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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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) society's 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. 2005, c. 32, s. 15.

Court Information

Court of Appeal for Ontario

Date: 2017-08-04

Docket: C57750

Panel: Doherty, Laskin and Roberts JJ.A.

Between

Her Majesty the Queen

Respondent

and

Warren Nigel Abbey

Appellant

Counsel:

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 Crown's 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 Crown's evidence against Abbey at the two trials differed in one important way. At Abbey's first trial the trial judge ruled that the Crown's 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 Abbey's second trial – after this court overturned the trial judge's 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 Totten's statistical evidence. The fresh evidence has three components: the evidence of Totten elicited by the Crown in an unrelated murder trial, R. v. Gager, which took place after Abbey's second trial; eight research studies on street gangs conducted by Totten, of which six predated Abbey's two trials and formed the basis for Totten's 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 Abbey's two trials. Yet the defence chose not to adduce this evidence at either trial, and instead took a different approach to Totten's cross-examination. Thus, whether the fresh evidence is admissible turns on its cogency and on the effect of Abbey's failure to adduce it at trial.

[7] Abbey submits that the fresh evidence shows Totten's 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 Totten's evidence could reasonably be expected to have affected the verdict. The defence's 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 Abbey's 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 Abbey's application to introduce fresh evidence and his appeal be dismissed.

[9] Although this appeal turns almost entirely on Abbey's 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 Totten's 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 Totten's evidence reasonably be expected to have affected the verdict?

(3) Does the defence's 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 Totten's 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 Totten's 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 Totten's evidence inadmissible. And the absence of Totten's evidence would reasonably be expected to have affected the jury's verdict. I would admit the fresh evidence, allow Abbey's 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 Abbey's 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 Abbey's 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 Abbey's 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 Peter's 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 Crown's 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 Burton's 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 Abbey's 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 Abbey's 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 don't 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 it's me or not."

[24] The Crown then refreshed Burton's 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 Burton's 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 Abbey's 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 Crown's 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 Totten's evidence.

[33] By elimination then, Totten's evidence played a prominent role in the Crown's 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 Totten's 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 Crown's 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 Totten's evidence. He said "his evidence is of considerable importance in this case". And, although the trial judge cautioned the jury about accepting Totten's evidence, and reviewed details of the defence's 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 Totten's 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 Totten's qualifications on a voir dire into the admissibility of his evidence. And the Crown's cross-examination revealed weaknesses and discrepancies in Totten's opinions. The Crown's impeachment of Totten on the voir dire forms an important part of Abbey's fresh evidence, and indeed was the catalyst for his fresh evidence application. I will address the relevant details about the Crown's 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 Totten's 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 Totten's answers to questions about the sample size in his studies "both evasive and troubling". And he found Totten's 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 Crown's 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 Totten's 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 Crown's appeal, sets aside Abbey's 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: Abbey's 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, 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 court's 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 Crown's cross-examination of Totten are admissible under our rules of evidence for the purpose of impeachment. So too are Totten's studies on gangs. The Statistics Canada data are a relatively minor component of Abbey's 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 Crown's 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.

[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 judge's discretionary gatekeeper role. Each stage has a specific set of criteria.

[48] The test may be summarized as follows:

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 expert's 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,

b. Necessity,

c. Reliability, and

d. Absence of bias.

[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 Totten's 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 Totten's 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 judge's 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 judge's 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 Totten's 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 expert's lack of impartiality and independence and an expert's bias go to the admissibility of the expert's 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 expert's 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 Totten's 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 Totten's resume or curriculum vitae, his two reports for Abbey's trials and his evidence at the second trial on the meaning of a teardrop tattoo.

(a) Mark Totten's 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 Queen's 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) Totten's two reports for Abbey's 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] Totten's 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 Abbey's teardrop tattoo on his right cheek below the eye represents the fact that he killed a rival gang member, most likely in 2004".

[62] Totten's 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) Totten's evidence at the second trial

[63] In the light of this court's 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 Totten's opinion. Totten's 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 Totten's 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 Crown's cross-examination of Totten in Gager, Totten's research studies and a small amount of Statistics Canada data. The purpose of the fresh evidence is to impeach the credibility and reliability of Totten's statistical evidence, which was a critical component of his opinion on the meaning of a teardrop tattoo. The fresh evidence seeks to demonstrate that Totten's 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 Totten's studies, contrary to his sworn evidence in Gager, and misrepresentations in how he conducted his interviews.

[71] The Crown has not disputed any of Abbey's fresh evidence, other than to contend that the Statistics 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 Totten's 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 Totten's 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 Totten's sample size from 290 to 222. I agree with Abbey's 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 Totten's 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] Totten's 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 Totten's explanation "didn't 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 Totten's 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, 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 Totten's 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

[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 Totten's 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.). 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 Totten's 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 expert's opinion that relies on data collected through various means such as interviews – as Totten's 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 committee's guidelines.

