[ 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, 1 which took place after Abbey’s second trial; eight
research studies on street gangs conducted by Totten, of which
six pre-dated 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
1 See  O.J. No. 1027, 2012 ONSC 1472 (S.C.J.), in which Clark J. provides his reasons for permitting Totten to testify on certain issues.