relevant.

(8)     An order may be subject to any conditions
    that the judge or justice thinks fit.

(9)     Unless the judge or justice refuses to make
    an order, no person shall publish in any document or broadcast or transmit in
    any way

(a) the contents of an application;

(b) any evidence taken, information given or
    submissions made at a hearing under subsection (6); or

(c) any other information that could identify the
    person to whom the application relates as a victim, witness or justice system
    participant in the proceedings.  2005, c. 32, s. 15.

486.6 (1)  Every person who fails to comply with an
    order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken
    against any person who fails to comply with the order, the publication in any
    document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 205, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Abbey, 2017 ONCA 640

DATE: 20170804

DOCKET: C57750

Doherty, Laskin and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Warren Nigel Abbey

Appellant

David E. Harris and Ravin Pillay, for the appellant

Alexander Alvaro, for the respondent

Heard: February 15, 2017

On appeal from the conviction entered by Justice J. David
    McCombs of the Superior Court of Justice, sitting with a jury, on March 28,
    2011.

LASKIN J.A.:

A.

Introduction

[1]

Warren Abbey has been tried twice before a judge and jury for the first
    degree murder of a young man named Simeon Peter. At his first trial Abbey was
    acquitted. At the second trial  after the Crown successfully appealed his
    acquittal and obtained an order for a new trial  Abbey was convicted. He
    appeals his conviction.

[2]

The main issue at both trials was the identity of the murderer: who
    killed Peter? And the Crowns theory at both trials was identical: Abbey, who
    was an associate of a street gang, shot and killed Peter because he believed 
    though mistakenly  that Peter was a member of a rival street gang.

[3]

However, the Crowns evidence against Abbey at the two trials differed
    in one important way. At Abbeys first trial the trial judge ruled that the
    Crowns expert on gang culture, Mark Totten, could not give an opinion on the
    meaning of a teardrop tattoo, which Abbey had obtained under his right eye some
    four months after the murder. At Abbeys second trial  after this court
    overturned the trial judges ruling  Totten gave evidence about the meaning of
    a teardrop tattoo on the face of a young male gang member.

[4]

Totten testified that a teardrop tattoo meant one of three things: the
    wearer of the tattoo had lost a loved one or a fellow gang member; the wearer
    had spent hard time in prison; or the wearer had murdered a rival gang
    member. Then, Totten buttressed his opinion with a powerful set of statistics,
    which were drawn from six studies he authored between 1995 and 2005, and which the
    Crown relied on to argue Abbey had obtained a teardrop tattoo to signify he had
    killed a rival gang member.

[5]

On this appeal Abbey seeks to introduce fresh evidence to impeach the
    credibility and reliability of Tottens statistical evidence. The fresh
    evidence has three components: the evidence of Totten elicited by the Crown in
    an unrelated murder trial,
R. v. Gager
,
[1]
which took place after Abbeys second trial; eight research studies on street
    gangs conducted by Totten, of which six predated Abbeys two trials and formed
    the basis for Tottens statistical evidence on teardrop tattoos; and data from
    Statistics Canada on the number of homicides in Ontario.

[6]

Almost all of the information on which Totten was cross-examined in
Gager
,
including the six research studies he
    relied on for his opinion, were available to the defence before Abbeys two trials.
    Yet the defence chose not to adduce this evidence at either trial, and instead
    took a different approach to Tottens cross-examination. Thus, whether the
    fresh evidence is admissible turns on its cogency and on the effect of Abbeys
    failure to adduce it at trial.

[7]

Abbey submits that the fresh evidence shows Tottens trial evidence
    about teardrop tattoos to be fabricated, or at least unsupported by the six
    studies he claimed he relied on. Thus the fresh evidence is sufficiently cogent
    that if the trial judge had the benefit of it Totten would not have been qualified
    as an expert on the meaning of a teardrop tattoo and the jury would not have
    heard his evidence. The absence of Tottens evidence could reasonably be
    expected to have affected the verdict. The defences failure to adduce this
    evidence at trial should not bar its admissibility on appeal. The interests of
    justice warrant its admission to prevent a miscarriage of justice. Abbey asks
    that we overturn his conviction and enter an acquittal, or at least order a new
    trial.

[8]

For the most part the Crown does not challenge the fresh evidence. But
    the Crown submits that the fresh evidence would not have the effect of
    disqualifying Totten as an expert witness. At most, it might affect the weight
    a jury would give to his evidence. Most important, the fresh evidence should
    not give this court any concern about the reliability of Abbeys conviction or
    the possibility of a miscarriage of justice. The defence made a tactical
    decision not to adduce this evidence at trial and should not be entitled to
    revisit that decision on appeal. The Crown asks that Abbeys application to
    introduce fresh evidence and his appeal be dismissed.

[9]

Although this appeal turns almost entirely on Abbeys fresh evidence
    application, Abbey also submits that the trial judge made one error in his charge
    to the jury: he failed to instruct the jury not to consider Tottens evidence
    on the timing of obtaining a teardrop tattoo. The issues on this appeal may
    therefore be stated as follows:

(1)

Is the fresh evidence sufficiently
    cogent to have disqualified Totten from giving expert evidence about the
    meaning of a teardrop tattoo?

(2)

Would the absence of Tottens
    evidence reasonably be expected to have affected the verdict?

(3)

Does the defences failure to
    adduce the fresh evidence at trial affect its admissibility on appeal?

(4)

Did the trial judge err by
    failing to instruct the jury not to consider Tottens evidence on the timing of
    obtaining a teardrop tattoo?

(5)

What is the appropriate remedy?

[10]

I
    would answer yes to the questions posed in issues 1 and 2, and no to the
    questions posed in issues 3 and 4. In essence, I have concluded that the fresh
    evidence shows Tottens opinion evidence on the meaning of a teardrop tattoo to
    be too unreliable to be heard by a jury. If the trial judge had known about the
    fresh evidence he would have ruled Tottens evidence inadmissible. And the
    absence of Tottens evidence would reasonably be expected to have affected the
    jurys verdict. I would admit the fresh evidence, allow Abbeys appeal,
    overturn his conviction and order a new trial.

B.

background

(a)

The murder of Simeon Peter

[11]

On
    January 8, 2004, in the middle of the afternoon, Simeon Peter was shot and
    killed in Caronia Square, near Sheppard Avenue East and Morningside Avenue in
    Scarborough. He was 19 years old. Abbey, then 18 years old, was charged with
    first degree murder.

[12]

Abbey
    was an associate of the Malvern Crew, a street gang in Scarborough. Back in
    2004 the Malvern Crew was engaged in a brutal turf war with another Scarborough
    street gang, the Galloway Boys. The Crown alleged that Abbey killed Peter,
    believing him to be a member of the Galloway Boys. Sadly he was not. He was
    simply in the wrong place at the wrong time.

(b)

The first trial

[13]

The
    first trial took place in 2007. The parties agreed that whoever shot Peter was
    guilty of murder. As I have said, the main issue at trial was identity: who was
    the shooter. The secondary issue was whether the murder was planned and
    deliberate, thus elevating it to first degree murder.

[14]

The
    Crown relied on the evidence of three other Malvern Crew gang members, each of
    whose evidence implicated Abbey. The Crown also sought to lead evidence about
    the meaning of Abbeys teardrop tattoo. That evidence was to come from Totten
    and the three gang members. Totten was prepared to give evidence that one of
    the meanings of a teardrop tattoo was that the wearer had killed a rival gang
    member. The three Malvern Crew gang members were prepared to testify to a
    similar understanding of the teardrop tattoo. Totten claimed that his opinion
    was based on academic literature and his own clinical research; the three gang
    members said that their understanding came from television and movies.

[15]

The
    trial judge ruled that neither Totten nor the three gang members could give evidence
    about the meaning of a teardrop tattoo because the evidence was too unreliable.
    Abbey did not testify. As I have said, the jury acquitted him.

(c)

The second trial

[16]

The
    Crown appealed Abbeys acquittal and its appeal was allowed: see
R. v.
    Abbey
, 2009 ONCA 624, 97 O.R. (3d) 330 (
Abbey #1
). Doherty
    J.A., writing for the panel, held that the trial judge had erred in not
    permitting Totten to give opinion evidence on the meaning of a teardrop tattoo,
    and in not permitting the three gang members to testify about their
    understanding of what a teardrop tattoo meant. This court set aside Abbeys
    acquittal and ordered a new trial.

[17]

The
    new trial took place in the winter of 2011. The Crown led footprint impression
    evidence, cellphone tower evidence and the evidence of several eyewitnesses,
    including Peters girlfriend, who was walking ahead of him when he was shot.
    None of this evidence, however, conclusively pointed to Abbey as the shooter.
    Indeed, none of the eyewitnesses could identify Abbey as the shooter, and the
    trial judge commented to the jury that their evidence was particularly unclear
    and confusing.

[18]

Thus
    the two principal components of the Crowns case were the evidence of the three
    Malvern Crew gang members, Sams, Burton and Williams, implicating Abbey, and
    the evidence about the meaning of a teardrop tattoo.

(i)

The evidence of Sams, Burton and Williams pointing to Abbey as the
    shooter

[19]

Sams,
    Burton and Williams gave potentially compelling evidence against Abbey.

[20]

Sams
    testified that during the morning of the murder he was in Burtons car and they
    were driving in the Morningside Avenue and Sheppard Avenue East area when they
    saw a girl, Clorie-Ann Anderson, whom they recognized, together with a male
    wearing a hood and a bandana. Sams thought that the male might be a member of
    the Galloway Boys. They decided to approach the male but wanted a gun before
    they did so.

