Ontario court overturns HIV murder convictions, substitutes manslaughter verdicts
Ontario’s top court has overturned two first-degree murder convictions in the case of a man who did not disclose his HIV-positive status to sexual partners, though he remains a dangerous offender and sentenced to life.
Hamilton man Johnson Aziga was found guilty in 2009 of the two counts of murder – believed to be the first convictions of their kind in Canada at the time – as well as 10 counts of aggravated sexual assault and one count of attempted aggravated sexual assault.
The court later declared Aziga a dangerous offender, which comes with an indefinite sentence.
Aziga appealed his convictions and sentence, and in a decision released Tuesday, the Court of Appeal for Ontario overturned the murder convictions and substituted them with two manslaughter verdicts due to incorrect jury instructions about intent by the trial judge. The court also set aside two aggravated assault convictions.
The three-judge Appeal Court panel wrote that the dangerous offender designation should stand, and that Aziga’s sentences for manslaughter should still be life because of the gravity of his offences.
“The illegal conduct that caused the death of (two victims) was reprehensible,” the court said in its decision.
“Mr. Aziga deceived these women for his own sexual gratification as part of a repeated pattern of conduct, being fully aware that he was putting their lives and health at serious risk, after refusing to take measures to reduce the danger he posed because of concerns for his own health.”
Aziga learned in 1996 that he was HIV-positive and was repeatedly counselled at an immunology clinic about the risk of transmission through unprotected sex and the risks of AIDS, the court said. He took medication to maintain his own health but declined antiretroviral therapy to reduce his contagiousness due to the “bulky” pills, potential side effects and confidentiality concerns, the court said.
He was ordered in 2002 under the Health Protection and Promotion Act to refrain from unprotected sex without disclosing his HIV status to his partner but repeatedly breached it, the court said. In 2003 he was served with a court order with essentially the same conditions.
Between 2000 and 2002 he had unprotected sex with multiple women without disclosing his HIV status, the decision said. Many of them were HIV positive at the time of Aziga’s trial, and two women had died.
“These women suffered horrible and despairing deaths because of his deplorable, self-regarding behaviour,” the Appeal Court wrote.
“A life sentence is fit and required in the circumstances of both offences to express denunciation and deterrence, even bearing in mind the principles of restraint that apply in criminal sentencing.”
Aziga had started antiretroviral therapy after his arrest and by the time of his sentencing his viral load was undetectable, but at the dangerous offender hearing, the judge did not believe Aziga would necessarily continue the therapy or use condoms in the future.
Aziga argued that his convictions should be set aside because they are based on outdated science of transmission risk. But the Appeal Court noted that Aziga had an “unsuppressed” and moderately infectious viral load at the time of the offences.
Aziga, who is originally from Uganda, also argued that his convictions were based on systemic racism and HIV stigma, but the court said it found no evidence to support that. As well, Aziga argued he had ineffective assistance from counsel at his trial, but the Appeal Court dismissed those grounds too.
The Appeal Court said it didn’t see a reason to overturn the dangerous offender designation.
“In explaining this finding, the trial judge cited Mr. Aziga’s ‘multi-year history of deception,’ his repetitive behaviour, his disregard of court orders, his lack of remorse and his defensive attitude, and the ease of opportunity to reoffend,” the Appeal Court said.
Johnson Aziga appeal may lead to downgraded conviction, parole eligibility for Hamilton ‘HIV killer’
Hamilton man was first Canadian to be convicted for first-degree murder for spreading HIV
Johnson Aziga, the first Canadian convicted for first-degree murder for fatally infecting sexual partners with HIV, may see his conviction overturned and reduced to manslaughter more than 13 years after he was found guilty.
If that is the outcome of a hearing at the Court of Appeal for Ontario on Nov. 23 and 24, Aziga would be eligible to apply for parole immediately, rather than waiting until 2030 to apply.
In a factum submitted to the court, a Crown prosecutor recommends the downgraded conviction.
But the Crown will also argue that if the appeal court instead orders a new trial for Aziga, prosecutors will once more pursue first-degree murder convictions.
It was Aug. 30, 2003, that Aziga, then 47, was arrested by Hamilton police outside his Bay Street North townhouse. He threw his keys at a uniformed officer in anger.
