Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Criminal law – Evidence – Admissibility – Expert opinion evidence – Hearsay – Whether the test for allowing expert evidence is the test enunciated in R. v. Mohan, [1994] 2 S.C.R. 9, or the new two stage test set out by the Court of Appeal for Ontario – Whether it is proper to admit qualitative versus quantitative expert evidence, and hearsay within qualitative expert evidence, that is not subject to error rates or scientific methodology – Whether an expert may rely on otherwise inadmissible hearsay without independent proof.

In 2004, the Malvern and the Galloway Boys, two street gangs in Scarborough Ontario, were engaged in a turf war. Any sighting of a Galloway Boy in Malvern territory prompted a potentially fatal reaction. The applicant was accused of fatally shooting Simeon Peter, a Scarborough resident. The Crown argued that the applicant, a Malvern associate, mistakenly believed that Mr. Peter was a Galloway Boy who had robbed him some months before and he shot him both for revenge and because he was in Malvern territory. Four or five months after the shooting, the applicant had a teardrop tattoo inscribed on his face. The Crown's theory is that a teardrop tattoo on the face of a young male member of an urban street gang signifies only one of three things: 1) the death of a fellow gang member or a family member; 2) that the bearer has been incarcerated in a correctional facility for a year; or 3) that the bearer has murdered a rival gang member. The only option for the applicant would be to signify a rival gang member's murder. Hearings were held to determine whether to admit evidence as to the meaning of a teardrop tattoo from three Malvern gang members, a police officer with experience with gangs, and from Dr. Totten who is a sociologist agreed to be an expert in the culture of Canadian street gangs.