[21]

So
    they went to Abbeys house and told him whom they had seen. Abbey got in the
    car with them. As they were driving they saw Anderson and the male on the bus.
    They followed the bus and watched the two as they got off. Abbey then got out
    of the car and walked away. Sams saw Abbey the next day and asked him what had
    happened. Abbey said he thought the guy had a gun and was pulling it out so he
    shot him.

[22]

Burton
    gave a different account of what happened the day of the shooting. On his
    version, Abbey was with him and Sams from the outset. Burton was driving; Sams
    was in the front passenger seat; and Abbey was in the backseat. At the
    intersection of Morningside and Sheppard East they saw Anderson with a male in
    a fur jacket and a hood, and wearing a bandana over his face. Burton believed
    him to be a member of the Galloway Boys. Abbey then said he wanted to visit a
    friend. So Burton dropped him off. Burton claimed that no one in the car said
    anything about having a gun or wanting to get a gun. And he also said that Sams
    never asked to go to Abbeys house to get a gun.

[23]

Within
    days of the shooting, the media began circulating details and pictures of the
    car believed to have been involved in the shooting. Burton at first believed
    the car to be his  a bright blue Honda. He wondered why a car similar to his
    was in the news so he questioned Abbey. Abbey denied he had anything to do with
    the shooting and said if the police contacted Burton just dont say anything.
    Abbey, however said the guy who was shot had robbed him two weeks earlier.
    Burton then confronted Abbey and accused him of being the shooter. Abbey
    replied he was not going to really say if its me or not.

[24]

The
    Crown then refreshed Burtons memory with the statement Burton had given to the
    police incriminating Abbey. And Burton acknowledged Abbey had told him that he
    had followed the victim to Caronia Square, pulled out a gun and fired a couple
    of times shooting the victim in the leg. The victim started running away and
    Abbey shot him again, then stood over him and shot him a few more times. He
    pointed the gun at Anderson but realized it was empty so he fled.

[25]

Williams
    testified that in the summer of 2004, while in custody, he questioned Abbey
    about the shooting. Williams claimed Abbey told him four people were involved
    but the others were afraid to do what had to be done, so he took it into his
    own hands and did it. Williams said Abbey told him he shot the person in the
    leg and then shot him again. He tried to shoot Anderson but his gun was empty.
    He then ran back to his house.

[26]

Despite
    their evidence implicating Abbey, the testimony of Sams, Burton and Williams
    was problematic for the Crown. Sams and Burtons accounts of the incident
    differed. What Abbey apparently told each of the three also differed. And most
    important, each was a most unsavoury witness, and Sams and Burton had made a
    deal with the Crown to testify.

[27]

Although
    Williams had not made a deal with the Crown, he was a jailhouse informant with
    a lengthy criminal record. At the time of the murder he was serving a twelve-year
    sentence for a home invasion robbery at gunpoint. He defied a court order and
    refused even to testify at Abbeys second trial. His evidence from the first
    trial had to be read in to the jury.

[28]

Sams
    and Burton did testify for the Crown but only in exchange for immunity from
    prosecution for numerous serious offences, many arising from a police raid on
    the Malvern Crew known as Project Impact.

[29]

As
    a result of Project Impact Sams was charged with a lengthy list of offences, including
    attempted murder, conspiracy to commit an indictable offence, drug dealing,
    various firearms offences and participating in a criminal organization. He was
    also facing prosecution for a separate attempted murder charge. He pleaded
    guilty to the criminal organization charge and was sentenced to time served.
    All the other charges against him were stayed.

[30]

In
    May 2004, Burton was out on bail for several offences resulting from a police
    chase, including dangerous driving and drug and weapon offences. He then was
    arrested in the Project Impact raid and charged with additional offences,
    including possession of drugs and weapons and participating in a criminal
    organization. His bail was revoked. Anxious to get out of jail, he agreed to
    testify against Abbey in exchange for his freedom. Like Sams he pleaded guilty
    to the criminal organization charge. All other charges against him were
    withdrawn. So too were the deportation proceedings he was facing. It is hardly
    surprising that Burton agreed in cross-examination that his arrangement with
    the Crown was a dream come true.

[31]

The
    trial judge strongly cautioned the jury  a 
Vetrovec
 caution  about
    the danger of relying on the evidence of Sams, Burton or Williams without
    independent confirmation by other evidence. The trial judge emphasized to the
    jury that each of the three gang members had no compunction about lying or
    falsely implicating another to further his own interest or gain an advantage
    for himself.

(ii)

The evidence about the meaning of a teardrop tattoo

[32]

The
    Crowns case therefore rested significantly on the evidence concerning the
    meaning of a teardrop tattoo. Sams and Burton gave evidence about their
    understanding of what a teardrop tattoo meant to the wearer. But the source of
    their evidence was anecdotal  television, movies and stuff like that. The
    trial judge told the jury their evidence was unreliable, and had little force
    without Tottens evidence.

[33]

By
    elimination then, Tottens evidence played a prominent role in the Crowns
    case. I will review his evidence in detail when I discuss the first issue on
    appeal, the cogency of the fresh evidence.

[34]

In
    her closing address the Crown relied heavily on Tottens evidence in arguing to
    the jury that Abbey obtained a teardrop tattoo about four months after Peter
    was murdered to signify that he believed he had killed a member of the Galloway
    Boys. The agreed statement of facts filed by the parties gave force to the
    Crowns argument. The parties stipulated that no Malvern Crew gang member or
    associate was killed in 2003 or 2004, and that before June 1, 2004 Abbey had
    not spent time in custody. Also, no direct evidence was led at trial that Abbey
    had lost a family member, though Burton testified that when he asked Abbey
    about his teardrop tattoo Abbey told him he had lost a family member.

[35]

The
    trial judge charged the jury on Tottens evidence. He said his evidence is of
    considerable importance in this case. And, although the trial judge cautioned
    the jury about accepting Tottens evidence, and reviewed details of the
    defences attack on its reliability, he told the jury they had to decide what
    weight to give to the evidence.

[36]

Abbey
    again did not testify at his trial. This time, however, he was convicted of
    first degree murder.

(d)

The
voir dire
in
R. v. Gager

[37]

Gager
, too, was charged with murder. The
    Crown alleged that
Gager
was a
    member of a Toronto street gang and that the motive for the murder was a
    rivalry between his gang and another street gang. At this trial, however, the
    defence, not the Crown, proposed to call Totten as an expert on street gangs.
    The defence wanted to show, through Tottens opinion evidence, that
Gager
did not have the characteristics of
    a gang member.

[38]

The
    Crown did not concede that Totten was qualified to give expert evidence.
    Instead, at the beginning of the trial in February 2012, it challenged Tottens
    qualifications on a
voir dire
into the admissibility of his evidence.
    And the Crowns cross-examination revealed weaknesses and discrepancies in
    Tottens opinions. The Crowns impeachment of Totten on the
voir dire
forms an important part of Abbeys fresh evidence, and indeed was the catalyst
    for his fresh evidence application. I will address the relevant details about
    the Crowns cross-examination later in these reasons when I discuss the fresh
    evidence.

[39]

Despite
    his reservations, the trial judge in
Gager
, Clark J., did qualify
    Totten to give expert evidence in several areas. In doing so he said that a
    court should be reluctant to disqualify an expert called by the defence. But in
    his lengthy ruling Clark J. was quite scathing of Totten and his proposed
    opinion evidence. For example, he regarded Tottens claim that he is a Canadian
    expert on gangs to signify the sort of puffery that suggests a degree of
    immodesty on the witness part that is not in keeping with the detachment and
    objectivity properly to be expected of an expert witness. He also found
    Tottens answers to questions about the sample size in his studies both
    evasive and troubling. And he found Tottens answers to questions on his
    methodology also evasive.

[40]

Although
    Clark J. did qualify Totten to give opinion evidence, the defence, no doubt
    concerned by the Crowns cross-examination on the
voir dire
, elected
    not to call him.

(e)

Summary of the relevant chronology

[41]

The
    following is a bullet point summary of the relevant chronology and Tottens
    role:

·

1995-2005: Totten authors six studies, which he relies on for his
    opinion on the meaning of a teardrop tattoo.

·

January 2004: Simeon Peter is murdered.

·

2007: The first Abbey trial is held. The Crown proposes to call
    Totten to give expert evidence on the meaning of a teardrop tattoo, but the
    trial judge rules he is not qualified to give that evidence because it is too
    unreliable. Abbey is acquitted.

·

2009: This court allows the Crowns appeal, sets aside Abbeys
    acquittal and orders a new trial. The court holds that Totten is qualified to
    give opinion evidence on the meaning of a teardrop tattoo.

·

Winter 2011: The second Abbey trial is held. The Crown calls
    Totten as its expert witness on the meaning of a teardrop tattoo. Abbey is
    convicted of first degree murder.

·

February 2012: In
R. v. Gager
, an unrelated murder
    trial, the defence proposes to call Totten as an expert witness on street
    gangs. The Crown objects to the admissibility of his evidence and cross-examines
    him on a
voir dire
. The defence then decides not to call Totten.

·

February 2017: Abbeys appeal from his conviction is argued.

C.

The legal framework

[42]

On
    this appeal we must apply the test for the admission of fresh evidence on
    appeal to the test for the admission of expert evidence.

(a)

The test for the admission of fresh evidence on appeal

[43]

Under
    s. 683(1) of the
Criminal Code
, R.S.C. 1985, c. C-46, an appellate
    court has a broad discretion to receive evidence on appeal where it considers
    it in the interests of justice to do so. The burden is on the applicant  here
    Abbey  to establish that the fresh evidence is admissible.

