‘You were a weapon. People suffered, people died’: Parole board denies HIV-positive dangerous offender Johnson Aziga’s bid for freedom
It took a mere 10 minutes for the parole board to reject Johnson Aziga’s bid for deliverance from prison. He is convicted of manslaughter in the deaths of two women and eight counts of aggravated sexual assault for infecting 11 intimate partners with HIV, without ever disclosing his HIV-positive status or taking any precautions.
It took a mere 10 minutes of deliberation for the parole board to reject — anyway, anyhow — Johnson Aziga’s bid for deliverance from prison.
Which was to be expected for a designated dangerous offender, convicted of manslaughter in the deaths of two women and eight counts of aggravated sexual assault for infecting 11 intimate partners with the virus that can cause AIDS, without ever disclosing his HIV-positive status or taking any precautions.
Two of those women subsequently suffered “horrible and despairing deaths’’ due to complications from AIDS, as described by the Ontario Court of Appeal. Seven others tested positive for HIV. While it could not be established with certainty that Aziga was the individual who transmitted the virus to all of them, each had tested positive for an HIV strain traced to a common source — the HIV 1-A strain that is rare in North America.
Aziga is from Uganda. He was the first person in Canada ever convicted of murder for fatally infecting partners with HIV.
A former research analyst and statistician for Ontario’s Ministry of the Attorney General, Aziga had initially been found guilty of first-degree murder in the deaths of the two women after a six-month trial in 2009. Those convictions were quashed on appeal in January, downgraded to manslaughter after the three-judge panel found that the trial judge had failed to properly instruct the jury on whether Aziga had the required intent to commit murder when he had unprotected sex with the victims. That court upheld the dangerous offender designation, rendered in 2011, which carries an indeterminate prison sentence. Manslaughter means life in prison but parole eligibility seven years after the date of arrest.
Less than a year later, Aziga got his first shot at parole on Tuesday. And was immediately shot down.
“It is a negative decision, I’m not going to keep you in suspense,’’ said Kathleen Gowanlock, one of the two panel members. “The board is denying day parole, the board is denying full parole.’’
Any form of parole, including escorted temporary passes, had also been disapproved by Aziga’s parole officer and the psychiatrist who conducted a risk assessment, both concluding Aziga wasn’t ready for conditional release. Though he’s completed the sexual offender program and several other programs directed at understanding boundaries, victim impact and empathy, he requires further undertakings before a staged process of returning to the community, the parole officer told the hearing, held at the Bath Institution near Kingston.
Over the two-and-a-half-hour hearing, Aziga, who represented himself, argued that continued imprisonment wasn’t necessary for rehabilitation. “ Beyond punishment for the crime, basically,’’ he said. In addition, he continued, the rehabilitative progression from behind prison walls would not be conducive to the community adjustment he needs, particularly because the science of HIV and public attitudes have evolved immensely since his arrest. “Nothing’s going to happen here. It’s been years. And right now the communities are better prepared … than in here.’’
But the panel also heard that Aziga has twice in the last three years been cited for prison violations directly related to sexual urges he’s been unable to control: In 2020, he was found with naked pictures of women (Aziga said another inmate had stuffed them in his pocket) and this past August prison guards found four binders of explicit pornography in his cell, which he’d been collecting since 2011.
Aziga countered that he’s been attempting to manage his sexual energy. “I’m trying to redirect that energy. I had the choice of having sex or masturbate. Now they’re saying it’s wrong for me to do it.’’
It was, arguably, a relevant point. Aziga claimed no one has ever told him how often it would be reasonable to masturbate or if he had gone overboard.
“Yes, I do still have desire for a woman. I’m not gay. I think my sexual urges are controllable by me.’’
