Race, HIV transmission or exposure and Criminal Justice: would it be different if Charlie Sheen was Johnson Aziga or Michael "Tiger Mandingo" Johnson?

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Created December 04, 2015

Charlie Sheen is White, Anglo, Saxon, Protestant. He is part of the establishment, very wealthy and has not been criminally charged despite the allegations similar in nature to Aziga and Johnson. Aziga and Johnson are Black, poor, not part of the establishment and had the resources of the state deployed against them in an unprecedented way.

A question for the Jury in Aziga was "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?" R. v. Aziga, 2008 CanLII 29780 (ON SC). This was the first HIV Positive murder case in the world and I was concerned that the right questions was asked of jurors so that the jury was truly impartial.

On April 4th, 2009, Aziga, a Black Ugandan-Canadian male, was convicted, by a Hamilton, Ontario court composed of judge and jury, of two counts of first degree murder, 10 counts of aggravated sexual assault, and 1 count of attempted aggravated sexual assault. All charges arise from fact situations where the applicant, being HIV positive had unprotected sexual intercourse with women without informing them of his HIV status. He was subsequently declared a dangerous offender and is serving an indeterminate sentence in a Federal Prison. See, R. v. Aziga, 2010 ONSC 3683, [2010] OJ No 2763 (QL) and R. v. Aziga, 2011 ONSC 4592 (CanLII).

Michael Johnson, an African-American male, was convicted, by a St. Charles, Missouri court composed of judge and jury, of being HIV positive had unprotected sexual intercourse with men without informing them of his HIV status thereby recklessly exposing them to the HIV virus. He was sentenced to 30 years to life in prison. Johnson was a college athlete (wrestler), who was hooking up with men in his area mostly through social networks created for sexual encounters. He was represented by a public defender.

I am not a proponent of the criminalization of HIV. However, I do take the view that persons aware of their HIV Positive status who consciously fail to disclose that status and have unprotected sex must be held accountable equally. Black people in Canada and the United States of America form the bulk of the persons criminalised under the various laws in respect to HIV disclosure. The laws should not be unevenly applied based on one's race, wealth and/or status in society.

In Ontario, for example, there is a "guideline for Crown Attorneys relating to the prosecution of HIV exposure and transmission cases." However, this document is not publicly available so that the various considerations taken into account by Crown Attorneys are absent from public scrutiny or perview.

Charlie Sheen's case is now the litmus test by which American Justice will be view on the criminal prosecution or the lack thereof of HIV.

***

Selwyn A. Pieters was appointed Co-counsel on January 25, 2008 in R. v. Johnson Aziga, charged with 2 counts of first-degree murder and 13 counts of aggravated sexual assault. 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; R. v. Aziga; 2008 CarswellOnt 4300 and R. v. Aziga [2008] O.J. No. 3052, 78 W.C.B. (2d) 410. I got off the record on this file on August 06, 2008.

Selwyn Pieters - Lawyer, Notary Public, Legal Commentator

Selwyn Pieters is a frequent guest Legal Analyst for print, radio and television media, locally, nationally and internationally on a wide range of matters touching on human rights, criminal law, civil litigation, defamation law, anti-bullying, gun, drugs and gang sweeps, racial profiling, to name just a few.

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.