(c) The second trial
[ 16] The Crown appealed Abbey’s acquittal and its appeal was
allowed: see R. v. Abbey (2009), 97 O.R. (3d) 330,  O.J. No.
3534, 2009 ONCA 624 (“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,
S., B. and W., implicating Abbey, and the evidence about the
meaning of a teardrop tattoo.
( i) The evidence of S., B. and W. pointing to Abbey as
[ 19] S., B. and W. gave potentially compelling evidence against
[ 20] S. testified that during the morning of the murder he was
in B.’s car and they were driving in the Morningside Avenue and
Sheppard Avenue East area when they saw a girl, C.A., whom
they recognized, together with a male wearing a hood and a
bandana. S. 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 C.A. 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. S. 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] B. gave a different account of what happened the day
of the shooting. On his version, Abbey was with him and S.
from the outset. B. was driving; S. was in the front passenger
seat; and Abbey was in the back seat. At the intersection of