Police executed search warrants at a Ministry of Health address in Toronto where blood samples of Aziga and some of his victims were stored. In February 2005, Aziga was charged with two counts of first-degree murder, ten counts of aggravated sexual assault, and one count of attempted aggravated sexual assault.
In court, a research scientist with the Public Health Agency of Canada’s national HIV laboratory testified that the victims shared the same “Clade A” strain of HIV as Aziga; rare in Canada, but considered endemic in Uganda, the country from which Aziga immigrated with refugee status in 1984 at about 28 years old.
In April 2009, after a protracted six-month trial, the “HIV killer,” as Aziga was then called in media coverage, was convicted on all the counts by a jury of nine men and three women.
Soon after his conviction, he was interviewed briefly by The Spectator at Hamilton-Wentworth Detention Centre, where he said lies were told about him in court and that media coverage was racist.
“The stories were racist, always saying I am from Uganda,” he said. “I’ve lived in this country for 25 years.”
He grew angry when the reporter asked how he felt about the victims.
“I am a human being, I have a heart,” he said, adding: “I came from Africa, where people were dying, and you want to ask me about this?”
Aziga worked as a research analyst with the Ontario Ministry of the Attorney General and been diagnosed in 1996 with HIV (human immunodeficiency virus), the virus can cause AIDS (acquired immunodeficiency syndrome.)
Aziga was initially charged with two counts of aggravated sexual assault for having infected two women with HIV. The women, whose identities are subject to a court-ordered publication ban, were 48 and 29 years-old.
Hamilton police detectives Troy Ashbaugh and Kelly Rees continued interviewing victims, ultimately recording deathbed video statements from two women who had intimate relationships with Aziga. The women said Aziga never disclosed that he was HIV-positive.
In 2011, Aziga was designated a dangerous offender by the court, meaning he would remain in prison for an indeterminate length of time. The judge ruled that Aziga “represents a substantial risk to the community. His past conduct is the best predictor of future conduct … he has little insight into his offending behaviour.”
At the dangerous offender hearing, The Spectator reported that Aziga asked the court to send him to Uganda or Kenya to serve his life sentence. The judge said that was up to the Parole Board of Canada. Aziga is currently incarcerated at the Bath Institution in Kingston, a medium-security facility.
As for the upcoming appeal hearing at Osgoode Hall in Toronto, Aziga is choosing to represent himself.
The downgraded conviction to manslaughter proposed by the Crown is shared by an amicus — an individual appointed to assist the court essentially on behalf of the accused, although not acting as a defence counsel.
The amicus, Ingrid Grant, told The Spectator that Aziga may well disagree with the recommendation, and instead argue he should be acquitted on all charges, and demand a new trial.
“Although I don’t know it’s in his best interests to risk getting convicted for murder again,” she said.
It is unusual for an appeal to be heard so many years after a first-degree murder conviction.
Aziga filed his appeal soon after the trial ended, and Grant said a date had been set for a hearing in 2017, but it was adjourned. She cited “procedural complexities” due to Aziga’s self-representation as the reason for the delays.
He previously filed an application to the court for “ineffective assistance of counsel” with his case. He elected to change lawyers three times in the period from his arrest to conviction.
The legal terrain surrounding disclosure of HIV to sexual partners in Canada has changed — but that is not the reason why the Crown has recommended the downgrade to manslaughter.
The factum references a “change in the scientific consensus” that indicates the risk of transmission by HIV-positive individuals is negligible, if the infected person has a reduced “viral load” either from regularly taking medication, or if the patient is one in a rare group called “elite controllers” who are naturally able to keep their viral loads low.
This change “has resulted in changes to prosecution policies across the country,” reads the factum.
But Aziga fell into neither of these categories when he was infecting multiple women, the Crown says: he refused to take medication, and is not an elite controller.
The Crown and amicus are proposing manslaughter in the context of recent court decisions surrounding intent. They argue that trial judge Thomas Lofchik failed to properly instruct the jury to consider whether Aziga had the full intention of killing the women he infected, that would raise the bar from manslaughter to murder.
Grant cites a case from 2019 in which the appeal court overturned three attempted-murder convictions for an HIV-positive man because the judge had not instructed the jury that evidence was weak suggesting the accused believed death to his partners from his actions “was a virtual certainty.”
