Toronto Police Deaths and Injuries in Custody From Juy 31, 2011

By Selwyn A. Pieters, B.A., LL.B.
Barrister, Solicitor & Notary Public

July 31, 2011 at the Caribana Parade, three people shot, one died, two injured, all from police bullets.

August 1, 2011 a disabled man who is walking with his mother is killed by the police in an encounter that may well be a case of mistaken identity.

August 07, 2011, another police shooting at Pharmacy Avenue and Conroy Avenue.

The Special Investigations Unit (SIU) is a civilian law enforcement agency, independent of the police, however, comprised of mostly retired police officers on its investigative staff, that conducts criminal investigations into circumstances involving police and civilians that have resulted in serious injury, death or allegations of sexual assault. Very rarely are any charges laid against police officers and the standards set by the SIU to lay charges are quite higher than that used to charge civilians.

It would be interesting to see the results of the various investigations into these incidents. However, for some perspective, see: Ombudsman Ontario, Oversight Unseen, 2008.

Johnson Aziga Dangerous Offender Hearing and Designation

By Selwyn A. Pieters
Barrister, Solicitor & Notary Public

Today at the John Sopinka Courthouse, Mr. Justice Lofchik has rendered his decision in R. v. Aziga, 2011 ONSC 4592 and found that Mr. Johnson Aziga should be designated a dangerous offender, thus likely guaranteeing that he would spend the rest of his life in the custody of the state.  Justice Lofchik ruled that in considering any assurances given by Mr. Aziga "I must consider that the offender has a multi-year history of deception." That conduct the Judge ruled “represents a substantial risk to the community.”

On April 04, 2009, Mr. Aziga was found guilty by a jury of first-degree murder in the deaths of two women who died from AIDS-related illnesses. He was also found guilty on 10 counts of aggravated sexual assault and one count of attempted aggravated sexual assault. This case is believed to be the first case in the world where someone has been convicted of murder by HIV.

Mr. Aziga's  dangerous offender hearing commenced May 10, 2011 to determine whether or not he is to be classified as a dangerous offender. Such status results in an indeterminate sentence. Expert evidence was heard from Forensic Psychiatrist Dr. Philip Klassen. He said Mr. Aziga expressed little remorse and blamed his failure to disclose on an "undescended testicle" amongst other things.

A public Health Nurse also gave evidence. Further, some of the victims testified as well as the family of those women who have already passed from AIDS related illness.

Mr. Aziga took the stand at his dangerous offender hearing.

Selwyn Pieters was co-counsel in Aziga's matter from January 24, 2008 to August 05, 2008. My work on the file resuled in three important and significant judicial decisions: See, R. v. Aziga [2008] O.J. No. 2431, 78 W.C.B. (2d) 87 (challenge for cause - HIV Phobia); R. v. Aziga; 2008 CarswellOnt 4300 (allowing him to be unshackled in court) and R. v. Aziga [2008] O.J. No. 3052, 78 W.C.B. (2d) 410 (cruel and unusual treatment and punishment charter challenge).

Outside of Mr. Aziga's own context, the finding of guilt on the murders and his designation as a dangerous offender charts new terrain and certainly should be of interest to HIV harm reduction workers and hiv positive persons - as it is now a precedent that could be used to when the full brunt of the law is unleashed on a person who is HIV positive and failed to inform their partner of his/her status or otherwise failed to take preventative measures - that resulted in the infection of another person.