[44]

Although
    the overriding test for the admission of fresh evidence is the interests of
    justice, appellate courts have structured their discretion under this broad
    standard by prescribing a specific set of criteria to be addressed. The leading
    Supreme Court of Canada case, decided nearly 40 years ago, is
Palmer v. The
    Queen
,
[1980] 1 S.C.R.
    759. A decade ago in
Truscott (Re)
, 2007 ONCA 575, 225 C.C.C. (3d)
    321, at para. 92, a five judge panel of this court reformulated the
Palmer
test. In these reasons I will use our courts reformulation. It consists of
    three criteria, each set out by a question:

1. Is the
    evidence admissible under the operative rules of evidence? (admissibility
    criterion)

2. Is the
    evidence sufficiently cogent in that it could reasonably be expected to have
    affected the verdict? (cogency criterion)

3. What is the explanation offered
    for the failure to adduce the evidence at trial and should that explanation
    affect the admissibility of the evidence? (due diligence criterion)

[45]

The
    present appeal turns on the second and third criteria  the cogency and due
    diligence criteria. Except in one respect  the Statistics Canada data  the
    first criterion is not at issue. Thus although Clark J.s ruling on the
voir
    dire
in
Gager
is obviously not admissible, the relevant portions
    of the Crowns cross-examination of Totten are admissible under our rules of
    evidence for the purpose of impeachment. So too are Tottens studies on gangs.
    The Statistics Canada data are a relatively minor component of Abbeys fresh
    evidence application, which I will deal with later in these reasons.

(b)

The test for the admissibility of expert evidence

[46]

The
    modern Canadian law on the admissibility of expert evidence began with the judgment
    of Sopinka J. in
R. v. Mohan
,
[1994] 2 S.C.R. 9. But in the last two decades since
Mohan
was decided
    the law on expert evidence has changed significantly. In
Abbey #1
itself  on the Crowns appeal from the acquittal at the first trial  my
    colleague Doherty J.A. reformulated the
Mohan
test for admissibility
    to make it easier to apply. And recently in
White Burgess Langille Inman v.
    Abbott and Haliburton Co.
,
2015 SCC 23, [2015] 2 S.C.R. 182, Cromwell J. adopted with minor adjustments Doherty
    J.A.s reformulation of
Mohan
.
[2]


[47]

The
    test in
White Burgess
is now the governing test for the admissibility
    of expert evidence. It adopts a two-stage approach, first suggested in
Abbey
    #1
: the first stage focuses on threshold requirements of admissibility;
    the second stage focuses on the trial judges discretionary gatekeeper role.
    Each stage has a specific set of criteria.

[48]

The
    test may be summarized as follows:
[3]

Expert evidence is admissible when:

(1)

It meets the threshold requirements of admissibility, which are:

a.

The evidence must be
    logically relevant;

b.

The evidence must be necessary to assist the trier of
    fact;

c.

The evidence must not be subject to any other
    exclusionary rule;

d.

The expert must be properly qualified, which includes
    the requirement that the expert be willing and able to fulfil the experts duty
    to the court to provide evidence that is:


i.

Impartial,


ii.

Independent,
    and


iii.

Unbiased.

e.

For opinions based on novel or contested science or
    science used for a novel purpose, the underlying science must be reliable for
    that purpose,

and

(2)

The trial judge, in a gatekeeper
    role, determines that the benefits of admitting the evidence outweigh its
    potential risks, considering such factors as:

a.

Legal relevance,
[4]

b.

Necessity,

c.

Reliability, and

d.

Absence of bias.
[5]

[49]

In
    short, if the proposed expert evidence does not meet the threshold requirements
    for admissibility it is excluded. If it does meet the threshold requirements, the
    trial judge then has a gatekeeper function. The trial judge must be satisfied
    that the benefits of admitting the evidence outweigh the costs of its admission.
    If the trial judge is so satisfied then the expert evidence may be admitted; if
    the trial judge is not so satisfied the evidence will be excluded even though
    it has met the threshold requirements.

[50]

On
    this appeal, of the threshold requirements for admissibility, only the fourth
    criterion  whether Totten is a properly qualified expert  is in issue. It is
    not in dispute that Tottens expert evidence on gang culture was logically
    relevant to the key issue in the case, the identity of the shooter; that it was
    necessary to assist the jury in determining who the shooter was, in the sense
    that the meaning of a teardrop tattoo was beyond the knowledge of the jurors;
    and that it was not subject to any other exclusionary rule. And it is not in
    dispute that the fifth criterion, as framed, has no application as Tottens
    opinion was not based on novel science or on a novel scientific theory. See
Abbey
    #1
,
at para. 116.

[51]

Of
    the enumerated factors to be considered at the gatekeeper stage, the three that
    are applicable are legal relevance, reliability and the absence of bias.

[52]

Before
    leaving the
White Burgess
test for the admissibility of expert
    evidence, I make three additional points, which I will elaborate on when
    discussing the fresh evidence.

[53]

First,
    recent case law, including
White Burgess
itself, has emphasized the
    importance of the trial judges gatekeeper role. No longer should expert
    evidence be routinely admitted with only its weight to be determined by the
    trier of fact. As Cromwell J. said in
White Burgess
,
at para. 20, [t]he unmistakable
    overall trend of the jurisprudence, however, has been to tighten the
    admissibility requirements and to enhance the judges gatekeeping role. Cromwell
    J.s observation echoes the point Binnie J. made in the earlier Supreme Court
    of Canada decision
R. v. J.-L.J.
, 2000 SCC 51, [2000] 2 S.C.R. 600, at
    para. 28: The admissibility of the expert evidence should be scrutinized at
    the time it is proffered, and not allowed too easy an entry on the basis that
    all of the frailties could go at the end of the day to weight rather than
    admissibility.

[54]

Second,
    case law since
Mohan
has also emphasized the importance of the
    reliability of the evidence to its admissibility. See, for example,
R. v.
    J.-L.J.
and
R. v. Trochym
,
2007 SCC 6, [2007] 1 S.C.R. 239. In
Abbey #1
,
at para. 87, Doherty J.A. pointed out
    that at the gatekeeper stage of admissibility the reliability of the proposed
    expert evidence is central to its probative value and thus to the benefits of
    admitting it. And as I will discuss, the unreliability of Tottens opinion
    evidence on teardrop tattoos, as demonstrated by the fresh evidence, is what
    disqualifies its admission.

[55]

The
    third and final point is that in
White Burgess
, at para. 45, Cromwell
    J. resolved a debate in the case law and held that an experts lack of
    impartiality and independence and an experts bias go to the admissibility of
    the experts evidence as well as to its weight, if admitted. At the
    admissibility stage these qualities are relevant to the threshold requirement
    of a properly qualified expert, and they are again relevant at the gatekeeper
    stage. Cromwell J., however, did point out at para. 49 of his reasons that
    rarely will a proposed experts evidence be ruled inadmissible for failing to
    meet this threshold requirement.

D.

The issues

1. Is the fresh evidence sufficiently
    cogent to have disqualified Totten from giving expert evidence about the
    meaning of a teardrop tattoo?

[56]

The
    cogency criterion for the admission of fresh evidence on appeal asks: is the
    evidence sufficiently cogent that it could reasonably be expected to have
    affected the verdict? In this case that question must be applied to the test
    for the admission of expert evidence. Because the two are intertwined, I think
    the analysis is easier to understand if the cogency question is divided into
    two separate questions:

·

Is the fresh evidence sufficiently cogent to have disqualified
    Totten from giving expert evidence about the meaning of a teardrop tattoo?

·

If the answer to the first question is yes, would the absence of
    Tottens evidence about the meaning of a teardrop tattoo reasonably be expected
    to have affected the verdict?

[57]

As
    I said at the outset of these reasons, I would answer yes to both questions.
    In this section I will deal with the first question, and in the next section of
    my reasons with the second question. Before discussing the cogency of the fresh
    evidence, I will summarize Tottens resume or curriculum vitae, his two reports
    for Abbeys trials and his evidence at the second trial on the meaning of a
    teardrop tattoo.

(a)

Mark Tottens curriculum vitae

[58]

On
    paper Totten has a most impressive curriculum vitae. It spans 28 pages of the
    appeal book. He has a B.A. in Social Behaviour from Queens University (1985),
    a Masters of Social Work from Carleton University (1986) and a PhD in Sociology,
    concentrating on youth gangs and violence, also from Carleton University
    (1996). Since 1997 he has been president of his own consulting company, Totten
    and Associates.

[59]

Totten
    has published four books, delivered numerous reports to governments and
    community organizations and received a large number of research and evaluation
    grants. According to his curriculum vitae, since 1990 he has delivered over 500
    keynote speeches, addresses, lectures, papers and workshops for international,
    national and local audiences on topics related to, among others, youth gangs,
    youth violence and youth homicides.

(b)

Tottens two reports for Abbeys trials

[60]

Before
    the first trial, Totten delivered two reports. The first is dated December 8,
    2006 and is titled Street Gangs and the Significance of the Teardrop Tattoo.
    The second is dated January 3, 2007 and is titled Street Gang Research Methodology
    and Implications for R. v. Abbey. The Crown relied on these two reports for
    the second Abbey trial. Totten did not produce a separate or supplementary
    report for the second trial.

[61]

Tottens
    first report is relatively brief and it includes no statistical data on
    teardrop tattoos. Totten, however, does say in this report that [i]t is common
    for
young recruits
to get teardrop tattoos to display that they have
    passed the test of murdering a rival gang member (emphasis in original). And
    he concludes his report with the following opinion: it is clear to me that
    Warren Abbeys teardrop tattoo on his right cheek below the eye represents the
    fact that he killed a rival gang member, most likely in 2004.

