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 B. testified that when he asked
Abbey about his teardrop tattoo Abbey told him he had lost a
[ 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 [at para. 39] “sort of puffery” that
suggests “a degree of immodesty on the witness’ part that is not