Aziga Caselaw

• R. v. Aziga, 2008 CanLII 53841 (ON S.C.) — 2008-10-20
  Ontario — Superior Court of Justice
  aggravated sexual assault — compellable — charged — spouse — common law exception
• R. v. Aziga, 2008 CanLII 53125 (ON S.C.) — 2008-10-14
  Ontario — Superior Court of Justice
  adjournments — co-counsel — choice — date — retain
• R. v. Aziga, 2008 CanLII 39612 (ON S.C.) — 2008-08-08
  Ontario — Superior Court of Justice
  hours — funding — preparation — forensic evidence — time
• R. v. Aziga, 2008 CanLII 39222 (ON S.C.) - inmates — medical — protective custody — detention — unit
• R. v. Aziga; 2008 CarswellOnt 4300 (ON S.C.)
• R. v. Aziga, 2008 CanLII 29780 (ON S.C.) — 2008-06-18 Ontario — Superior Court of Justice prospective jurors — partiality — recent cases involving criminal transmission — bias — black citizen who was born
• R. v. Aziga, 2006 CanLII 42798 (ON S.C.) — 2006-12-29 Ontario — Superior Court of Justice principle against self-incrimination — infected — unprotected — sexual activity — penetrative
• R. v. Aziga, 2007 CanLII 249 (ON S.C.) — 2007-01-10 Ontario — Superior Court of Justice expert — scientific — evidence — adjournment — defence
• R. v. Aziga, 2007 CanLII 56095 (ON S.C.) — 2007-12-18 Ontario — Superior Court of Justice infected — subtype — sexual — complainants — unprotected
• R. v. Aziga, 2007 CanLII 38 (ON S.C.) — 2007-01-03 Ontario — Superior Court of Justice delay — days — remand — time — defence
• R. v. Aziga, 2006 CanLII 38236 (ON S.C.) — 2006-11-14 Ontario — Superior Court of Justice reliability — dying declaration — hearsay — interview — nodding

Leading Cases In Canada

• R. v. Thornton, (1991), 1 O.R. (3d) 480, [1991] O.J. No. 25 (Ont. C.A.) (QL); affirmed at 1993 CanLII 95 (S.C.C.), (1993), 82 C.C.C. (3d) 530, [1993] S.C.J. No. 62 (S.C.C.) (QL)
• R. v. Cuerrier 1998 CanLII 796 (S.C.C.), (1998), 127 C.C.C. (3d) 1, [1998] S.C.J. No. 64 (S.C.C.) (QL)
• R. v. Williams 2003 SCC 41 (CanLII), 2003 SCC 41, 2003 SCC 41 (CanLII), (2003), 176 C.C.C. (3d) 449, S.C.J. No. 41 (S.C.C.) (QL).
• (1) R. v. Mercer, (1993), 84 C.C.C. (3d) 41, [1993] N.J. No. 198 (C.A.) (QL)
• R. v. Miron 2000 CanLII 4432 (MB P.C.), (2000), 174 Man.R. (2d) 52, [2000] M.J. No. 500 (Man. P.C.) (QL);
• R. v. Smith, 2008 SKCA 61 (CanLII), 2008 SKCA 61, 2008 S.J. No. 283 (QL);
• R. v. Williams, 2006 ONCJ 484 (CanLII), 2006 ONCJ 484, [2006] O.J. No. 5037 (QL);
• R. v. Nduwayo, 2006 BCSC 1972 (CanLII), 2006 BCSC 1972, [2006] B.C.J. No. 3418 (QL);
• R. v. Lamirande, 2006 MBCA 71 (CanLII), 2006 MBCA 71, [2006] M.J. No. 223 (QL);
• R. v. Walkem (2007), 73 W.C.B. (2d) 145, [2007] O.J. No. 186 (Ont. S.C.) (QL).
• R. v. Edwards, 2001 NSSC 80 (CanLII), 2001 NSSC 80, [2001] N.S.J. No. 221 (QL)

Other News Articles

Michael McKiernan "Taxing Aziga case sparks lawyers’ spat" Law Times, July 25, 2011; Defendant seeks another delay, Hamilton Spectator, Oct 1, 2008; Barbara Brown, 'There is simply no right to bite'; Expert says jailhouse isolation of HIV murder suspect isn't breach of charter, Hamilton Spectator, July 26, 2008; Tamsyn Burgmann, Lawyers for HIV-positive man want murder charge thrown out, Canadian Press, Jun 11, 2008. Also Ministry to pay for HIV defence, Hamilton Spectator, January 26, 2008; C. Blatchford, An HIV-positive bureaucrat, two women fatally infected and the 'duty to disclose', October 21, 2008.