If the appeal court agrees with a downgraded conviction, given Aziga’s time served, he would be eligible to apply for parole, but the parole board would recommend his release only when it is “satisfied that it can monitor and enforce his adherence to antiretroviral therapy,” reads the Crown factum.
In this vein, the Crown will argue that Aziga’s dangerous offender designation remain, because his “HIV and personality disorder create a dangerous mix.”
The designation would keep him incarcerated indefinitely, or until the parole board rules he no longer poses a risk to society.
The Crown still maintains that Aziga intended to kill his victims, which is the reason it will prosecute him for first-degree murder if the court orders a new trial.
At the 2009 trial, Crown prosecutor Karen Shea argued that Aziga’s intent was reflected in repeated lies to his sexual partners about his HIV status, even when he learned that some of the women were sick and after Hamilton public health officials told him he had infected three partners.
“It’s not just a failure to disclose,” said Shea in court. “It’s repeated out-and-out denials and lying … and convincing a couple of these women to stop using condoms when they were trying to protect themselves.”
HIV killer ruled dangerous offender
An Ontario man convicted of first-degree murder in the deaths of two of his sex partners through HIV transmission has been declared a dangerous offender.
A Hamilton, Ont., court granted a request by Crown prosecutors, who asked that Johnson Aziga be jailed indefinitely because they believe he is a high risk to reoffend.
Aziga was the first person to be charged and convicted of first-degree murder in Canada for spreading HIV. He was diagnosed with HIV in 1996 and had unprotected sex with 11 women without telling them he was HIV-positive.
Seven of these women later tested positive for HIV, and two later died of complications of AIDS.
Aziga, dressed in a dark grey suit and white shirt, addressed the court Tuesday for nearly an hour. He said he has filed an application to renounce his Canadian Citizenship because he doesn’t feel he faced a fair process, the CBC’s Kimberly Gale reported from the coutroom.
“I am a man of consciousness,” Aziga told the court. “I listen to it. It is clear, unambiguous and unmistakable. I had no intention to deliberately pass on my HIV to anyone.”
Aziga, 54, also said he planned to get HIV tattooed on the palms of his hands so women he meets know he is positive.
He said he didn’t disclose his HIV status because of sociological and ethno-cultural barriers, religion and taboos.
The Ugandan-born Aziga said that in sub-Saharan Africa, where he was raised, there was no education on sex, sex health or sexuality.
Outside the courtroom, Crown prosecutor Karen Shea said the women who survived are experiencing side effects from being infected with HIV and the fact they didn’t know about their infection in a timely fashion has directly affected the progress of the disease.
During his 2009 trial, the Crown described Aziga, a former employee of Ontario’s Ministry of the Attorney General, as a callous and arrogant person who lied about his HIV status.
Prosecutors alleged that Aziga failed to tell his partners of his HIV-positive status, even though he had been aware of it since 1996 and was under public-health orders to do so.
Aziga’s defence lawyers argued Aziga is a changed man and has learned more about HIV and AIDS while in jail.
Aziga has been in jail for eight years and is expected to appeal his murder conviction.
The designation “dangerous offender” is reserved for Canada’s most violent criminals and sexual predators.
Crown attorneys can seek the designation during sentencing and must show there is a high risk the criminal will commit violent or sexual offences in the future.
Guilty verdict in Hamilton HIV murder case
HAMILTON–A Hamilton jury rendered a historic legal verdict Saturday, making Johnson Aziga the first HIV-positive man in Canada to be convicted of murder for recklessly spreading the virus that causes AIDS.
Aziga, 52, of Hamilton, was found guilty as charged of two counts of first-degree murder and 10 counts of aggravated sexual assault, as well as being convicted on one count of attempted aggravated sexual assault.
The trial, which began in October, is the first in Canada involving someone being charged with lethally infecting partners with HIV, the virus that causes AIDS.
The nine men and three women on the Superior Court jury started deliberations Thursday and sat for about 25 hours before arriving at their verdict around 5 p.m.
The one count of aggravated sexual assault about which the jury had a reasonable doubt concerned a victim who had difficulty in the witness box remembering the dates when she first met Aziga and had unprotected sex with him.
The woman also had unprotected sex with another Ontario man who was subsequently found to be HIV positive and who carried the same rare African strain of HIV as Aziga.
Previous cases in Canada have established that an HIV-positive person cannot be convicted of aggravated sexual assault if an alleged victim is already infected prior to having unprotected sex with the accused person.