[62]

Tottens
    second report is lengthier and more detailed. In it he discusses his research
    methods and interview techniques. And he focuses on the meaning of a teardrop
    tattoo to a gang member, and the statistical data generated by his six studies,
    which he relies on for his opinion. The meanings Totten ascribes to a teardrop
    tattoo and his statistical data were replicated in his evidence at trial, to
    which I now turn.

(c)

Tottens evidence at the second trial

[63]

In
    the light of this courts 2009 judgment, the trial judge qualified Totten,
    without objection from the defence, to give expert opinion evidence for the
    Crown in relation to street gang culture and symbology  in particular with
    respect to the interpretation of tattoos and more particularly the teardrop
    tattoo. In giving his opinion Totten said he relied on his clinical experience
    over two decades, his research projects, and his review of the academic
    literature.

[64]

His
    opinion on the meaning of a teardrop tattoo had two branches: a qualitative branch
    and a quantitative branch. The fresh evidence challenges the quantitative
    branch, not the qualitative branch. But the two branches are intertwined.

[65]

First,
    the qualitative branch. Totten testified that a teardrop tattoo on the face of
    a young member of a street gang means one of three things:

·

The death of a family member of the wearer of the tattoo or of a
    fellow gang member;

·

The wearer of the tattoo had served time in a correctional
    facility, usually ten years or more; or

·

The wearer of the tattoo had murdered a rival gang member. Totten
    also said if this was the reason for the tattoo, typically the wearer would
    obtain it within six months of the homicide.

[66]

Second,
    the quantitative branch of Tottens opinion. Tottens evidence was that between
    1995 and 2005 he conducted six studies on young gang members. The six studies
    yielded the following dramatic statistics:

·

Totten studied a total of 290 young gang members;

·

Of the 290, 97 gang members had been convicted of a homicide,
    either murder or manslaughter;

·

Of the 97, 71 male gang members had teardrop tattoos; and

·

Each of the 71 told Totten he had obtained a teardrop tattoo to
    signify he had killed a rival gang member.

In his evidence at trial Totten gave no breakdown of
    the number of homicides or teardrop tattoos attributable to each study.

[67]

That
    Tottens statistics are based on his six studies is critical to my assessment
    of the cogency of the fresh evidence. The six studies in chronological order
    are the following:

·

Youth Services Bureau (YSB) Survey (May 1999): a one-month
    study to get a snapshot of the youth who were living on the street in Ottawa;

·

Guys, Gangs and Girlfriend Abuse (2000): an 18-month study of
    various forms of physical and sexual violence against women;

·

Understanding Serious Youth Violence (2001): a three-month study
    to investigate various forms of extreme violence;

·

When Children Kill (2002): a study into the lives of 19 young
    persons convicted of murder or manslaughter;

·

Youth Literacy and Violence Prevention Research Project (2003): a
    study of the literacy level of young people engaging in violence; and

·

The Gays in the Gang (2005): a report on the experiences of young
    gay, bisexual and transgender gang members who engaged in serious street
    violence.

[68]

The
    ages of the subjects studied ranged between 12 and 20. Most were male, but in a
    couple of the studies some of the subjects were female. None of the studies was
    geared toward the study of tattoos.

(d)

The fresh evidence

(i)

Introduction

[69]

Abbey
    has filed as fresh evidence relevant portions of the Crowns cross-examination
    of Totten in
Gager
, Tottens research studies and a small amount of
    Statistics Canada data. The purpose of the fresh evidence is to impeach the
    credibility and reliability of Tottens statistical evidence, which was a
    critical component of his opinion on the meaning of a teardrop tattoo. The
    fresh evidence seeks to demonstrate that Tottens opinion is replete with
    weaknesses, misrepresentations and even falsehoods.

[70]

Specifically,
    the fresh evidence mainly seeks to undermine the four key numbers that Totten
    said came from his six research studies and which he relied on for his opinion:
    290 gang members; 97 convicted of a homicide; 71 wore a teardrop tattoo; all 71
    obtained a teardrop tattoo to signify the killing of a rival gang member. In
    addition, the fresh evidence seeks to show duplication in Tottens studies,
    contrary to his sworn evidence in
Gager
, and misrepresentations in how
    he conducted his interviews.

[71]

The
    Crown has not disputed any of Abbeys fresh evidence, other than to contend
    that the Statistic Canada data are inadmissible because they are hearsay. The
    Crown has not filed any reply material. And neither side sought leave to call
    Totten to give evidence on the fresh evidence application. Thus for the purpose
    of this appeal I treat as unchallenged any problems with the reliability of
    Tottens opinion revealed by the fresh evidence.

(ii)

290 gang members

[72]

Totten
    testified that the total number of gang members in his six research studies was
    290, broken down as follows:

·

YSB Survey: 51

·

Guys, Gangs and Girlfriend Abuse: 90

·

Understanding Serious Youth Violence: 31

·

When Children Kill: 9

·

Youth Literacy and Violence Prevention Research Project: 84

·

The Gays in the Gang: 25

[73]

Abbey
    challenges the figure of 90 gang members said to be between 13 and 17 years of
    age in what was Tottens biggest study up to the time of trial and also his
    doctoral dissertation: Guys, Gangs and Girlfriend Abuse. Abbey submits that 90
    is a misrepresentation and that a review of the study shows that the accurate
    figure is 22, thus reducing Tottens sample size from 290 to 222. I agree with
    Abbeys submission.

[74]

In
Gager
, Totten was extensively cross-examined on his use of the figure
    of 90. He gave two explanations, neither of which I find convincing.

[75]

His
    first explanation was that the figure of 90 gang members reflected a continuum
    of gang involvement. Some were hard core gang members and others belong[ed] to
    anti-social peer groups where violence was common. In this study (at p. 58)
    Totten does refer to a continuum of male peer groups/gangs, spanning from
    groups of friends to hard-core criminal gangs.

[76]

But
    Totten produced two charts (at pp. 59 and 60), one distinguishing between abusers
    and non-abusers, and the other characterizing abusive behaviour in various
    situations, for example living at home or in school. In each chart Totten
    identifies among the 90 participants the number of gang members. That number
    is 22. And in his chart distinguishing between abusers and non-abusers, only 60
    participants are said to be abusers. For the 90 participants to be gang
    members, as Totten claimed in his evidence, all 30 non-abusers would have to be
    considered gang members. That would be surprising, and in my view, highly
    unlikely.

[77]

Totten
    does not define gang member in his study but in his charts he considered that
    only 22 qualified. And on any reasonable definition of a gang member it is not
    realistic to think people in a group of friends would be classified as gang
    members. Further, in his report in
Gager
Totten defines street gangs
    as visible, hardcore groups that come together for profit-driven criminal activity
    and severe violence. That definition obviously restricts the number of gang
    members in his study to 22.

[78]

That
    22 is the correct figure is also evident later in Tottens study. Of the 90
    participants he singled out 30 for in depth interviews. He has a chart (at p.
    166) dividing the 30 into gang members and peer group members. Only 17 of
    the 30 are classified as gang members, again showing that the figure of 90 is
    an inflated figure.

[79]

Tottens
    second explanation for using the figure 90 was even less convincing: it was
    nonsensical. Totten claimed that his definition of gang member had changed over
    time. It was broader when he did the study than when it was 12 years later when
    he testified in
Gager
. But, of course, on that explanation there
    should be even fewer gang members now, not more. Even the Crown fairly conceded
    that Tottens explanation didnt make sense.

[80]

Totten
    also misrepresented his sample size of gang members in one of two more recent
    studies, produced after the second trial in this case but before the
voir
    dire
in
Gager
. The two studies  one in Prince Albert and the
    other in Regina, Saskatchewan  looked at aboriginal gangs, not conventional
    street gangs. According to Tottens evidence in
Gager
these two
    studies added 229 additional gang members to his overall sample size  151 in
    the Prince Albert study and 78 in the Regina study  for a total sample size of
    519 gang members. But a review of the Prince Albert study shows that the figure
    of 151 is inflated, and indeed false. The study itself states that only 49
    percent of the 151, or about 72 participants, were current or recent gang
    members.

[81]

Sample
    size is obviously important to Totten. In his second report for the first trial
    he claimed that his sample size of 290 street gang members was considerably
    larger than the sample size in any existing gang study,
[6]
and was large enough that his results could be generalized to other parts of
    Canada. In his report for
Gager
he claimed that his sample size of 519
    was many times larger than the sample size used in previous Canadian studies.
    And, sample size is indeed important. The larger the sample the more significant
    the results derived from the data and the more confidence we can have in the
    inferences sought to be drawn from those results.

[82]

But
    inflating his sample size as Totten has done by misrepresenting the number of
    gang members casts a dark cloud over the reliability of his statistical
    evidence. The number of gang members in his study of Guys, Gangs and Girlfriend
    Abuse is 22 not 90, and his accurate total sample size is 222, not 290. The
    reduction in Tottens sample size likely affects, to an extent unknown, the
    numbers derived from it  97 who committed a homicide, 71 of which had a
    teardrop tattoo.

(iii)

97 gang members were convicted of a homicide
[7]

[83]

Totten
    claimed that of his sample size of 290 gang members, 97, fully one third, were
    convicted of homicide, either murder or manslaughter. Leaving aside that the
    sample size should be 222 not 290, I find it impossible to discern how Totten
    arrived at the figure of 97 or any number close to it from his six studies. The
    number may be correct but it cannot be found in the six studies.