They were not, by any measuring stick, controllable back in 1996, when — separated from his wife, father of three — he was diagnosed with HIV. Despite receiving extensive counselling on safe sex practices and twice being issued with public health orders compelling him to disclose his HIV status to any potential sex partners, Aziga continued to withhold that information while, frankly, fornicating unsuspecting women to death and illness, outright lying when asked and refusing to wear a condom. The two women who died left behind anguishing videotaped testimony that was played at his trial.
At the time, Aziga was not taking medication to reduce his viral load and ability to transmit the virus because he didn’t like the drugs. All those women were infected between 2000 and 2003. Indeed, on the day of his arrest in September 2003, his then-girlfriend was unaware that Aziga was HIV-positive.
Under Canadian law, people with HIV or AIDS don’t have to disclose that information before having vaginal or anal sex if a condom is used and they have a “low’’ viral load. In the past year, the federal government has held public consultations on reforming the law around disclosure, with doctors and many in the activist community asserting that disclosure perpetuates and amplifies stigma. In 2012, the Supreme Court of Canada ruled that disclosure of HIV status previous to sexual activity was required where there is a realistic possibility of transmission. If there is no realistic possibility of transmission, failure to disclose does not constitute a crime.
At trial and again on Tuesday, Aziga, 67, maintained that his culture as a Black man from Africa where AIDS sufferers are ostracized, coupled with a string of personal traumas, including a son with autism, his collapsing marriage, even the strength of his daily work commute from Hamilton to Toronto, had contributed to his harmful behaviour. Also mentioning alcohol abuse as a factor, Aziga claimed he was insufficiently aware of the virus’s potential impact on others.
“At that time, I didn’t know what it was. Who would do stuff like that? Definitely not the way I was raised up.’’
Except he was explicitly informed by public health nurses and the two orders he ignored, even refusing to provide officials with the names of his sexual partners so they could seek treatment immediately.
“Your situation was novel, we understand that,’’ noted Gowanlock. “But if you were told very clearly and you were subject to public health orders, that was a pretty clear directive that you’re putting other people at risk for serious health compromises and two women died, in fact. You weren’t a young man when these things happened, you were educated. So in terms of who you are, that you were able to overlook this and put your own interest ahead of everybody else, how do you understand that, looking back on who you used to be and who you are now?’’
Alcohol, repeated Aziga, though he struggled to give a more nuanced answer.
Robert Sicard, the other panel member, leaned into that point. “You weren’t drunk 24-7. You understood these orders. But you chose not to follow them. You got sick in ’96, you had multiple partners, you were served with an order, you were served with a second order. And you still didn’t disclose.
“Today you are leading a normal life, as normal as can be under the circumstances. Two of the victims are dead, a number of others continue to suffer. How does that make you feel, how does that make you think about you deserving freedom, when they have no freedom? Help me to understand that.’’
Aziga: “I’m not dodging that. The fear, the fear. Today it’s very easy. I would stand up there and shout: My name is Johnson Aziga. I am HIV-positive. But we’re talking 20 years ago.’’
That didn’t go over well with the panel, either. “There are many forms of weapons,’’ said Sicard. “There are guns and knives, people suffer, people die. You were a weapon. People suffered, people died.’’
Dangerous offenders serving an indeterminate sentence can generally apply for parole every two years.
By
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.
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.
Editorial comment
The trial of Johnson Aziga will commence on Monday with jury selection. Around 250 Canadian citizens will be asked three HIV-specific screening 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?
Mr Aziga is first person ever to be tried for murder following the death of two women from HIV-related illnesses, after they were allegedly infected with HIV following alleged unprotected sex without Mr Aziga disclosing his HIV status. He is also charged with a further eleven counts of aggravated sexual assault for allegedly having unprotected sex with eleven women without disclosing his HIV status.
The trial has been postponed at least three times due to Mr Aziga changing his legal representation. He tried to postpone the trial again earlier this week, in order to obtain the services of criminal defence lawyer Greg Leslie, but Justice Thomas Lofchik, presiding, has obviously lost patience with Mr Aziga. As a compromise, once the jury has been selected, the trial will adjourn until October 20th, to allow another lawyer new to Mr Aziga’s defence team, Munyonzwe Hamalengwa, to catch up with the details of the case.