In that situation, the person can only be convicted of attempted aggravated sexual assault.
Aziga is to be sentenced on May 7.
Assistant Crown attorney Karen Shea told the judge she expects to have victim impact statements from many of the surviving complainants and their families.
HIV carrier failed to warn sex partners, Crown says
HAMILTON — The unprecedented murder trial of a man accused of having unprotected sex with numerous women despite knowing he carried the virus that can lead to AIDS began Monday with the prosecution saying he lied to his partners about his health status.
Johnson Aziga, 52, of Hamilton, faces two counts of first-degree murder because two of his girlfriends died of what the Crown says were HIV-related cancers, along with 11 counts of aggravated sexual assault.
“One may immediately think of a violent rape scenario,” prosecutor Tim Power told the three-woman, nine-man jury.
“That is not what this case is all about.”
Rather, Power said in his opening statement, Aziga put his partners at risk of serious bodily harm without their knowing, even having sex with one woman on the morning of his arrest in August 2003.
Seven of his 11 partners tested positive for HIV, including the two who died.
While there have been several criminal prosecutions in Canada and the U.S. related to the wilful spread of HIV, this appears to be the first time someone has been charged with lethally infecting partners.
“As far as I am aware, this is the first-ever first-degree murder trial for sexual HIV transmission,” Edwin Bernard, a British-based writer and editor specializing in HIV who tracks criminal cases involving the infection, said from Berlin.
Aziga’s lawyers said they plan to challenge “each and every aspect” of the Crown’s case during a trial they anticipate could last more than six weeks.
“We are sorry for the families,” Davies Bagambiire said outside court.
“(But) we do not believe it can be shown beyond a reasonable doubt that the deaths emanated from the HIV virus.”
The United Nations AIDS program and AIDS activists oppose criminal prosecutions, arguing they unfairly stigmatize HIV carriers and rely on faulty assumptions about the nature of the virus’s transmission and risks.
Power told court that evidence will show Aziga, an immigrant from Uganda, knew in January 1997 he had tested positive for a strain of HIV rarely found in North America, but failed to tell his partners.
Despite several counselling sessions on the risks of transmission and two public health orders that he inform partners about his status and use condoms during sex, he did not do so, Power said.
In addition, when some of the women asked him directly – including one who initially used condoms with him – if he had the human immunodeficiency virus, he said no.
“He went further and lied,” Power said.
One woman, a colleague of Aziga’s who had a relationship with him in the summer of 2001, videotaped a statement just before her death in December 2003 that is to be played as evidence.
In it, she says was ignorant of Aziga’s HIV status, Power told Ontario Superior Court.
The second deceased recorded an audio statement just prior to her death, indicating Aziga feigned ignorance about his infection when she contacted him in 2003 to tell him she had tested positive for HIV, court heard.
As a result, the Crown argued, the women could not have consented to sexual relations with Aziga, a former employee of Ontario’s Ministry of the Attorney General.
In fact, Power said, the women will testify they would not have had sex with Aziga had they known.
The first witness, Dr. Shariq Haider, a Hamilton-based expert on infectious diseases including HIV, testified close to 64,000 Canadians have tested positive for HIV since the mid-1980s, when the epidemic was first identified.
Of those, he said, about 20,000 carriers developed AIDS, the “end stage” of infection at which point the body’s compromised immune system allows for often fatal opportunistic infections and cancers to attack.
Haider testified that the chances of transmission of HIV range from about 0.1 per cent to 0.3 per cent for a single sex act, with the likelihood depending on how badly infected the carrier is, the health of the recipient and the type of sex act.
Anal intercourse is the most risky, followed by vaginal intercourse, he said, adding condoms are not foolproof in preventing transmission.
A person can be asymptomatic for 10 years before AIDS suddenly develops, Hailer said, though early drug intervention post-exposure can help arrest the infection’s progress.
The trial before Justice Thomas Lofchik continues.
'Landmark' HIV case goes to trial
TORONTO — A man facing first-degree murder charges for allegedly spreading the virus that causes AIDS will see his case go before a jury Monday in what’s believed to be the first prosecution of its kind in Canada.
Johnson Aziga, 52, has spent five years in pre-trial custody while cycling through several legal teams.
Two women died after allegedly having unprotected sex with him.
