R. v. Abbey (W.N.),

• Jurisdiction: Ontario
• Judge: Doherty, MacPherson and Lang, JJ.A.
• Neutral Citation: 2009 ONCA 624
• Citation: 2009 ONCA 624,(2009), 254 O.A.C. 9 (CA),97 OR (3d) 330,246 CCC (3d) 301,68 CR (6th) 201,[2009] CarswellOnt 5008,[2009] OJ No 3534 (QL),254 OAC 9,(2009), 254 OAC 9 (CA),97 O.R. (3d) 330,254 O.A.C. 9,[2009] O.J. No 3534 (QL)
• Date: 27 August 2009
• Court: Court of Appeal (Ontario)

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. AU.038

Her Majesty The Queen (appellant) v. Warren Abbey (respondent)

(C47020; 2009 ONCA 624)

Indexed As: R. v. Abbey (W.N.)

Ontario Court of Appeal

Doherty, MacPherson and Lang, JJ.A.

August 27, 2009.

Summary:

An accused gang member charged with first degree murder of a rival gang member was found not guilty by a jury. The Crown appealed, submitting that the trial judge erred in excluding evidence that the accused had a teardrop tattoo inscribed on his face several months after the killing. The Crown alleged that the tattoo was evidence from which the jury could infer that the accused killed a rival gang member. The Crown proposed to call evidence from three gang members, and an expert on Toronto street gangs, to explain the meaning of the teardrop tattoo in the urban gang culture. The trial judge refused to allow the witnesses to testify and the evidence was excluded.

The Ontario Court of Appeal allowed the appeal, set aside the acquittal and ordered a new trial. The trial judge erred in excluding the expert's evidence insofar as it identified potential meanings of the teardrop tattoo within the urban street gang culture (i.e., not testifying that it had a specific meaning attributable to the accused). The three gang members should have been allowed to testify as to the meaning of the tattoo within the culture that they shared with the accused. Further, one of the gang members should have been permitted to testify respecting comments made to him by the accused concerning the accused's tattoo prior to making an alleged confession. Had that evidence been permitted, the jury may well have inferred from the accused's conduct that the tattoo on his face was related to the murder.

Criminal Law - Topic 4957.1

Appeals - Indictable offences - New trials - Grounds - Failure to consider evidence - [See Evidence - Topic 7063.1 ].

Evidence - Topic 1126

Relevant facts - Relevance and materiality - Relevance of evidence offered - Logical relevance and legal relevance distinguished - The Ontario Court of Appeal distinguished between logical relevance and legal relevance - The court stated that "relevance can have two very different meanings in the evidentiary context. Relevance can refer to logical relevance, a requirement that the evidence have a tendency as a matter of human experience and logic to make the existence or non-existence of a fact in issue more or less likely than it would be without that evidence ... Given this meaning, relevance sets a low threshold for admissibility and reflects the inclusionary bias of our evidentiary rules. ... Relevance can also refer to a requirement that evidence be not only logically relevant to a fact in issue, but also sufficiently probative to justify its admission despite the prejudice that may flow from its admission. This meaning of relevance is described as legal relevance and involves a limited weighing of the costs and benefits associated with admitting evidence that is undoubtedly logically relevant." - To be legally relevant "the evidence must not only be logically relevant but must be sufficiently probative to justify admission" - See paragraphs 82 to 83.

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - The Ontario Court of Appeal stated that "it is fundamental to the adversary process that witnesses testify to what they saw, heard, felt or did, and the trier of fact, using that evidentiary raw material, determines the facts. Expert opinion evidence is different. Experts take information accumulated from their own work and experience, combine it with evidence offered by other witnesses, and present an opinion as to a factual inference that should be drawn from that material. The trier of fact must then decide whether to accept or reject the expert's opinion as to the appropriate factual inference. Expert evidence has the real potential to swallow whole the fact-finding function of the court, especially in jury cases. Consequently, expert opinion evidence is presumptively inadmissible. The party tendering the evidence must establish its admissibility on the balance of probabilities." - See paragraph 71.