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)?
I suggest
'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.
Editorial comment
Mr Aziga’s lawyers, David
However, the Crown argued that since Mr Aziga chose to defend himself from attacks by other prisoners by biting, and that “so excessive as to outrage standards of decency.”
Assistant Crown attorney Karen 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.”
Although there have been several case reports of HIV transmission via a bite, these are reassuringly extremely rare and would require fresh blood in the saliva of the HIV-positive person as well as an extremely high viral load – usually seen during primary infection or extremely advanced HIV disease.
The criminal justice system is completely over-reacting to the threat of HIV-positive individuals spitting and biting, and, in my opinion this is “so excessive as to outrage standards of decency.”
I’m certainly outraged!
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.
Editorial comment
SUMMARY OF R. V. J.A., 2023 ONCA 12 – HIV Legal Network
Published on 7th July 2023
Introduction
In January 2023, the Court of Appeal for Ontario released its decision in the case of R. v. J.A., concerning the appeal of a man who had been convicted of two counts of first-degree murder, ten counts of aggravated sexual assault, and one count of attempted aggravated sexual assault in relation to HIV non-disclosure. The Court of Appeal set aside the murder convictions and substituted verdicts of manslaughter, set aside two convictions for aggravated sexual assault and ordered a new trial on each count, and denied the appeal on the remaining eight counts of aggravated sexual assault as well as the count of attempted aggravated sexual assault.
Facts & Trial Court Decision
In December 1996, the appellant in this case learned he was HIV-positive. While the appellant accepted therapeutic medication to maintain his health, he continued to decline antiretroviral therapy (“ART”) over the years.[1] Based on the evidence presented at trial, the appellant was “at least moderately infectious” (viral load between 20,000-40,000 copies/ml) between June 2000 and August 2003 when the sexual activity that led to the charges against him took place.[2]
At trial, the appellant was convicted of two counts of first-degree murder, ten counts of aggravated sexual assault, and one count of attempted aggravated sexual assault as the result of engaging in penetrative sexual activity with 11 different women without disclosing that he was living with HIV and without using a condom.[3]
The murder charges stemmed from the fact that two of the complainants who tested positive for HIV at some point following their encounters with the appellant had subsequently died of illnesses that were deemed to have been related to their HIV infection.[4] Expert evidence based on genetic sequencing was presented at trial to demonstrate that the appellant’s and complainants’ HIV infections were the same statistically rare subtype, that they were part of the same “transmission cluster”, and that the appellant contracted the virus before the complainants.[5] While these findings were not relied upon as “direct evidence” that the appellant had transmitted HIV to the complainant, they were nevertheless relevant to the court’s finding that he had caused the death of the two complainants.[6]
Court of Appeal Decision
A murder conviction requires that a court be satisfied that an accused had either the direct intention to cause a person’s death or that they had an oblique intention, meaning the knowledge that death was virtually certain to result from their actions. In this case, there was no evidence that the appellant had any direct intention to kill or to cause life-threatening bodily harm to the two complainants who eventually died.[7] Moreover, the Crown conceded on appeal that it had not presented sufficient evidence at trial that the appellant had the knowledge that his actions were “virtually certain” to cause the death of two complainants.[8] In turn, the trial judge did not give proper instructions to the jury on the legal requirements of oblique intention. Consequently, the Court of Appeal concluded that the trial judge misdirected the jury in relation to the two first-degree murder convictions, as the judge’s instructions effectively told the jurors that they could convict “based on findings about [the appellant’s] state of mind that are legally insufficient to prove the offence of murder”.[9]
As a result, the Court of Appeal set aside the two murder convictions and substituted manslaughter convictions. A conviction for manslaughter does not require intention to cause death – it is sufficient for a person to have intended to cause bodily harm to the deceased and for their death to have resulted from an unlawful act. In this case, the manslaughter convictions were grounded in the evidence that the two complainants’ deaths were a direct consequence of the aggravated sexual assaults committed by the appellant.[10]
In its decision, the Court of Appeal also declined to heed the calls of the interveners – the HIV/AIDS Legal Clinic of Ontario and the HIV Legal Network – to direct trial judges to give robust and comprehensive jury charges on HIV-related medical evidence in murder cases arising from alleged HIV transmission.[11] In particular, the interveners had sought to highlight the importance for courts to consider stigma, privacy concerns, and mental health challenges that people living with HIV face in such cases.