[96] The Crown argues that we cannot rely on Totten's evidence about the destruction of his data because that issue arose for the first time in the Gager trial. In Abbey's first trial, the defence made no complaint about the lack of disclosure. I do not agree with the Crown's argument. The Gager trial took place about eleven months after Abbey's second trial, and it is thus likely that the state of Totten's raw data was the same at the time of both trials. Indeed if we accept Totten's 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, Totten's 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, Totten's 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 Totten's 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: "That's right". His answer undoubtedly was one of the most powerful pieces of evidence, if not the most powerful piece of evidence, supporting the Crown's 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 Totten's 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, Totten's 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 Totten's sworn testimony, raises further concerns about the credibility and reliability of his opinion evidence. Indeed, the duplication raises a legitimate concern that Totten's interview summaries are fabrications.

(vii) Interview discrepancies

[105] Totten's 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 Totten's 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 Totten's 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 Totten's 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 Totten's 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 Abbey's submission that the fresh evidence is sufficiently cogent that if it had been put before the trial judge he would have ruled Totten's 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 Totten's 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 Totten's evidence would be rendered inadmissible at the second gatekeeper stage because of bias.

[110] And I agree with the Crown's 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 Totten's opinion evidence inadmissible.

[111] The fundamental problem with Totten's 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 Totten's evidence could not go to the jury because of its unreliability.

[112] A trial judge's 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 evidence's 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 expert's] 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 Totten's 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, Totten's expert opinion fails to meet either of these criteria.

[117] First, Totten's 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 Totten's 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 Totten's 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 Totten's 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 court's examination because he said he destroyed them.

[119] In his article on the Goudge Report, "Taking a 'Goudge' 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 Totten's 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] Totten's 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 member's purpose in getting one, and again the underlying interview data to verify Totten's evidence are not available.

[121] The fresh evidence, in my view, shows that Totten's 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 Totten's 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 Totten's 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 Totten's 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 Totten's 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 Totten's 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 Totten's opinion, I see nothing unfair in taking into account that the many serious problems in both Totten's 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, Totten's opinion evidence on the meaning of a teardrop tattoo would have been held inadmissible.

2. Would the absence of Totten's 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 Totten's evidence. But I have concluded the fresh evidence is sufficiently cogent that if known by the trial judge Totten's proposed expert testimony would have been ruled inadmissible. And in my view, if the Crown had been precluded from leading Totten's 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 Totten's evidence and Abbey was acquitted. At the second trial, the Crown did lead Totten's evidence about the meaning of a teardrop tattoo and Abbey was convicted.

[128] Second, the rest of the Crown's 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, Totten's 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 Totten's 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 [Totten's] 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 Totten's evidence would therefore reasonably be expected to have affected the verdict at trial.

3. Does the defence's 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 Abbey's 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 defence's 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 Crown's 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 Abbey's 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 Abbey's 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 counsel's 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 don't want to put everyone to sleep … I tend to get baffled by statistics …";

• Defence counsel's 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 Totten's data was an issue. However, twice he deliberately decided to avoid getting into the details of Totten's six studies. The defence now wants a third opportunity to cross-examine Totten and he should be denied that opportunity.

[138] The Crown's 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 Totten's opinion on the meaning of a teardrop tattoo. The fresh evidence is at a level of cogency that not merely diminishes the weight of Totten's 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 defence's lack of due diligence – and it is an important reason. Totten was the Crown's witness, a key witness for the Crown. Yet in Gager the Crown sought to impeach Totten's 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 Totten's trial testimony, as demonstrated by the fresh evidence. In saying this I intend no criticism whatsoever of Mr. Alvaro. He argued the Crown's position well with his usual candour and fairness. The same may be said for Mr. Harris' and Mr. Pillay's 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 Totten's 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 Abbey's lack of due diligence to defeat his fresh evidence application.

[142] I would allow Abbey's application to admit his fresh evidence.

4. Did the trial judge err by failing to instruct the jury not to consider Totten's 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 judge's 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 expert's proposed opinion evidence, Doherty J.A. added the following footnote:

Note 6: Dr. Totten's 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. Totten's 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. Totten's 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 Totten's 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 Totten's 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 Totten's evidence about the timing of obtaining a teardrop tattoo. I do not accept Abbey's 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 Totten's 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, Totten's 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 Totten's 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 Totten's evidence on a teardrop tattoo is excluded, the Crown's case rests principally on the dubious testimony of the three Malvern gang members, Sams, Burton and Williams.

[153] I would not give effect to Abbey's 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 Totten's evidence on the meaning of a teardrop tattoo, the Crown's 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 Totten's evidence, excluded at the first trial, yet held admissible by this court's 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 Abbey's 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."