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - The Ontario Court of Appeal stated that "the four criteria controlling the admissibility of expert opinion evidence identified in Mohan ... are: relevance; necessity in assisting the trier of fact; the absence of any exclusionary rule; and a properly qualified expert. Using these criteria, I suggest a two-step process for determining admissibility. First, the party proffering the evidence must demonstrate the existence of certain preconditions to the admissibility of expert evidence [the proposed opinion must relate to a subject matter that is properly the subject of expert opinion evidence; the witness must be qualified to give the opinion; the proposed opinion must not run afoul of any exclusionary rule apart entirely from the expert opinion rule; and the proposed opinion must be logically relevant to a material issue]. Second, the trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence. This 'gatekeeper' component of the admissibility inquiry lies at the heart of the present evidentiary regime governing the admissibility of expert opinion evidence ... In suggesting a two-step approach, I mean only to facilitate the admissibility analysis and the application of the Mohan criteria." - See paragraphs 75 to 77, 80.

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - [See Evidence - Topic 7063.1 ].

Evidence - Topic 7000.5

Opinion evidence - Expert evidence - General - Nature and scope of - The Ontario Court of Appeal stated that "before deciding admissibility, a trial judge must determine the nature and scope of the proposed expert evidence. In doing so, the trial judge sets not only the boundaries of the proposed expert evidence but also, if necessary, the language in which the expert's opinion may be proffered so as to minimize any potential harm to the trial process. A cautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted, are essential. The case law demonstrates that overreaching by expert witnesses is probably the most common fault leading to reversals on appeal. ... At the conclusion of the voir dire, the trial judge must identify with exactitude the scope of the proposed opinion that may be admissible. He or she will also decide whether certain terminology used by the expert is unnecessary to the opinion and potentially misleading ... Admissibility is not an all or nothing proposition. Nor is the trial judge limited to either accepting or rejecting the opinion evidence as tendered by one party or the other. The trial judge may admit part of the proffered testimony, modify the nature or scope of the proposed opinion, or edit the language used to form that opinion." - See paragraphs 62 to 63.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - An expert proposed to give expert evidence of a cultural matter (potential reasons for a member of an urban gang culture obtaining a tear drop tattoo) - The Ontario Court of Appeal stated that "as with scientifically based opinion evidence, there is no closed list of the factors relevant to the reliability of an opinion like that offered by [the expert]. I would suggest, however, that the following are some questions that may be relevant to the reliability inquiry where an opinion like that offered by [the expert] is put forward: To what extent is the field in which the opinion is offered a recognized discipline, profession or area of specialized training? To what extent is the work within that field subject to quality assurance measures and appropriate independent review by others in the field? What are the particular expert's qualifications within that discipline, profession or area of specialized training? To the extent that the opinion rests on data accumulated through various means such as interviews, is the data accurately recorded, stored and available? To what extent are the reasoning processes underlying the opinion and the methods used to gather the relevant information clearly explained by the witness and susceptible to critical examination by a jury? To what extent has the expert arrived at his or her opinion using methodologies accepted by those working in the particular field in which the opinion is advanced? To what extent do the accepted methodologies promote and enhance the reliability of the information gathered and relied on by the expert? To what extent has the witness, in advancing the opinion, honoured the boundaries and limits of the discipline from which his or her expertise arises? To what extent is the proffered opinion based on data and other information gathered independently of the specific case or, more broadly, the litigation process?" - See paragraph 119.

Evidence - Topic 7018

Opinion evidence - Expert evidence - General - Special knowledge and experience (incl. what constitutes) - [See Evidence - Topic 7002 ].

Evidence - Topic 7063.1

Opinion evidence - Expert evidence - Particular matters - Gang membership or culture - An accused gang member charged with first degree murder of a rival gang member was found not guilty by a jury - The accused had a teardrop tattoo on his face several months after the killing - The Crown alleged that the tattoo was evidence from which the jury could infer that the accused killed a rival gang member - The Crown proposed to call evidence from an expert on Toronto street gangs to explain the potential meanings of the teardrop tattoo in the urban gang culture, one of which was to signify the killing of a rival gang member - The trial judge refused to allow the expert to testify - The Ontario Court of Appeal ordered a new trial - The trial judge excluded the testimony on the ground that the expert would testify as to the specific reason the accused obtained the tattoo - It was inadmissible for that purpose, but the trial judge should have accepted the Crown's alternate argument that the evidence was admissible for the limited purpose of identifying potential meanings of the teardrop tattoo within the urban street gang culture - Had that evidence been permitted, the jury may well have inferred from the accused's conduct that the tattoo on his face was related to the murder - The trial judge mischaracterized the evidence as "novel scientific theory" subject to scientific validation - The evidence was based on knowledge acquired about a particular culture through years of academic study, interviewing over 300 gang members and reviewing relevant literature - The issue was not whether the evidence was scientifically valid, which could never be established, but whether the expert's research and experiences had permitted him to develop a specialized knowledge about gang culture and symbols, making it sufficiently reliable to justify placing his opinion as to potential meanings of the teardrop tattoo before the jury - The expert had the specialized knowledge and his evidence was reliable - See paragraphs 1 to 149.