The Court of Appeal further ordered new trials with regard to two counts of aggravated sexual assault related to instances of unprotected oral penetration.[12] The Court concluded that the trial judge had failed to adequately instruct the jury on one of the elements it needed to consider on these counts: whether the sexual activity in question, namely unprotected oral penetration, posed a “significant risk of serious bodily harm”.[13] The Court could have chosen to acquit the appellant of the counts related to unprotected oral sex, but instead ordered a new trial. Troublingly, the Court relied upon the Supreme Court’s decision in Mabior to suggest that “even an extremely unlikely possibility of transmission of HIV can qualify as a realistic possibility of transmission”.[14] As such, the Court declined to exclude the possibility of a conviction in a case of unprotected oral penetration alone, if a jury is properly instructed. This comes despite the fact that international scientific consensus has found that the possibility of HIV transmission via oral sex varies from none to negligible.[15]
As a final point, it was argued on appeal that the appellant’s convictions must be set aside in the interests of justice due to the convictions being based upon “outdated science”.[16] The Court of Appeal rejected this argument, concluding that while the scientific understanding of the risk posed by individuals with a suppressed viral load had developped between the time of the appellant’s initial trial in 2008 and of his appeal in 2022, this was not relevant to his case as the appellant had an unsuppressed viral load and was “moderately infectious” when he committed the offences.[17] Ultimately, the Court ruled that there had been no material change in the scientific knowledge around the risk presented “by those who are moderately infectious.”[18]
Conclusion
In R. v. J.A., a case concerning a man accused of criminal offences stemming from HIV non-disclosure, the Court of Appeal for Ontario set aside two murder convictions and substituted verdicts of manslaughter in relation to the death of two complainants. The Court also overturned two convictions for aggravated sexual assault and ordered a new trial on each count, in relation to instances of unprotected oral sex.
Regrettably, the Court of Appeal’s decision in this case leaves the door open to the possibility of a criminal conviction based on the “extremely unlikely possibility of transmission of HIV” posed by unprotected oral penetration alone, if a jury is properly instructed.
As well, the Court could have gone further in its analysis, but it disappointingly declined to direct trial judges to give comprehensive jury instructions in cases arising from alleged HIV transmission, which are sensitive to the need to combat misconceptions about the risk of HIV transmission and which acknowledge the real-world context and pressures that contribute to non-disclosure.[19]
[1] R. v. J.A., 2023 ONCA 12 at para 7-8.
[2] Ibid, at para 9.
[3] Ibid, at para 1.
[4] Ibid, at para 1.
[5] Ibid, at para 16.
[6] Ibid, at para 16, 35.
[7] Ibid, at para 30.
[8] Ibid, at para 31.
[9] Ibid, at para 23.
[10] Ibid, at para 35.
[11] Ibid, at para 37.
[12] Ibid, at paras 61 and 63.
[13] Ibid, at paras 53-54.
[14] Ibid, at para 50.
[15] Barré-Sinoussi F et al., ‘Expert consensus statement on the science of HIV in the context of criminal law’, Journal of the International AIDS Society, 2018, doi.org/10.1002/jia2.25161.
[16] R. v. J.A., 2023 ONCA 12 at para 64.
[17] Ibid, at para 65.
[18] Ibid.
[19] Ibid, at para 37.