WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.
486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order
Court of Appeal for Ontario
DATE: 20230110 DOCKET: C50421
Lauwers, Paciocco and Zarnett JJ.A.
BETWEEN
His Majesty the King Respondent
and
Johnson Aziga Appellant
Counsel:
Johnson Aziga, appearing in person Ingrid Grant and Jeff Marshman, appearing as amicus curiae Christine Tier, for the respondent Wayne Cunningham, Ryan Peck, and Omar Tobah for the interveners HIV & AIDS Legal Clinic of Ontario and the Canadian HIV/AIDS Legal Network
Heard: November 23-24, 2022
On appeal from the convictions entered by Justice Thomas R. Lofchik of the Superior Court of Justice, sitting with a jury, on April 4, 2009, and from the sentence imposed on August 2, 2011, with reasons reported at 2011 ONSC 4592.
Overview
1On April 4, 2009, Johnson Aziga was convicted after a jury trial 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 to them his knowledge that he was positive for HIV [1]. The two murder convictions arose from the deaths of two of the women, S.B. (Count 1) [2] and H.C. (Count 2), from AIDS [3] related malignancies. The attempted aggravated sexual assault conviction was an included offence conviction to a charge of aggravated sexual assault, no doubt on the basis that the jury had a reasonable doubt as to whether the complainant B.H. (Count 12) may have already been HIV-positive at the time of her sexual relationship with Mr. Aziga.
2On August 2, 2011, Mr. Aziga received the statutory minimum sentence on the two murder convictions of life without eligibility for parole for 25 years. He was also declared to be a dangerous offender and sentenced to an indeterminate period of incarceration on the 11 aggravated sexual assault-based convictions (Counts 3-13). He launched an inmate appeal against all of his convictions and his sentence on Counts 3-13. [4]
3The Crown conceded that Mr. Aziga’s murder convictions must be set aside. For the reasons that follow, I would agree with the Crown’s concession, set aside the murder convictions, and accede to the Crown’s unopposed request to substitute verdicts of manslaughter. I would sentence Mr. Aziga to life imprisonment on the manslaughter verdicts.
4I would also set aside the aggravated assault convictions involving two of the complainants, J.C. (Count 8) and M.D (Count 6). Those convictions were based exclusively on allegations of unprotected oral penetration. As I will explain, the trial judge materially misdirected the jury on the requirements for finding Mr. Aziga guilty of these charges.
5I would dismiss the other grounds of Mr. Aziga’s conviction appeal.
6Finally, I would dismiss Mr. Aziga’s sentence appeal. I see no basis for interfering with the dangerous offender designation or the indeterminate sentence, notwithstanding the reduction in the number of convictions and the proposed fresh evidence about changes in scientific knowledge about HIV transmissibility.
Material Facts
7In December 1996, Mr. Aziga learned he was HIV-positive. He attended an immunology clinic where, starting in 1997, he was repeatedly counselled about the risk of transmission through unprotected sex, the risks associated with AIDS, including premature death, and his legal obligation to disclose his HIV-positive status to any new partner prior to engaging in penetrative sexual activity.
8Mr. Aziga accepted therapeutic medication to maintain his health. However, he declined antiretroviral therapy (“ART”), available to prevent his viral load, and therefore his level of contagion, from increasing. He provided a litany of explanations for declining ART, including the thick bulky pills involved, the potential side effects, the expense, and confidentiality concerns. After being offered ART for free, he continued to decline, citing confidentiality and health concerns. He also expressed concern about his ability to follow the regimen that ART required.
9Despite declining ART, Mr. Aziga’s viral load remained stable in the “intermediate-range” of approximately 20,000 copies/ml until March 2001, before it began showing a progressive trend of increased viral replication reaching an upper range of 40,000 copies/ml by November 2002. In November 2003 his viral load was recorded at 33,791 copies/ml. Suffice it to say that, based on the evidence at trial, Mr. Aziga was at least moderately infectious between June 2000 and August 2003 when the sexual activity that led to the charges against Mr. Aziga occurred.
