(b) Totten’s two reports for Abbey’s trials
[ 60] Before the first trial, Totten delivered two reports. The
first is dated December 8, 2006 and is titled “Street Gangs and
the Significance of the Teardrop Tattoo”. The second is dated
January 3, 2007 and is titled “Street Gang Research Methodology and Implications for R. v. Abbey”. The Crown relied on these
two reports for the second Abbey trial. Totten did not produce a
separate or supplementary report for the second trial.
[ 61] Totten’s first report is relatively brief and it includes no statistical data on teardrop tattoos. Totten, however, does say in this
report that “[ i]t is common for young recruits to get teardrop tattoos to display that they have passed the test of murdering a rival
gang member” (emphasis in original). And he concludes his report
with the following opinion: “it is clear to me that Warren Abbey’s
teardrop tattoo on his right cheek below the eye represents the
fact that he killed a rival gang member, most likely in 2004”.
[ 62] Totten’s second report is lengthier and more detailed. In
it, he discusses his research methods and interview techniques.
And he focuses on the meaning of a teardrop tattoo to a gang
member, and the statistical data generated by his six studies,
which he relies on for his opinion. The meanings Totten ascribes
to a teardrop tattoo and his statistical data were replicated in
his evidence at trial, to which I now turn.
(c) Totten’s evidence at the second trial
[ 63] In the light of this court’s 2009 judgment, the trial judge
qualified Totten, without objection from the defence, to give
expert opinion evidence for the Crown “in relation to street gang
culture and symbology . . . in particular with respect to the
interpretation of tattoos and more particularly the teardrop
tattoo”. In giving his opinion, Totten said he relied on his clinical
experience over two decades, his research projects and his
review of the academic literature.
[ 64] His opinion on the meaning of a teardrop tattoo had two
branches: a qualitative branch and a quantitative branch. The
fresh evidence challenges the quantitative branch, not the qualitative branch. But the two branches are intertwined.
[ 65] First, the qualitative branch. Totten testified that a tear-
drop tattoo on the face of a young member of a street gang
means one of three things:
— the death of a family member of the wearer of the tattoo or
of a fellow gang member;