[84]

The
    only study that expressly addresses homicides is When Children Kill, a small
    study of 19 children. All 19 killed another person but at most nine out of the
    19 were gang members and none of the nine killed a rival gang member. At best
    one can assume nine gang members could have contributed to the 97 who committed
    a homicide. But none of the nine could have contributed to the 71 who obtained
    a teardrop tattoo to signify the killing of a rival gang member.

[85]

Very
    few individuals interviewed in Tottens five other studies were convicted of
    homicide. The details are as follows:

·

The YSB May 1999 Youth Survey focused on the living circumstances
    of clients of the Ottawa Youth Services Bureau over the course of one month,
    April 1999. Of the 309 participants Totten identified 51 as gang members.
    According to Totten, 82 of the 309 participants committed a major physical
    assault. Homicide is not mentioned. And nowhere in the report does Totten
    suggest that any of the 51 gang members committed a murder or manslaughter;

·

In Guys, Gangs and Girlfriend Abuse, none of the gang members
    studied was reported to have been convicted of a homicide. The study looked at
    abuse towards girlfriends. Totten defined physical abuse as an assault, aggravated
    assault, assault with a weapon or assault causing bodily harm. His definition
    does not include murder or manslaughter. The gang members studied were abusive
    to their girlfriends but none had killed a girlfriend, let alone a rival gang
    member;

·

The Gays in the Gang was a study of 25 gay, bisexual and transgender
    gang members between ages 14 and 20. All 25 had committed extreme acts of
    violence, which could include murder. But only eight of the 25 were interviewed
    at a correctional facility. So, likely at most, the study could contribute less
    than ten to the figure of 97;

·

In the first Abbey trial Totten admitted that none of the
    participants in the Understanding Serious Youth Violence study had been
    convicted of a homicide; and

·

In the Youth Literacy and Violence Prevention Research Report, 84
    participants with an average age of 17.7 years self-identified as gang members.
    None of the 84 was said to have been convicted of a homicide.

[86]

In
    summary, only in the two studies When Children Kill and The Gays in the Gang
    did Totten specify that some of the gang members had committed a homicide. But
    the number who did was relatively small, less than ten in each study. The total
    of less than twenty falls far short of the 97 Totten claimed in his evidence.

[87]

Abbey
    filed Statistics Canada data as part of his fresh evidence application to support
    his argument that the figure of 97 is false. The Crown objected to the
    admissibility of these data on the ground that they were simply appended to an
    affidavit of an assistant to counsel on appeal, Mr. Harris, and thus were
    hearsay.

[88]

In
    my opinion, the Statistics Canada data are admissible in the form in which they
    were filed under the common law public documents exception to the rule against
    hearsay. See
R. v. P.(A.)
(1996), 109 C.C.C. (3d) 385 (C.A.).
[8]
Although the Statistics Canada data are admissible, I do not find them helpful.
    They do not distinguish between when a person committed a homicide or was
    charged or convicted of a homicide, and therefore cannot be compared to
    Tottens data.

[89]

Even
    without the Statistics Canada data the number of 97 is not supported by the
    written studies Totten authored. Neither that number nor any number close to it
    is disclosed by the six studies he claimed to have relied on. For that reason
    whether 97 young gang members in his studies were convicted of a homicide
    cannot be assessed or verified.

(iv)

71 males of the 97 gang members convicted of a homicide had a teardrop
    tattoo

[90]

Totten claimed that, of the 97 gang members in his studies who were
    convicted of murder or manslaughter, 71 males obtained a teardrop tattoo. This
    claim is even more troubling, even assuming the accuracy of the figure of 97.
    Not a single study lists the number of gang members who had a teardrop tattoo.
    Indeed, the texts of the six studies contain only a few references to tattoos
    and no reference at all to teardrop tattoos.

[91]

Nonetheless, Totten testified at the
Gager voir dire
that all
    six studies asked questions about tattoos. But the studies say otherwise. Here
    is what each study says about tattoos and questions on tattoos:

·

The YSB May 1999 Youth Survey does not list what questions were
    asked of the participants and contains no discussion of tattoos;

·

Appendices A and B of the Guys, Gangs and Girlfriends Abuse study
    list the questions asked of each participant. The questionnaire is detailed: 40
    initial screening questions followed by in depth interview questions. Yet the
    questionnaire does not include a single question about tattoos. And the study
    itself, including the various charts, does not discuss or refer to tattoos. The
    absence of questions about tattoos and references to them in the study is
    hardly surprising. The purpose of the study was to explore how male youth made
    sense of their abusive behaviour towards their girlfriends;

·

In Understanding Serious Youth Violence, question 6 of the
    interview questions asks: Do you have any tattoos? Can you show me? What
    does/do the tattoo(s) mean to you? Question 7 asks: How do you communicate
    with gang members  Probe for  tattoo. The report has a section on case
    studies and several of the subjects discuss their tattoos. But the report
    contains no discussion of teardrop tattoos;

·

Appendix A in When Children Kill lists the questions asked of the
    19 participants. None of the questions asks about tattoos. The book itself does
    contain a few references to tattoos but none to teardrop tattoos;

·

Appendix A in the Youth Literacy and Violence Prevention Research
    report lists the questions to be asked to the participants and the list does
    include questions on tattoos. Question 18 asks: Can you tell me how gang
    members communicate with each other in your gang? With rival gang members? With
    other people? Probe for details around  tattoos. Question 19 asks: Do you
    have any tattoos? Can you show them to me? Question 20 asks: What does the
    tattoo mean to you (probe for each tattoo)? But again the report contains no
    discussion of teardrop tattoos; and

·

The Gays in the Gang study does not list the questions asked to the
    participants. In the body of the study Totten says questions about tattooing
    were included in the study, and indeed the study does discuss the tattoos of a
    few of the participants. But once again the study has no discussion of teardrop
    tattoos.

[92]

In summary, in two of the six studies questions about tattoos were
    listed; in two they were not; and two were silent about the questions asked.
    And no study contained any discussion of or reference to teardrop tattoos, or a
    list of how many participants had them. Totten said it was not unusual that his
    studies failed to include questions on tattoos. But again his evidence cannot
    be verified by a review of the studies.

[93]

In his 2009 judgment in
Abbey #1
,
at para. 119, Doherty J.A. suggested that in assessing
    the reliability of an experts opinion that relies on data collected through
    various means such as interviews  as Tottens opinion does  one important
    question to ask is whether the data are accurately recorded, stored and
    available. In
Gager
the Crown asked Totten essentially this very
    question.

[94]

The Crown asked Totten for a breakdown of the number of tattoos,
    including teardrop tattoos, in each study, for a list of the 71 male gang
    members who had a teardrop tattoo and for the raw data supporting her request.
    Totten said he did not have the data with him. However, Totten told the Crown
    he had masses of data at home, and had collected and maintained his data on
    teardrop tattoos. He testified: I can give you the numbers with teardrops,
    with the teardrop tattoo out of those six studies. He promised to get the data
    and bring them to court.

[95]

Surprisingly, after the luncheon recess, Totten did an about-face. He told
    the Crown and the trial judge he had no data on teardrop tattoos as he had
    destroyed all of his data in accordance with the guidelines of the tri-council
    ethics committee. Totten said that under these guidelines he was bound to keep
    his raw data for 10 years, and then destroy them. Totten was not asked and did
    not say when he destroyed his data, and he did not produce a copy of the
    committees guidelines.

[96]

The Crown argues that we cannot rely on Tottens evidence about the destruction
    of his data because that issue arose for the first time in the
Gager
trial. In
Abbeys first
trial,
    the defence made no complaint about the lack of disclosure. I do not agree with
    the Crowns argument. The
Gager
trial took place about eleven months
    after Abbeys second trial, and it is thus likely that the state of Tottens
    raw data was the same at the time of both trials. Indeed if we accept Tottens
    evidence that he destroys his data after ten years most of the data from his
    studies would have been destroyed before the second trial. Neither the Crown
    nor Totten has suggested otherwise.

[97]

More important, Tottens evidence raises serious concerns about his
    credibility and the reliability of his assertion that 71 of the 97 gang members
    had teardrop tattoos. The concerns are twofold. First, Tottens over-lunch
    about-face regarding whether he had his data is, at least, suspicious. Second,
    without access to the underlying data a court cannot test the reliability of
    Tottens claim that in his sample drawn from his six studies, 71 young male
    gang members who had been convicted of a homicide had a teardrop tattoo.

(v)

Each of the 71 told Totten he had obtained a teardrop tattoo to signify
    the killing of a rival gang member

[98]

At
    trial the Crown asked Totten the following question:

I just want to be certain I understand. So the 71 who had been
    convicted of murder or manslaughter that had a teardrop tattoo all indicated,
    told you, when you asked, that the teardrop signified killing of a rival gang
    member; is that right?

[99]

Totten answered: Thats right. His answer undoubtedly was one of the
    most powerful pieces of evidence, if not the most powerful piece of evidence,
    supporting the Crowns allegation that Abbey had murdered Peter. Yet on its face
    the answer seems implausible. Totten had testified that a young gang member
    would get a teardrop tattoo for one of three reasons. But according to his
    evidence not a single gang member among the 71 obtained a teardrop tattoo to
    signify the loss of a family member or fellow gang member, or to signify having
    been in a correctional facility. The implausibility of Tottens answer raises a
    concern about whether he had become a partisan advocate for the Crown, instead
    of an objective and impartial expert witness.

