Johnson Aziga appeal may lead to downgraded conviction, parole eligibility for Hamilton ‘HIV killer’

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.

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.

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?"

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."

Jon Wells is a feature writer at The Spectator. jwells@thespec.com