in keeping with the detachment and objectivity properly to be
expected of an expert witness”. He also found Totten’s answers to
questions about the sample size in his studies [at para. 52] “both
evasive and troubling”. And he found Totten’s answers to questions on his methodology also “evasive”.
[ 40] Although Clark J. did qualify Totten to give opinion evidence, the defence, no doubt concerned by the Crown’s cross-examination on the voir dire, elected not to call him.
(e) Summary of the relevant chronology
[ 41] The following is a bullet point summary of the relevant
chronology and Totten’s role:
— 1995–2005: Totten authors six studies, which he relies on
for his opinion on the meaning of a teardrop tattoo.
— January 2004: Simeon Peter is murdered.
— 2007: The first Abbey trial is held. The Crown proposes to
call Totten to give expert evidence on the meaning of a teardrop tattoo, but the trial judge rules he is not qualified to
give that evidence because it is too unreliable. Abbey is
— 2009: This court allows the Crown’s appeal, sets aside
Abbey’s acquittal and orders a new trial. The court holds
that Totten is qualified to give opinion evidence on the
meaning of a teardrop tattoo.
— Winter 2011: The second Abbey trial is held. The Crown
calls Totten as its expert witness on the meaning of a teardrop tattoo. Abbey is convicted of first degree murder.
— February 2012: In R. v. Gager, an unrelated murder trial,
the defence proposes to call Totten as an expert witness on
street gangs. The Crown objects to the admissibility of his
evidence and cross-examines him on a voir dire. The defence
then decides not to call Totten.
— February 2017: Abbey’s appeal from his conviction is
C. The Legal Framework
[ 42] On this appeal, we must apply the test for the admission
of fresh evidence on appeal to the test for the admission of