“It’s going to be a landmark case,” Mr. Aziga’s lawyer, Davies Bagambiire, said in an interview.
“This is the first time that a Canadian is prosecuted for alleged murder through the alleged dissemination or transmission of the HIV virus.”
Mr. Aziga, a former research analyst with Ontario’s Ministry of the Attorney General, has pleaded not guilty to two counts of first-degree murder and 11 counts of aggravated sexual assault.
“I look forward to the evidence unfolding so I can shake it up, cross-examine and demonstrate the holes in the evidence that I believe exist,” Mr. Bagambiire said.
Alison Symington, with the Canadian HIV/AIDS Legal Network, said the case is significant but adds the allegations against Mr. Aziga are rare.
“There are 60,000 people living with HIV in Canada,” said Ms. Symington.
“These are very rare cases indeed, but there’s so much attention to them and so much misinformation and panic around them that it really kind of increases stigma and discrimination, which ultimately may be counterproductive.”
The best way to protect the public is to educate them so that HIV-positive feel comfortable disclosing their status to sexual partners, Ms. Symington said.
“Condoms, disclosure: that’s going to prevent transmission. Criminal charges aren’t,” she said.
There has been a notable increase in criminal charges for HIV transmission since about 2000, Symington added.
Clato Mabior, an HIV-positive man in Winnipeg, was sentenced earlier this month to 14 years in prison on six counts of aggravated sexual assault, as well as one count each of invitation to sexual touching and sexual interference.
Mr. Mabior’s trial heard that none of the half-dozen females, ranging in age from 12 to adults, that he had sex with became infected.
Carl Leone was handed an 18-year sentence on April 4 after pleading guilty in Windsor, Ont., to 15 counts of aggravated sexual assault after failing to inform his sexual partners of his HIV status. Five of the 15 women are now HIV positive.
Former Saskatchewan Roughrider Trevis Smith, who is HIV positive, was sentenced Feb. 26, 2007, to 5 1/2 years in prison for aggravated sexual assault. He was found guilty for knowingly exposing two women to the virus that causes AIDS.
Mr. Bagambiire said he believes his client will not be found guilty but, if he is, Mr. Aziga would get double credit for time his five years of pre-trial custody.
That could also be multiplied if Mr. Aziga’s legal team successfully argues that time was spent in poor conditions, Mr. Bagambiire said.
“Other inmates attack him because they stigmatize him because of his HIV status,” he said.
Monday is the fifth trial date to have been set in Mr. Aziga’s case, largely due to adjournments sought by the defence and Mr. Aziga’s firing of three previous legal teams.
Mr. Bagambiire takes exception to characterizing the moves as delays.
“Really we call it fair trial,” he said.
“Justice can’t be done in a hurry. If you do justice in a hurry you end up with miscarriages of justice. Yes, time has passed, but that time has been worth it.”
AIDS murder trial to proceed
Jury selection will proceed as scheduled on Monday in the double-murder trial of an HIV-positive man accused of deliberately spreading the AIDS virus.
Superior Court Justice Thomas Lofchik yesterday rejected a request by Johnson Aziga, 52, to postpone the trial again so that he could be represented by criminal lawyer Greg Leslie. The lawyer has a heavy caseload and is unavailable to assist Aziga’s primary counsel, Davies Bagambiire, until August 2009.
Instead, another Toronto lawyer, Munyonzwe Hamalengwa, agreed yesterday to step in and help defend Aziga. The married but separated father of three children is facing two counts of first-degree murder and 11 counts of aggravated sexual assault in connection with 11 women who were sexual partners.
About 250 citizens have been summoned to appear for jury duty. Once 12 jurors and two alternates have been selected, the case is expected to adjourn until Oct. 20 to allow Hamalengwa time to familiarize himself with the evidence.
Aziga's lawyers' human rights arguments dismissed
Following up from this July 26th entry – Canada: Aziga’s treatment in prison is ‘cruel and unusual’ argue lawyers – Judge Thomas Lofchik has dismissed the case brought by .
The complete nine-page judgment can found here, but I’d like to quote from paragraph 41.
