He appealed. After the accused was convicted, the defence in an unrelated
murder trial proposed to call T as an expert witness on street gangs. The Crown
objected and cross-examined T on a voir dire about discrepancies between the
opinion he stated and the data on which it purported to be based. While the trial
judge in that case found that T should be qualified as an expert witness, he was
scathing of T and his proposed opinion evidence, and the defence elected not to
call him. Based largely on the Crown’s impeachment of T in the unrelated murder trial, the accused in this case sought to adduce fresh evidence on appeal that
called into question the reliability of T’s trial evidence.
Held, the fresh evidence should be admitted and the appeal should be allowed.
The proposed fresh evidence indicated that T misrepresented his sample sizes
(his studies were based on, at most, 222 gang members, not 290), which called
into question his other figures, such as the 97 who committed a homicide and the
71 who wore a teardrop tattoo; the latter figures were in fact unsupported by his
studies; he made other misrepresentations about his methodology; and the
underlying interview data on the meaning of teardrop tattoos was no longer
available because he claimed to have destroyed it. The proposed fresh evidence
was sufficiently cogent that, if it had been put before the trial judge, he would
have exercised his discretion and ruled that T’s evidence about the meaning of
the teardrop tattoo could not go to the jury because of its unreliability. Under the
White Burgess test for the admissibility of expert evidence, “reliability” is a factor
that the trial judge must consider at the gatekeeping function. Reliability is a key
component of the probative value of evidence and thus also encompassed in the
factor of “legal relevance”. The accused argued that the fresh evidence also established that T was biased and that his evidence should have been excluded on that
basis. It is a rare case in which an expert’s evidence will fail the threshold
requirement of being impartial and unbiased and this is not one of those cases.
The record does not justify the conclusion that T’s evidence was fabricated or concocted and T has not had an opportunity to explain some aspects of the fresh evidence now relied upon. If the Crown had been precluded from leading that
evidence, it could reasonably be expected that the verdict would have been different. The case against the accused was not overly strong. The accused was acquitted at his first trial, in the absence of the tattoo evidence. T had impressive
academic, research and clinical credentials, and claimed to have special access to
the secret world of street gangs and gang symbology. His evidence implicating
the accused would likely have significantly influenced the jury. Defence counsel’s
failure to adduce the fresh evidence at trial was not a bar to its admission on
appeal. The fresh evidence was so cogent that to refuse to admit it because of
a lack of due diligence would risk a miscarriage of justice.
Although the Crown’s case is not overly strong once T’s evidence is excluded,
there remains the evidence of the three gang witnesses who did implicate the
accused in the murder. They also testified about the meaning of a teardrop tattoo.
It cannot be said that a conviction based on the remaining evidence would be
unreasonable. The accused was entitled to succeed on the appeal based on the
fresh evidence but not to a verdict of acquittal. A new trial was ordered.
Truscott (Re),  O.J. No. 3221, 2007 ONCA 575, 226 O.A.C. 200,
225 C.C.C. (3d) 321, 50 C.R. (6th) 1, 75 W.C.B. (2d) 479; White Burgess Langille
Inman v. Abbott and Haliburton Co.,  2 S.C.R. 182,  S.C.J. No. 23,
2015 SCC 23, 18 C.R. (7th) 308, 470 N.R. 324, 383 D.L.R. (4th) 429, 67 C.P.C.
(7th) 73, 360 N.S.R. (2d) 1, 2015EXP-1385, J.E. 2015-767, EYB 2015-251384,
251 A.C. W.S. (3d) 610, apld