[100]

Even more significant, Tottens assertion that all 71 obtained a
    teardrop tattoo to signify the killing of a rival gang member cannot be tested
    or verified. All six of his studies are silent  none contains even a single
    reference to a teardrop tattoo, let alone the number of gang members who had
    one. In at least two of his studies the listed interview questions do not
    include a question on tattoos. Moreover, the figure from which the 71 is drawn,
    97 who were convicted of a homicide, is itself suspect. And Totten claims to no
    longer have the raw data that could support his assertion.

(vi)

Duplication

[101]

In
Gager
, Totten was asked: Is there any duplication between
    the participants in any of these studies? Did you ever use gang members more
    than once in different studies? He replied: Never. His reply was false.

[102]

At least three participants were used in both Guys, Gangs and Girlfriend
    Abuse (2000) and The Gays in the Gang (2005). Their names are Bob, Phil and
    Brian. Identical quotes from these three participants are found in the
    interview summaries in both studies.

[103]

Other aspects of this duplication are even more concerning. Totten said
    that the primary research for Guys, Gangs and Girlfriend Abuse was done in 1993-4,
    and the interviews for The Gays in the Gang was done ten years later in 2004.
    Despite the ten-year gap the verbatim quotes attributed to Bob, Phil and Brian
    are identical in the two studies, as is the age of each one. In the first study,
    Guys, Gangs and Girlfriend Abuse, none of the three are overtly said to be gay
    (although there are suggestions that Bob and Phil are questioning their
    sexuality); in the second study The Gays in the Gang, all three are said to be
    gay.

[104]

The amount of duplication uncovered by the fresh evidence is small. But
    that it exists at all, contrary to Tottens sworn testimony, raises further
    concerns about the credibility and reliability of his opinion evidence. Indeed,
    the duplication raises a legitimate concern that Tottens interview summaries
    are fabrications.

(vii)

Interview discrepancies

[105]

Tottens YSB May 1999 Youth Survey, a one-month study of the living
    circumstances and behaviour of Ottawa youth who were clients of the Youth
    Services Bureau, included interviews of 309 participants. The survey itself
    says that over one half of the interview questionnaire was completed by the
    young person alone and the remainder by the young person together with one of
    Tottens staff.

[106]

In his evidence at trial, however, Totten claimed that he was present
    for all the interviews and that each interview was at least one hour long. By
    the time he testified at the
Gager voir dire
each interview had become
    one to three hours long. He backtracked somewhat in his re-examination in
Gager
,
    and admitted some of the interviews were done by the staff and some were short.
    But he maintained that he was present at every interview. As Clark J. aptly
    commented at para. 54 of his ruling:

Allowing time for sleep and other necessary daily activities,
    inasmuch as there are only 744 hours in the month of May,

even using the lower figure of one hour for
    each interview simple arithmetic makes it difficult to accept that he could
    have performed that number of interviews in that time frame.

(e)

Positions of the parties and analysis

[107]

This first and central issue on the appeal turns on the degree of
    cogency of the fresh evidence. Abbey submits it is so cogent that if known by
    the trial judge it would have been sufficient to disqualify Totten from
    testifying before the jury about the meaning of a teardrop tattoo. Abbey
    contends the fresh evidence shows that Tottens opinion evidence was largely fabricated
    or concocted, or at the very least was not supported by the studies he claims
    he relied on. Thus he was a biased witness  he was not fair, objective and
    non-partisan; or his evidence was of dubious reliability. On either basis, the
    fresh evidence demonstrates his evidence should not have been heard by the
    jury.

[108]

The Crown acknowledges that the fresh evidence has demonstrated what he
    categorizes as irregularities in Tottens testimony. But the Crown submits
    these irregularities are not so cogent that they would have prevented Totten
    from testifying; at most, they might affect the weight the jury would give to
    his evidence. The Crown contends that the fresh evidence does not call into
    question the heart of Tottens opinion, that the teardrop tattoo on a young
    gang member can mean only one of three things, one of which is the killing of a
    rival gang member. Moreover the Crown says this court cannot make a finding
    that Totten concocted his evidence because he was not given an opportunity either
    in
Gager
or on this appeal to explain much of the fresh evidence Abbey
    now relies on.

[109]

I agree with Abbeys submission that the fresh evidence is sufficiently
    cogent that if it had been put before the trial judge he would have ruled
    Tottens opinion evidence about the meaning of a teardrop tattoo inadmissible.
    However, even though the fresh evidence does raise concerns about whether
    Totten was a fair and objective witness, I do not think it establishes a case
    of bias. Even with the fresh evidence I am satisfied that Tottens expert
    evidence would meet the threshold requirements for admissibility at the first
    stage of the
White Burgess
test. Cromwell J. noted in
White
    Burgess
that only in a rare case will expert evidence fail to meet the
    threshold requirement of being impartial and unbiased. This is not one of those
    rare cases. Nor do I think this is a case where Tottens evidence would be rendered
    inadmissible at the second gatekeeper stage because of bias.

[110]

And I agree with the Crowns contention to the extent that on this
    record I would not conclude Totten had concocted his evidence. It would not be
    fair to Totten to make that finding when he has had no opportunity to explain
    or meet some of the fresh evidence put against him. But I do not think it is
    necessary to go as far as finding fabrication or concoction to render Tottens
    opinion evidence inadmissible.

[111]

The fundamental problem with Tottens trial evidence, which was brought
    to light by the fresh evidence, is its reliability, or more accurately its
    unreliability. If the trial judge had known about the fresh evidence, then at
    the gatekeeper stage he would have exercised his discretion and ruled that Tottens
    evidence could not go to the jury because of its unreliability.

[112]

A trial judges gatekeeper role is crucial in ensuring that expert
    evidence is sufficiently reliable to be admitted into evidence. Under the test
    in
White Burgess
for the admissibility of expert evidence,
    reliability is an express factor the trial judge must consider at the
    gatekeeper stage; and reliability is a key component of the evidences
    probative value and thus of another express factor, legal relevance.

[113]

The focus on the reliability of expert evidence at the gatekeeper stage
    was also a theme in the important report of the
Inquiry into Pediatric
    Forensic Pathology in Ontario
(Toronto: Ontario Ministry of the Attorney
    General, 2008) authored by our former colleague Stephen Goudge. He observed at
    vol. 3, p. 470: The evidence at this Inquiry demonstrated that the legal
    system is vulnerable to unreliable expert evidence, especially when it is
    presented by someone with [the experts] demeanour and reputation. And so he
    emphasized at pp. 478-479 that the gatekeeper must keep unreliable evidence
    from being heard by the trier of fact. To repeat what Binnie J. said in
R.
    v. J.-L.J.
,
at para. 28: In
    the course of
Mohan
and other judgments, the Court has emphasized that
    the trial judge should take seriously the role of gatekeeper.

[114]

The trial judge as gatekeeper is engaged in a cost-benefit analysis. That
    analysis is applied to many areas of the law of evidence, not just the law
    governing the admissibility of expert evidence. For expert evidence, the trial
    judge must decide whether opinion evidence that meets the threshold
    requirements of admissibility should still be ruled inadmissible because the
    potential harms to the trial process from admitting it outweigh its potential
    benefits. Put the other way around and in familiar terms, the trial judge must
    decide whether the probative value of the expert evidence outweighs its
    potential prejudice: see
R. v. Bingley
, 2017 SCC 12, 345 C.C.C. (3d)
    306, at para. 6, and
Abbey #1
,
at paras. 76-79.

[115]

Expert evidence of dubious or questionable reliability has little
    probative value, and offers little benefit to the trial process. At the same
    time, evidence of questionable reliability risks distorting and prejudicing the
    fact-finding process: see
Mohan
,
at p. 21.

[116]

Many criteria may bear on the reliability of expert evidence. Doherty J.A.
    has a useful list of criteria in
Abbey #1
,
at para. 119. The Goudge Report at p. 488 has a similar
    list. Neither list is said to be exhaustive. On this appeal two criteria bearing
    on the reliability of Tottens expert opinion on teardrop tattoos are particularly
    pertinent:

·

The opinion must accurately represent the data and studies on
    which it is based; and

·

When the opinion is based on data obtained through interviews,
    the data must be accurately recorded in the studies on which the opinion is
    based, and must be available so that they may be examined and verified by the
    court.

In the light of the fresh
    evidence, Tottens expert opinion fails to meet either of these criteria.

[117]

First, Tottens opinion evidence at trial misrepresented the data in his
    studies. The most serious misrepresentation was the size of his sample. Totten
    claimed the total sample size in his six studies was 290 gang members. He
    inflated the number in his evidence, likely to try to demonstrate his sample
    size was the largest of any Canadian study on gangs. The accurate number is at most
    222, a significant reduction. This reduction calls into question Tottens other
    figures, such as the 97 who committed a homicide and the 71 who wore a teardrop
    tattoo. Other misrepresentations, which I have reviewed, are Tottens claim he
    never used a gang member more than once in his studies and his claim to have
    sat through every interview in at least one of his studies.

[118]

Second, however, and in my view more important, the key statistical
    components of Tottens opinion evidence on the meaning of a teardrop tattoo are
    not supported by the six studies on which his opinion evidence is based. And,
    the underlying interview data, which Totten claims support his opinion
    evidence, are no longer available for the courts examination because he said
    he destroyed them.