I find that given his HIV positive status, the Applicant’s decision to intentionally and purposely bite another inmate in at least two altercations gave rise to a medical risk of HIV transmission… During his medical assessment the Applicant failed to provide an assurance that he would not bite again. Instead he confirmed that he was a biting risk and thereby posed a risk of HIV transmission… In Dr. Grewal’s professional opinion the clinical decision to maintain the Applicant’s medical isolation was a reasonable and necessary precaution to protect others and I agree with this assessment.
This is the same Judge Lofchik who also rejected the following question for the trial’s jury selection process: Do you have an inflated sense of the risks of HIV transmission and a tendency toward HIV-phobia or panic (as opposed to a healthy fear of possible infection, based on a realistic assessment of risks associated with various acts, that can be part of prompting sensible, informed precautions)?
'There is simply no right to bite' Expert says jailhouse isolation of HIV murder suspect isn't breach of charter
It is not “cruel and unusual punishment” to medically isolate an HIV-positive inmate who bites another prisoner in a jailhouse brawl, says a government lawyer.
Michael Doi, a constitutional expert with the Ontario Ministry of the Attorney General, was responding to lawyers for Johnson Aziga, 52, who argued this week that their client’s treatment in Hamilton-Wentworth Detention Centre awaiting his much-delayed double-murder trial has been grossly unfair, jeopardized his health and violated the Canadian Charter of Rights and Freedoms.
Aziga says he has been the victim of unprovoked attacks by other inmates and on at least two occasions was forced to defend himself by any means possible, including biting.
His lawyer, David Bagambiire, said the detention centre responded in each instance by charging the victim of the assault with a misconduct and extending Aziga’s institutional sanction — 10 days of solitary confinement — to several months of medical segregation.
Bagambiire claims Aziga was stigmatized by his HIV status and notoriety in the media, which has resulted in unduly harsh punishments by correctional staff and violent attacks from other inmates.
Doi countered that locking Aziga in his cell 23 hours a day for months at a time was a rational and necessary response to the public health risk posed by his biting.
“There is simply no right to bite,” Doi said. “But in Mr. Aziga’s case, the misconduct of biting could result in the transmission of a virus that causes a serious, chronic and fatal disease for which there is no cure.”
Aziga has been in custody awaiting trial since Aug. 31, 2003. He faces two counts of first-degree murder and 13 counts of aggravated sexual assault for allegedly failing to disclose to 13 women who were his sexual partners that he carried the virus that causes AIDS.
Two Toronto women allegedly infected by the accused man have died. Five others have tested positive for the virus. Aziga is believed to be the first person in Canada to be charged with murder in an HIV-transmission case.
Defence lawyers Bagambiire and Selwyn Pieters are seeking relief for their client under the charter, arguing not only his unfair treatment but also a failure by his custodians to consistently provide his medications for HIV (human immunodeficiency virus).
Should they persuade Superior Court Justice Thomas Lofchik that Aziga’s constitutional rights were violated, but fail to convince him to stay the charges, the lawyers seek to have Aziga released on bail pending a verdict in his Oct. 6 trial. Failing that, they’re asking the court to impose a reduced sentence if Aziga is ultimately convicted on the charges.
Dr. Anita Grewal, a local physician who treats inmates at the jail, was questioned by Bagambiire about what medical protocol or regulation dictated what should be done when a HIV-positive inmate has bitten another prisoner.
“To my knowledge, there is no specific document,” Grewal said. “In fact, this is sort of a new — let’s say weapon or way — of hurting other people. So there are no specific documents for this.”
Assistant Crown attorney Karen Shea argued the application ought to be dismissed because it failed to meet the threshold for cruel and unusual treatment set out in the charter. The law states the treatment must be “so excessive as to outrage standards of decency.”
Shea argued that medical isolation was necessary because unlike “shanks” or other knife-like weapons an inmate might fashion to defend himself, “Mr. Aziga has a lethal weapon in his arsenal that can never be taken away, and that’s his HIV, which has potentially fatal consequences.”
Lofchik has reserved his ruling until Aug. 6.
Aziga judge allows three jury screening questions
In June, I reported that Johnson Aziga’s lawyers, Selwyn Pieters and Davies Bagambiire , had asked Justice Thomas Lofchik to rule on the kind of questions that should be used to screen jurors in Mr Aziga’s forthcoming murder trial.