Cases Noticed:

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, refd to. [para. 60].

R. v. Ranger (R.) (2003), 176 O.A.C. 226; 178 C.C.C.(3d) 375; 67 O.R.(3d) 1 (C.A.), refd to. [para. 62].

R. v. Klymchuk (K.) (2005), 205 O.A.C. 57; 203 C.C.C.(3d) 341 (C.A.), refd to. [para. 62].

R. v. A.K. and N.K. (1999), 125 O.A.C. 1; 45 O.R.(3d) 641 (C.A.), refd to. [para. 62].

R. v. Llorenz (A.G.) (2000), 132 O.A.C. 201; 145 C.C.C.(3d) 535 (C.A.), refd to. [para. 62].

R. v. P.G. (2009), 244 O.A.C. 316; 242 C.C.C.(3d) 558 (C.A.), refd to. [para. 63].

R. v. Wilson (2002), 166 C.C.C.(3d) 294 (Ont. Sup. Ct.), refd to. [para. 63].

United States of America v. Mejia (2008), 545 F.3d 179 (2nd Cir.), refd to. [para. 65].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 67].

R. v. McIntosh (O.) and McCarthy (P.) (1997), 102 O.A.C. 210; 35 O.R.(3d) 97 (C.A.), leave to appeal refused [1998] 1 S.C.R. xii; 227 N.R. 279; 111 O.A.C. 39, refd to. [para. 72].

R. v. McCarthy (P.) - see R. v. McIntosh (O.) and McCarthy (P.).

R. v. Olscamp (1994), 95 C.C.C.(3d) 466 (Ont. Gen. Div.), refd to. [para. 72].

R. v. Lance (E.A.) (1998), 114 O.A.C. 234; 130 C.C.C.(3d) 438 (C.A.), refd to. [para. 72].

R. v. Clark (2004), 181 O.A.C. 276; 69 O.R.(3d) 321 (C.A.), refd to. [para. 72].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43, refd to. [para. 76].

R. v. Trochym (S.J.), [2007] 1 S.C.R. 239; 357 N.R. 201; 221 O.A.C. 281; 216 C.C.C.(3d) 225; 2007 SCC 6, refd to. [para. 76].

R. v. Osmar (T.) (2007), 220 O.A.C. 186; 84 O.R.(3d) 321 (C.A.), leave to appeal refused (2007), 374 N.R. 396; 241 O.A.C. 397; 85 O.R.(3d) xviii (S.C.C.), refd to. [para. 76].

R. v. Clarke (H.E.) (1998), 112 O.A.C. 233; 129 C.C.C.(3d) 1 (C.A.), refd to. [para. 82].

R. v. Dimitrov (D.) (2003), 180 O.A.C. 338; 68 O.R.(3d) 641 (C.A.), leave to appeal refused (2004), 330 N.R. 198; 196 O.A.C. 398; 70 O.R.(3d) xvii (S.C.C.), refd to. [para. 84].

Daubert v. Merrell Dow Pharmaceuticals Inc. (1993), 509 U.S. 579 (Sup. Ct.), refd to. [para. 88].

R. v. Batista (2008), 238 C.C.C.(3d) 97; 2008 ONCA 804, refd to. [para. 93].

R. v. Nahar (D.S.) (2004), 193 B.C.A.C. 217; 316 W.A.C. 217; 181 C.C.C.(3d) 449 (C.A.), refd to. [para. 94].

R. v. Bonisteel (R.) (2008), 259 B.C.A.C. 114; 436 W.A.C. 114; 236 C.C.C.(3d) 170; 2008 BCCA 344, refd to. [para. 95].

R. v. Bernardo (1995), 42 C.R.(4th) 96 (Ont. Gen. Div.), refd to. [para. 100].

R. v. D.S.F. (1999), 118 O.A.C. 272; 132 C.C.C.(3d) 97 (Ont. C.A.), refd to. [para. 100].

Kumho Tire Co. v. Carmichael (1999), 526 U.S. 137, refd to. [para. 110].

