[ 68] The ages of the subjects studied ranged between 12 and
20. Most were male, but in a couple of the studies some of the
subjects were female. None of the studies was geared toward the
study of tattoos.
(d) The fresh evidence
( i) Introduction
[ 69] Abbey has filed as fresh evidence relevant portions of the
Crown’s cross-examination of Totten in Gager, Totten’s research
studies and a small amount of Statistics Canada data. The purpose of the fresh evidence is to impeach the credibility and reliability of Totten’s statistical evidence, which was a critical
component of his opinion on the meaning of a teardrop tattoo. The
fresh evidence seeks to demonstrate that Totten’s opinion is
replete with weaknesses, misrepresentations and even falsehoods.
[ 70] Specifically, the fresh evidence mainly seeks to undermine
the four key numbers that Totten said came from his six research
studies and which he relied on for his opinion: 290 gang members;
97 convicted of a homicide; 71 wore a teardrop tattoo; all 71
obtained a teardrop tattoo to signify the killing of a rival gang
member. In addition, the fresh evidence seeks to show duplication
in Totten’s studies, contrary to his sworn evidence in Gager, and
misrepresentations in how he conducted his interviews.
[ 71] The Crown has not disputed any of Abbey’s fresh evidence,
other than to contend that the Statistic Canada data are inadmissible because they are hearsay. The Crown has not filed any reply
material. And neither side sought leave to call Totten to give evidence on the fresh evidence application. Thus, for the purpose of
this appeal I treat as unchallenged any problems with the reliability of Totten’s opinion revealed by the fresh evidence.
( ii) 290 gang members
[ 72] Totten testified that the total number of gang members in
his six research studies was 290, broken down as follows:
— YSB Survey: 51
— Guys, Gangs and Girlfriend Abuse: 90
— Understanding Serious Youth Violence: 31
— When Children Kill: 9
— Youth Literacy and Violence Prevention Research Project: 84
— The Gays in the Gang: 25