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.