The questions that Mr Aziga’s lawyers wanted to ask were as follows:
1. Would your ability to judge the evidence in the case at bar without bias, prejudice or partiality be affected by the fact that there has been recent newspaper, television, radio, or internet broadcasts, regarding criminal transmission of Human Immunodeficiency Virus (“HIV”), the cause of AIDS (Acquired Immunodeficiency Syndrome)?
2. Do you have an inflated sense of the risks of HIV transmission and a tendency toward HIV-phobia or panic (as opposed to a healthy fear of possible infection, based on a realistic assessment of risks associated with various acts, that can be part of prompting sensible, informed precautions)?
3. Do you have any fears, assumptions and prejudices about HIV Virus period, which may feed into your judgments and assumptions about the accused and also your ability to assess the evidence in a calm rational fashion?
4. Would your ability to judge the evidence in the case at bar without bias, prejudice or partiality be affected by the fact that the individual charged is a black Canadian citizen who was born in Uganda, has HIV and the alleged victims, including the two deceased women, are white?
5. Are you one of those men or women who are so adverse to discussing issues of science and/or mathematics, that you would have a mental block in relating to the evidence of science that the Crown is likely to present against the accused in this case?
Although Justice Lofchik ruled that anyone who had read some of the pre-trial media reports (or seen them on TV) may well be biased, he did not accept that there was community-wide bias against people with HIV that would render jurors incapable of being unbiased, nor did he accept that “emotions surrounding HIV and AIDS and their transmission will lead to prejudicial and unfair juror behaviour”; not did he accept that asking about scientific ‘mental blocks’ was necessary.
He has allowed the following questions:
1. Do you have any previous knowledge of this case (or other recent cases involving criminal HIV transmission) through the newspaper, radio, television or the internet?
2. Given your knowledge of this case (or other recent cases involving criminal HIV transmission), are you able to decide this case based solely on the evidence you hear in the courtroom and the judge’s directions on the law?
3. Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the individual charged is a black Canadian citizen who was born in Uganda, has HIV (Human Immunodeficiency Virus), and the alleged victims, including the two deceased women, are white?
The full ruling of R. v. Aziga, 2008 CanLII 29780 (ON S.C.) — 2008-06-18
Ontario — Superior Court of Justice, can be found on the Canadian Legal Information Institute website here and downloaded as a pdf here.
Drop charges: Defence Claims HIV-murder suspect's rights violated in jail
Claiming cruel and unusual punishment against their client during his time in jail, lawyers for a Hamilton man accused of fatally infecting women with the virus that causes AIDS want his charges dropped.
Johnson Aziga, 52, is believed to be the first person in Canada to be charged with murder in connection with AIDS-related deaths.
The motion will be heard next Wednesday, confirmed defence lawyer Davies Bagambiire after a court appearance yesterday.
Ugandan-born Aziga faces two charges of first-degree murder in connection with two Toronto women who died of AIDS after allegedly having unprotected sex with him.
He also faces 13 counts of aggravated sexual assault for failing to disclose his HIV status to those women and 11 other female sexual partners.
Bagambiire said Aziga’s constitutional rights have been violated in nearly 20 different ways ranging from lengthy periods of isolation, being denied some meals and stigmatization.
“Both the prison guards and the fellow inmates stigmatize him,” said Bagambiire from his Toronto office. “They look at him as an untouchable within the prison environment … (Other inmates) beat him, and when he hits back in self defence he’s taken to confinement. It’s a vicious cycle.”
During yesterday’s Superior Court appearance, defence lawyer Selwyn Pieters argued in a pre-trial hearing that potential jurors be screened with five specific questions.
The questions include whether they have a “tendency toward HIV-phobia,” and whether or not their ability to judge the evidence would be affected by the facts that Aziga is black and has HIV and the alleged victims are white.
Pieters attempted to show that the questions were a necessary filter on grounds of widespread bias among the public.
Assistant Crown Attorney Karen Shea said the defence failed in their attempts to show the bias is widespread. Justice Thomas Lofchik heard the motion and reserved judgment until next week’s court appearance.
Aziga, a former research analyst with the Ministry of the Attorney General, lost an earlier bid to have the charges stayed because his constitutional right to a speedy trial had been infringed.
His trial is set to begin Oct. 6.
Lawyers for HIV-positive Johnson Aziga want murder charges thrown out
HAMILTON, Ont – Lawyers for a man charged with two counts of first-degree murder for allegedly infecting women with the virus that causes AIDS want the charges thrown out on the grounds he’s suffered cruel and unusual treatment while in custody.