[119]

In his article on the Goudge Report, Taking a G
oudge
out of Bluster and Blarney: An Evidence-Based
    Approach to Expert Testimony (2009) 13 Can. Crim. L. Rev. 135, Professor
    David Paciocco, now Paciocco J.A. of this court, aptly commented that courts
    now take what he called, and what the Goudge Report called, an evidence-based
    approach to the evaluation of the reliability of expert evidence. He wrote at p.
    146: In effect, the trust me approach, once typical in Canadian courts, has
    been replaced by a persuade me standard. And near the end of his article, at
    p. 155, in words directly relevant to the reliability of Tottens opinion
    evidence, he wrote: the essence of an evidence-based approach is that the
    tribunal be given all of the data it needs to assess the opinion it is being
    asked to accept. Anything less and a trust me approach is used.

[120]

Tottens opinion
    evidence asks us to trust him. He asked us to trust him that:

·

In his six studies a total of 97 gang members were convicted of a
    homicide, even though the studies report less than 20;

·

All gang members in his six studies were asked questions about
    tattoos, even though only two of the studies specified questions about tattoos;

·

71 male gang members in his six studies obtained a teardrop
    tattoo, even though none of the studies lists or even refers to a gang member
    wearing a teardrop tattoo, and the underlying interview data are not available;
    and

·

All 71 male gang members obtained a teardrop tattoo to signify
    the killing of a rival gang member, even though none of the studies refer to
    the number of gang members with a teardrop tattoo, let alone each gang members
    purpose in getting one, and again the underlying interview data to verify Tottens
    evidence are not available.

[121]

The fresh evidence, in my view, shows that Tottens evidence is too
    unreliable to go to a jury. Because of its unreliability, its probative value
    and its benefit to the trial process would be minimal at best, and the
    prejudice and harm from admitting it would be great both because it would
    consume too much valuable court time and because the jury would likely be
    unable to effectively and critically assess the evidence. In short, the fresh
    evidence is so cogent that if known by the trial judge at the gatekeeper stage
    he would have ruled Tottens evidence on the meaning of a teardrop tattoo
    inadmissible.

[122]

The Crown is correct that the fresh evidence does not challenge the
    qualitative branch of Tottens opinion  the teardrop tattoo on a young gang
    member could mean one of three things and one of those meanings is to signify the
    killing of a rival gang member. But that distinction does not help the Crown.
    The qualitative branch of Tottens opinion is inseparable from the quantitative
    branch of his opinion. The quantitative branch gives the qualitative branch the
    veneer of being grounded in powerful scientific data, and thus the appearance
    of being objectively reliable. The fresh evidence all but washes away that
    veneer, and with it the reliability of Tottens opinion.

[123]

The Crown is also correct that on the
voir dire
in
Gager
Totten was not confronted with a good deal of the fresh evidence. And on this
    appeal Totten was not asked to explain any of the deficiencies and inaccuracies
    in his evidence and research. But the absence of any explanation from Totten
    cannot assist the Crown in its objection to the admissibility of the fresh
    evidence. The Crown did not seek leave to call Totten on the fresh evidence
    application. Nor did the Crown offer evidence that might explain these flaws in
    Tottens testimony and research revealed by the fresh evidence. These flaws
    remain unchallenged.

[124]

Still, as Totten has not been directly confronted with some of these deficiencies
    and inaccuracies in his testimony and research I think it would be unfair to
    make the positive finding that Abbey urges us to make: Totten fabricated or
    concocted part of his research, or gave deliberately misleading testimony. But
    when assessing the reliability of Tottens opinion, I see nothing unfair in
    taking into account that the many serious problems in both Tottens evidence
    and research, which were identified by the fresh evidence, remain entirely
    unexplained.

[125]

I conclude that the fresh evidence was sufficiently cogent that if it
    had been known by the trial judge, Tottens opinion evidence on the meaning of
    a teardrop tattoo would have been held inadmissible.

2. Would the absence of Tottens
    evidence about the meaning of a teardrop tattoo reasonably be expected to have affected
    the verdict?

[126]

The Crown submits that the fresh evidence should not give this court strong
    reason to doubt the accuracy of the verdict against Abbey. That submission
    might have merit if the fresh evidence only diminished the weight the jury
    might give to Tottens evidence. But I have concluded the fresh evidence is
    sufficiently cogent that if known by the trial judge Tottens proposed expert
    testimony would have been ruled inadmissible. And in my view, if the Crown had
    been precluded from leading Tottens evidence about the meaning of a teardrop
    tattoo it could reasonably be expected the verdict would have been different. I
    say this for four reasons.

[127]

The first and most obvious reason is the different results of the two
    trials. At the first trial, the trial judge ruled that the Crown could not lead
    Tottens evidence and Abbey was acquitted. At the second trial, the Crown did
    lead Tottens evidence about the meaning of a teardrop tattoo and Abbey was
    convicted.

[128]

Second, the rest of the Crowns case against Abbey  which I summarized
    earlier in these reasons  was not overly strong. The eyewitness identification
    evidence was inconclusive, as was the footprint impression evidence and the
    cellphone tower evidence. Each of the three Malvern Crew members, Sams, Burton
    and Williams, did testify about their understanding of the meaning of the
    teardrop tattoo, and each implicated Abbey in the murder. But their evidence
    was problematic. Their understanding of the meaning of a teardrop tattoo came
    from movies and the like, so the trial judge appropriately instructed the jury
    it was unreliable. Their evidence implicating Abbey in the murder was severely
    compromised by its inconsistencies; by each of their unsavoury pasts; in the
    case of Sams and Burton by the highly beneficial deals each made with the Crown
    in exchange for his testimony; and in the case of Williams by his refusal to
    testify at the second trial.

[129]

Third, Tottens evidence implicating Abbey would likely have
    significantly influenced the jury. Totten had extensive and impressive
    academic, research and clinical credentials. He claimed to have special access
    to the secret world of street gangs and gang symbology, realms almost certainly
    foreign to the members of the jury. And one aspect of his evidence was
    especially compelling: although a teardrop tattoo could have one of three
    meanings in his six studies all 71 gang members who had a teardrop tattoo and
    had been convicted of a homicide told Totten he obtained the teardrop tattoo to
    signify the killing of a rival gang member. For the Crown that evidence could
    not be improved on.

[130]

Finally, in her closing address to the jury the Crown relied on Tottens
    evidence. She argued:

All of those 71, who had been convicted of murder or
    manslaughter and had a teardrop tattoo, said that the tattoo signified the
    killing  His [Tottens] opinion rested, in part, on the explanation given for
    the teardrop tattoo by all 71 of the interviewed gang members who had both
    tattoos and had been convicted of murder or homicide related offence. Their
    responses linking their teardrop tattoos with the murders of rival gang members
    could not have been motivated by a desire to avoid criminal liability or
    responsibility because they had already been convicted.

[131]

And, after excluding the other two possible meanings of a teardrop
    tattoo, the Crown concluded this portion of her closing address by stating that
    Abbey had obtained a teardrop tattoo for only one reason: he believed he had
    killed a member of the Galloway Boys.

[132]

The absence of Tottens evidence would therefore reasonably be expected
    to have affected the verdict at trial.

3. Does the defences failure to
    adduce the fresh evidence at trial affect its admissibility on appeal?

[133]

Once a party meets the first two criteria for the admissibility of fresh
    evidence on appeal  as Abbey has done  the court must still consider the
    third criterion, the due diligence criterion. The court asks whether an
    explanation has been offered for the failure to address the evidence at trial
    and whether any explanation offered affects the admissibility of the evidence
    on appeal.

[134]

The question is important because the interests of justice include not
    just Abbeys interests but the public interest in preserving and promoting the
    integrity of the trial process. Even fresh evidence that could be expected to
    have affected the verdict can be ruled inadmissible if no satisfactory
    explanation is given for not leading it at trial. On the other hand, fresh
    evidence may be so cogent that it should be admitted on appeal even without a
    satisfactory explanation for not adducing it at trial: see
Truscott (Re)
,
    at paras. 101-102.

[135]

Here, Abbey offers no explanation for the defences failure to adduce
    the fresh evidence at either trial. Instead, Abbey submits simply the fresh
    evidence is so cogent that not to admit it may result in a miscarriage of
    justice.

[136]

The Crown acknowledges that the due diligence criterion will yield where
    its rigid application may result in a miscarriage of justice. Thus the Crown
    accepts that were we to hold that the fresh evidence showed Totten had
    concocted his trial testimony, we should admit the fresh evidence even absent
    due diligence. But I have not concluded that Totten concocted his evidence. And
    I take the Crowns submission to be that without a conclusion of concoction the
    absence of due diligence and the importance of finality in our criminal
    justice system weigh in favour of dismissing Abbeys application to introduce
    fresh evidence.

[137]

The Crown points to a number of considerations in support of its
    submission:

·

Almost all of the fresh evidence is not fresh in the sense that
    most of the information the Crown relied on to cross-examine Totten on the
voir
    dire
in
Gager
was available to Abbeys defence counsel even
    before the first trial;

·

The defence has never complained about disclosure from the Crown
    or that it was denied any material it had requested;

·

On appeal Abbey makes no claim of ineffective assistance of trial
    counsel, yet offers no explanation for the failure to adduce this evidence at
    either trial;

·

To the contrary, defence counsel at trial made a strategic and
    tactical decision to cross-examine Totten in a particular way. Unlike the
    cross-examination of Totten in
Gager
, which was before a judge alone,
    defence counsels cross-examination of Totten in this case was before a jury.
    Defence counsel was legitimately concerned about getting bogged down in numbers
    before the jury. So in his closing address he told the jury: I dont want to
    put everyone to sleep  I tend to get baffled by statistics ;

·

Defence counsels approach to cross-examining Totten yielded a
    number of useful concessions, some of which defence counsel relied on in his
    closing address and some of which the trial judge pointed out in his charge to
    the jury; and

·

Defence counsel knew from before the first trial that the
    reliability of Tottens data was an issue. However, twice he deliberately
    decided to avoid getting into the details of Tottens six studies. The defence
    now wants a third opportunity to cross-examine Totten and he should be denied
    that opportunity.