United States of America v. Hankey (2000), 203 F.3d 1160 (9th Cir.), refd to. [para. 112].

R. v. Hiscock (H.J.), [2002] B.C.T.C. 1772; 2002 BCSC 1772, refd to. [para. 113].

R. v. H.J.H. - see R. v. Hiscock (H.J.).

R. v. Grant, [2005] O.J. No. 5891 (Sup. Ct.), refd to. [para. 113].

R. v. Lindsay, [2004] O.J. No. 4097 (Sup. Ct.), refd to. [para. 113].

Saint John (City) v. Irving Oil Co., [1966] S.C.R. 581, refd to. [para. 149].

R. v. S.A.B. et al. (2003), 311 N.R. 1; 339 A.R. 1; 312 W.A.C. 1; 178 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 149].

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 207 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 174].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 174].

Authors and Works Noticed:

Archibald, Todd L., and Echlin, Randall Scott, Annual Review of Civil Litigation (2008), pp. 182 to 188 [para. 87, footnote 8].

Goudge Report - see Ontario, Report of Inquiry into Pediatric Forensic Pathology in Ontario, Report: Policy and Recommendations.

Kaufman Report - see Ontario, Attorney General Report, The Commission on Proceedings Involving Guy Paul Morin.

Kaye, David H., Bernstein, David E., and Mnookin, Jennifer L., The New Wigmore, A Treatise on Evidence: Expert Evidence (2004), para. 9.3.4 [para. 117].

Mark, Melvin M., Social Science Evidence in the Courtroom: Daubert and Beyond? (1999), 5 Psychol. Pub. Pol'y & L. 175, p. 187, fn. 7 [para. 68].

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed. 2009) (Looseleaf Update), paras. 12:30.10 [paras. 71, 72]; 12:30.20.30 [para. 88].

Ontario, Attorney General Report, The Commission on Proceedings Involving Guy Paul Morin (Kaufman Report) (1998), vol. 1, pp. 311 to 324 [para. 72].

Ontario, Report of Inquiry into Pediatric Forensic Pathology in Ontario, Report: Policy and Recommendations (Goudge Report) (2008), vol. 3, pp. 493 [para. 115]; 499, 500 [para. 64, footnote 7].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (5th Ed. 2008), pp. 30 to 35 [para. 82]; 184, 193 [para. 71]; 198, 199 [para. 83]; 209 [para. 68].

Paciocco, David M., Context, Culture and the Law of Expert Evidence (2001), 24 Adv. Q. 42, p. 57 [para. 114, footnote 10].

Paciocco, David M., Coping with Expert Evidence About Human Behaviour (1999), 25 Queen's L.J. 305, pp. 307, 308 [para. 72].

Paciocco, David M., Taking a "Goudge" out of Bluster and Blarney: an "Evidence-Based Approach" to Expert Testimony (2009), 13 Can. Crim. L.R. 135, pp. 148, 149 [para. 114, footnote 10]; 150 to 153 [para. 87, footnote 8].

Pratte, Guy, Effendi, Nadia, and Brusse, Jennifer, Experts in Civil Litigation: A Retrospective on Their Role and Independence with a View to Possible Reforms, in Archibald, Todd L., and Echlin, Randall Scott, Annual Review of Civil Litigation (2008), pp. 182 to 188 [para. 87, footnote 8].

Sales, Bruce Denis., and Shuman, Daniel W., Experts in Court Reconciling Law, Science and Professional Knowledge (2005), generally [para. 88]; pp. 74, 75 [para. 108].

Counsel:

Randy Schwartz, for the appellant;

Christopher Hicks and Catriona Verner, for the respondent.

This appeal was heard on January 13-14, 2009, before Doherty, MacPherson and Lang, JJ.A., of the Ontario Court of Appeal.

The judgment of the court was delivered by Doherty, J.A., and released on August 27, 2009.