assessed in the context of the particular type of decision-making
involved and all relevant factors’”, as Stratas J.A. observed in
Re: Sound v. Canadian Association of Broadcasters,  F.C.J.
No. 646, 2017 FCA 138, 148 C.P.R. (4th) 91, at para. 34, citing
several Supreme Court decisions. It is one thing to defer to an
educator on educational matters, but something else to defer to
an educator on constitutional matters.
Her Majesty the Queen v. Abbey
[Indexed as: R. v. Abbey]
2017 ONCA 640
Court of Appeal for Ontario, Doherty, Laskin and L.B. Roberts JJ.A.
August 4, 2017
Criminal law — Appeal — Fresh evidence on appeal — Expert witness
giving evidence at murder trial about meaning of teardrop tattoo in
gang culture — Accused permitted to adduce fresh evidence on appeal
from conviction that witness’ trial evidence was unreliable and unsupported by studies on which he claimed to have relied — Appeal allowed
and new trial ordered.
Criminal law — Evidence — Expert evidence — Expert witness giving
evidence at murder trial about meaning of teardrop tattoo in gang culture — Accused permitted to adduce fresh evidence on appeal from
conviction that witness’ trial evidence was unreliable and unsupported
by studies on which he claimed to have relied — Appeal allowed and
new trial ordered.
The accused was charged with first degree murder. The main issue at trial was
the identity of the murderer. The Crown’s theory was that the accused, a gang
member, killed the deceased in the mistaken belief that he was a member of a
rival gang. Three fellow gang members implicated the accused, but they all
obtained significant benefits as a result. The trial judge at the accused’s first trial
ruled that T, the Crown’s expert on gang culture, could not give an opinion on the
meaning of a teardrop tattoo which the accused had obtained four months after
the murder and that the three fellow gang members could not testify as to their
understanding of what the teardrop tattoo meant. The accused was acquitted.
The Court of Appeal allowed the appeal on the basis that the trial judge erred in
not admitting the teardrop tattoo evidence. A new trial was ordered. At the second trial, T 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. He
claimed that between 1995 and 2005, he conducted six studies on young gang
members, that he studied a total of 290 gang members, that 97 of those gang
members had been convicted of a homicide, that of the 97, 71 had teardrop
tattoos, and that each of the 71 told T that he had obtained a teardrop tattoo to
signify that he had killed a rival gang member. The accused was convicted.