[138]

The Crowns position has merit, but I cannot accept it. As I have
    demonstrated, the fresh evidence was so cogent that it almost entirely
    undermines the reliability of what seemed to be compelling statistical evidence
    supporting Tottens opinion on the meaning of a teardrop tattoo. The fresh
    evidence is at a level of cogency that not merely diminishes the weight of
    Tottens evidence but serves to disqualify him from giving it.

[139]

Although I would order a new trial rather than enter an acquittal, to refuse
    to admit the fresh evidence because of a lack of due diligence would risk a
    miscarriage of justice. And it would risk a miscarriage of justice for a young
    man facing a life sentence with no eligibility for parole for 25 years. Because
    of the serious consequences for Abbey I think we should be reluctant before
    allowing the lack of due diligence to override such cogent fresh evidence.

[140]

There is another reason not to give effect to the defences lack of due
    diligence  and it is an important reason. Totten was the Crowns witness, a
    key witness for the Crown. Yet in
Gager
the Crown sought to impeach
    Tottens credibility and the reliability of his evidence on several matters
    that were relevant to his opinion in this trial. And then on this appeal the
    Crown made no attempt to contest the deficiencies, inaccuracies, and even
    falsehoods in Tottens trial testimony, as demonstrated by the fresh evidence.
    In saying this I intend no criticism whatsoever of Mr. Alvaro. He argued the
    Crowns position well with his usual candour and fairness. The same may be said
    for Mr. Harris and Mr. Pillays arguments on behalf of Abbey.

[141]

But the Crown is not an ordinary litigant. Its role is not to obtain a
    conviction, but to try to ensure a fair process and a just result. The Crown
    has impeached Totten, its own key witness, albeit in another proceeding, and
    yet by its silence in this proceeding must be taken not to have challenged the many
    serious problems in Tottens trial testimony shown by the fresh evidence. In
    these circumstances, it seems to me to be fundamentally unfair and unjust for
    the Crown to rely on Abbeys lack of due diligence to defeat his fresh evidence
    application.

[142]

I would allow
    Abbeys application to admit his fresh evidence.

4. Did the trial judge err by failing
    to instruct the jury not to consider Tottens evidence on the timing of
    obtaining a teardrop tattoo?

[143]

Although I conclude that Abbey is entitled to succeed on his appeal
    based on the fresh evidence, for the sake of completeness I will briefly
    address his argument on the jury charge.

[144]

The trial judges charge to the jury was impeccable. Still, Abbey
    contends the trial judge made one error. This contention rests on a footnote in
    Doherty J.A.s judgment in
Abbey #1
. At para. 63 of his reasons, in
    discussing the scope of an experts proposed opinion evidence, Doherty J.A.
    added the following footnote:

Note 6: Dr. Tottens
voir dire
evidence affords an
    example of the need to consider different parts of the proposed opinion
    evidence individually. Whatever may be said about the admissibility of Dr.
    Tottens opinion concerning the meaning of a teardrop tattoo, his evidence as
    to the timing of the inscription of the tattoo (para. 51) does not seem founded
    either in his research or his clinical experience, but rather seems a product
    of what Dr. Totten thought was common sense. It may be that this aspect of Dr.
    Tottens evidence would not be admissible even if his main opinion was
    admitted.

[145]

At trial Totten testified that typically a gang member who had killed a
    rival gang member would obtain a teardrop tattoo within six months of the
    killing. Abbey obtained his teardrop about four months after Peter was
    murdered. The defence not only did not object to this aspect of Tottens
    evidence, in the pre-charge conference the defence agreed with the Crown that
    Totten could testify about the timing of obtaining a teardrop tattoo.

[146]

In his charge the trial judge did not refer to Tottens evidence on
    timing. Again the defence did not object or ask for a specific instruction. Now
    on appeal, however, Abbey submits, consistent with Doherty J.A.s footnote,
    that the trial judge should have instructed the jury to ignore Tottens
    evidence about the timing of obtaining a teardrop tattoo. I do not accept Abbeys
    submission for four reasons.

[147]

First, Doherty J.A.s comment in the footnote was not mandatory. He left
    to the trial judge the decision whether to exclude the evidence on timing or at
    least instruct the jury not to consider it.

[148]

Second, on my reading of Tottens testimony (and not taking into account
    the reliability concerns brought to light by the fresh evidence), his evidence
    about timing did seem to have a basis in his clinical experience.

[149]

Third, Tottens evidence on timing was equivocal, as at least one part
    of it helped the defence. Totten testified that he would not expect a gang
    member to get a teardrop tattoo where the gang member finds out shortly after
    the murder that the person he killed was not a rival gang member. The defence
    argued to the jury that Abbey would have known within four months after the
    murder that Peter was not a member of the Galloway Boys. Thus relying on this
    aspect of Tottens evidence the defence submitted that Abbey did not obtain a
    teardrop tattoo to signify he had killed a rival gang member.

[150]

Fourth, even if the trial judge erred in not giving the instruction now
    asked for  and I do not concede that he did err  the error was minor and
    harmless. It was highly unlikely to have affected the verdict.

[151]

I would not give effect to this ground of appeal.

5. What is the appropriate
    remedy?

[152]

The choice is an acquittal or a new trial. Abbey submits that we ought
    to enter an acquittal. He has been in custody for nine years. And once Tottens
    evidence on a teardrop tattoo is excluded, the Crowns case rests principally
    on the dubious testimony of the three Malvern gang members, Sams, Burton and
    Williams.

[153]

I would not give effect to Abbeys submission. In my view the
    appropriate order is for another new trial, as unpalatable as that order may be
    over 13 years after the murder. Admittedly without Tottens evidence on the
    meaning of a teardrop tattoo, the Crowns case is not overly strong. But it is
    not wholly devoid of substance. The evidence of Sams, Burton and Williams, each
    implicating Abbey in the murder, remains. And I note as well, their evidence on
    their understanding of the meaning of a teardrop tattoo was, along with
    Tottens evidence, excluded at the first trial, yet held admissible by this
    courts 2009 judgment in
Abbey #1
, at para. 160. In the light of their
    evidence I cannot say that no reasonable jury, properly instructed, would
    convict Abbey.

[154]

The Crown is entitled to retry Abbey if it wishes to do so. The interests
    of Abbey must be taken into account, but so too must the interests of the
    family of the victim, and the public interest.

E.

conclusion

[155]

I would admit the fresh evidence, allow the appeal, set aside Abbeys
    conviction for first degree murder and order a new trial.

Released: D.D. August 4, 2017

John Laskin J.A.

I agree. Doherty J.A.

I agree. L.B. Roberts J.A.





[1]
See 2012 ONSC 1472, in which Clark J. provides his reasons for permitting
    Totten to testify on certain issues.



[2]

For an excellent summary of the development of the law from
Mohan
to
Abbey #1
to
White
    Burgess
see Lisa Dufraimont, Update on Admissibility of
    Expert Evidence, (paper presented to the Law Society of Upper Canada, Six
    Minute Criminal Lawyer 2016, April 9, 2016).



[3]
In setting out this test I have largely adopted Lisa
    Dufraimonts useful summary at (2015), 18 C.R. (7th) 312-313.



[4]

In
Abbey #1
, Doherty J.A.
    distinguished between the logical relevance of the evidence, which is a
    threshold requirement for admissibility, and legal relevance, which trial
    judges must consider in their gatekeeper role. By legally relevant evidence
    Doherty J.A. means evidence that is sufficiently probative to justify its
    admission. In
White Burgess
,
Cromwell J. referred expressly to logical relevance as a threshold
    requirement, but only relevance, not legal relevance, at the gatekeeper stage.
    Nonetheless, as confining relevance to logical relevance at the gatekeeper
    stage would be redundant, and as Cromwell J. said at para. 22 he would adopt
    the approach in
Abbey #1
with only minor
    adjustments, I conclude that at the gatekeeper stage he meant legal relevance.
    I acknowledge that my conclusion introduces a small measure of duplication
    because the reliability of the evidence is a key component of legal relevance
    and Cromwell J. lists reliability as a separate factor.



[5]

At para. 54, Cromwell J. lists these four factors but suggests
    they are not exhaustive.



[6]
The report states that the sample size was 300 gang members. In his testimony
    in
Gager
, Totten clarified that 300 was a typographical error and the
    correct number is 290.



[7]

Totten was not clear whether all 97 were male or whether some
    were female.



[8]
Under this exception four requirements must be met
    for the document to be admissible without proof:

·

The document must be made by a
    public official;

·

The public official must have made
    the document in discharging a public duty or function;

·

The document must have been made
    with the intention that it be a permanent record; and

·

The document must be available for
    public inspection.

The
    rationale for the exception is that we presume the accuracy of the public
    document because we assume public officials will act in accordance with their
    duty. Also requiring public officials to testify routinely about public
    documents would cause considerable inconvenience.

The
    Statistics Canada data meet the four requirements for the public documents
    exception to the rule against hearsay. Section 3(e) of the
St
atistics
    Act
, R.S.C. 1985, c. S-19 requires Statistics Canada to promote and
    develop integrated social and economic statistics pertaining to the whole of
    Canada and to each of the provinces. Section 26 requires the courts to furnish
    criminal statistics to the government. Presumably these statistics create a
    permanent record. And the statistics are publicly accessible on the internet.


