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Canada After Ontario Superior Court judge's slip-up, appeal seeks new trial for 'Mr. Guilty'

Shortly before a Toronto jury left the courtroom to start deliberations at Prinze Wilson's cocaine-trafficking trial last spring, Madam Justice Faye McWatt of the Ontario Superior Court stressed the need to respect his presumption of innocence.

"It is only defeated if, and when, Crown counsel has satisfied you beyond a reasonable doubt that Mr. Guilty – I'm sorry, that Mr. Wilson – is guilty of the crime charged," Judge McWatt said.

Mr. Guilty?

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No one but the jury knows whether the judge's faux pas played a role in the subsequent finding of guilt, because jurors cannot discuss deliberations. But the incident has certainly spawned one of the oddest appeals in recent years.

Later this year, the Ontario Court of Appeal will consider whether Mr. Wilson's jury was consciously or subconsciously influenced by the judicial gaffe.

To Crystal Tomusiak, Mr. Wilson's lawyer, the question is a no-brainer. "The trial judge erred in failing to order a mistrial or provide a curative instruction after mistakenly referring to the appellant as, 'Mr. Guilty,'" she said in a written submission to the court. "The conviction was unreasonable and against the weight of the evidence."

Ms. Tomusiak said that Mr. Wilson, a 26-year-old industrial firefighter who has no criminal record, has suffered enough. After being convicted and sentenced to almost two years of house arrest, she said, her client was fired from his job at Ontario Power Generation.

The Crown has yet to reveal its legal position. However, in the absence of obvious abuses of the court process, prosecutors typically argue to retain a jury verdict rather than mount a costly retrial.

But Roderick Lindsay, a Queen's University psychologist who specializes in courtroom testimony, said the remark clearly damaged Mr. Wilson's right to a fair trial.

"Once you put some information into someone's mind, you can't undo it," Prof. Lindsay said in an interview. "There is nothing the judge who made that slip could have said to convince them that she didn't think this guy was guilty."

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Prof. Lindsay said studies have repeatedly shown that people have little control over where their thoughts take them, nor do they tend to appreciate or clearly remember the factors that led to certain decisions. He said the Mr. Guilty case is reminiscent of an old joke involving a person who is asked not to think about pink elephants. The first thing they do is picture a pink elephant.

"You can't stop your mind from dealing with something that is introduced to it," Prof. Lindsay said. "People are terrible at ignoring that kind of thing. They just can't do it. They also cannot 'unremember' something."

In a similar case last year, a Toronto jury at a murder trial for Erika Mendieta complained that a prosecutor who was previously connected to the case had distracted them by sitting in the gallery, gesticulating and expressing visible disgust at Ms. Mendieta's testimony.

The judge ruled that the trial had been irretrievably damaged, discharged the jurors and continued hearing the case alone.

Mr. Wilson grew up in Toronto's impoverished Regent Park area, commencing an on-again, off-again cocaine habit when he was 12. He was arrested on Nov. 30, 2009, when police rushed into an alley stairwell in the belief that a drug deal was taking place. A friend of Mr. Wilson's ran up the stairs, but Mr. Wilson remained standing not far from a bag full of individually wrapped balls of crack cocaine.

Police alleged that Mr. Wilson wept, apologized and confessed that he had been selling small amounts of the drug to support his wife and infant daughter.

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In testimony at his trial, Mr. Wilson conceded the admission but claimed that he had concocted his confession to stop the police from beating him. He said that the man who fled dealt drugs for a living and had tossed the bag of cocaine in Mr. Wilson's direction when the police burst in.

Prof. Lindsay expressed sympathy for Judge McWatt and speculated that she may have been unaware whether or not she thought Mr. Wilson was guilty. But regardless of that, he said, any reasonable person would conclude that the judge believed he was.

"The judge tainted the jury," Prof. Lindsay said. "It's hard to say that they could have made a decision ignoring this."

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