Johnson Aziga, believed to be the first person in Canada to face murder charges for allegedly spreading HIV, has been awaiting trial at a detention centre in Hamilton for nearly five years.
Speaking outside court Tuesday, lawyers Davies Bagambiire and Selwyn Pieters said they want the charges thrown out because Aziga’s treatment behind bars violates his constitutional rights.
“He’s confined 24 hours, effectively, a day,” Bagambiire said. “A lot of the inmates don’t want to associate with him, don’t want to share cells with him, or attack him and assault him physically.”
The Ugandan-born Canadian citizen, 52, has been kept in solitary confinement several times after fights provoked by other inmates, including one stretch lasting 60 days, he added.
Bagambiire said Aziga’s health has deteriorated because the segregation cuts off his access to specialized medical care at a McMaster University hospital clinic.
“He’s not a prisoner yet, he’s not been found guilty of any offence; we’re looking at allegations,” Bagambiire said. “(Aziga is) entitled to as much health care and treatment as any Canadian in Canadian society is.”
Aziga’s defence team is also hoping to win bail for their client, Pieters added.
Aziga, formerly an employee with Ontario’s Ministry of the Attorney General, faces two counts of first-degree murder and 13 counts of aggravated assault following the deaths of two Toronto women who tested positive for HIV.
Several other women from across Ontario came forward following Aziga’s arrest in August 2003. Five of them have since tested positive for HIV.
The trial is slated to begin Oct. 6.
Ministry to pay for HIV defence
A Hamilton man accused of fatally infecting his sexual partners with the virus that causes AIDS will have his legal defence funded by his former employer — the Ministry of the Attorney General.
Ministry representatives agreed to pick up Johnson Aziga’s legal bills yesterday after a private meeting with his new defence team and members of Legal Aid Ontario. Legal Aid Ontario funds the majority of criminal defendants who can’t afford a lawyer. But the publicly funded agency recently pulled the plug on Aziga after he fired another lawyer, Charles Spettigue, and caused another delay in his long-awaited trial.
The ministry funds about 15 cases a year under exceptional circumstances.
At the time of his arrest on Aug. 30, 2003, the native of Uganda was employed as a research and evaluation analyst with the business planning and research division of the Ministry of the Ontario General.
He faces two charges of first-degree murder in connection with two Toronto women who died of AIDS after allegedly having unprotected sex with Aziga. He also faces 13 counts of aggravated sexual assault for failing to disclose his HIV status to the Toronto women and 11 other female sexual partners. Seven of the women, including the two who died, became HIV-positive and six remain HIV-negative. He’s believed to be the first person in Canada to be charged with murder in connection with AIDS-related deaths.
The Bay Street North resident has been languishing at the Hamilton-Wentworth detention centre for almost 4 1/2 years. During this period, he fired several lawyers and relied on Ontario Legal Aid to pay his legal bills. But after funding four previous defence teams, the financially strapped agency has refused to give him any more money.
His trial was rescheduled for the fifth time yesterday. Now set to begin Oct. 6, the trial is expected to last about six weeks. The Crown has subpoenaed 40 witnesses, including medical experts, for what is shaping up as a complex case.
As of yesterday, when the new funding agreement was arranged, Aziga was represented by veteran Toronto lawyers Davies Bagambiire and Selwyn Pieters. During a brief appearance before Superior Court Justice Thomas Lofchik, Aziga indicated he was content with the new defence team and new funding arrangement.
There is nothing to prevent Aziga from firing his new lawyers but Lofchik has said he’d override Aziga’s wishes by appointing the lawyers as “friends of the court.”
Lofchik has also made it clear the trial will go ahead, whether he has a lawyer or not.
Date set for first-ever HIV transmission murder trial
Johnson Aziga, 51, will finally be tried on May 12th, 2008 for the first-degree murder of two former female sexual partners who died of HIV-related illnesses.
Three previous trial dates had been cancelled after Aziga fired previous defence teams.
Superior Court Justice Thomas Lofchik said that the trial would take place in May whether or not Aziga had a lawyer at the time.
Aziga is also accused of 13 counts of aggravated sexual assault for failing to disclose his HIV status to the two women who died and to 11 others with whom he had unprotected sex.