10It was not contested at trial that, between June 2000 and October 2002, Mr. Aziga engaged in unprotected sexual acts with 9 of the 11 complainants, without disclosing his HIV status: S.B. (Counts 1 and 3), H.C. (Counts 2 and 4), M.D. (Count 6), H.M. (Count 7), S.M. (Count 9), S.C. (Count 10), A.L. (Count 11), B.H. (Count 12), and L.C. (Count 13). [5]
11In June 2002, one of these 9 complainants, S.B. learned that she was HIV-positive, and later listed Mr. Aziga as a sexual contact. Given ongoing concerns Hamilton Public Health had about his failure to respond to the warnings and counselling he had received, Mr. Aziga was notified on October 17, 2002, that he was being ordered pursuant to s. 22 of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 (the “HPPA”) to attend additional counselling and educational sessions, to refrain from unprotected sex without first advising his partner, and to provide a full list of his sexual partners since his HIV diagnosis.
12Although Mr. Aziga attended further counselling and education sessions as ordered, he repeatedly breached the order. Again, it was not contested at trial that he subsequently continued to engage in multiple unprotected sexual acts with H.M. and B.H. (Counts 7 and 12), without disclosure, and he engaged in one unprotected sexual act without disclosure with a new partner, J.C. (Count 8). He also began a sexual relationship with a new girlfriend, H.B. (Count 5) without disclosing his HIV status. The evidence established that he failed to provide a full list of his sexual partners to public health officials, and he continued to refuse ART.
13In early 2003, L.C. (Count 13), who had become HIV-positive, also listed Mr. Aziga as a sexual contact. Public health officials implored him to comply with the s. 22 order. He told them he understood the law but did not agree with it. On August 21, 2003, he was served with a Superior Court of Justice order made pursuant to s. 102 of the HPPA, containing the same basic conditions as the s. 22 HPPA order.
14On August 30, 2003, Mr. Aziga was arrested on some of the charges now before us. It was upon his arrest that H.B. learned of Mr. Aziga’s HIV status. Mr. Aziga had not previously disclosed his sexual relationship with H.B. to public health authorities, and he continued to have unprotected sex with her even after the service of the s. 102 HPPA order, including on the day of his arrest.
15Seven of the women Mr. Aziga was charged with sexually assaulting were HIV-positive at the time of trial: S.B., H.C., S.C., B.H., J.C., L.C. and H.B. Expert evidence established that all of these women were infected with a statistically rare subtype of HIV known as Clade A, which represents between 1.7 and 2% of the HIV epidemic in Canada, but which, in the years immediately prior to the trial, appeared to be on the rise in the Hamilton area.
16Dr. Sandstrom, a qualified expert, created “phylogenetic trees” using the genetic sequencing of samples from these seven women and Mr. Aziga, and concluded that the infections of the HIV-positive complainants were genetically related, genetically distinct from other viruses detected in Canada, in certain cases nearly identical to Mr. Aziga’s Clade A infection, and that Mr. Aziga was the first to be infected. Dr. Sandstrom cautioned that the phylogenetic trees cannot be relied upon as direct evidence that Mr. Aziga infected these women, but this evidence does show that they share a common virus within the same “transmission cluster”.
17Among the HIV-positive complainants, several had more than one sexual partner who could hypothetically have infected them, but only H.B. (Count 5) and B.H. (Count 12) had penetrative sex with a person (other than Mr. Aziga) proved to be within the same transmission cluster.
18It is unnecessary to provide a detailed description of the sexual activity that Mr. Aziga engaged in with each complainant. Suffice it to say that he engaged in unprotected vaginal intercourse with all of the women, except M.D. (Count 6) and J.C. (Count 8). The necessary details about their sexual contact with Mr. Aziga are described below when considering the dedicated grounds of appeal pertaining to Count 6 and Count 8.
19In the cases of S.C. and A.L. (Counts 10 and 11), both women agreed to move from protected vaginal intercourse to unprotected vaginal intercourse after Mr. Aziga assured them that he did not have HIV. By the time of the trial, A.L. was HIV-negative and S.C. was HIV-positive.
20During his trial, Mr. Aziga’s defence counsel did not contest the sexual activity I have described, nor did they dispute that Mr. Aziga engaged in that sexual activity without disclosure of his HIV status. This tactical choice was entirely understandable given the crush of evidence against Mr. Aziga. Instead, the defence sought to avoid conviction on the two murder charges by arguing that the Crown had not established that Mr. Aziga infected the victims, thereby causing their death, and by relying on the testimony of health professionals to raise a reasonable doubt about whether Mr. Aziga had the requisite intent for murder. They sought to avoid conviction on the aggravated sexual assault charges by challenging the adequacy of the Crown’s case, including the competence of the investigation into whether Mr. Aziga caused the infections of the HIV-positive complainants. Mr. Aziga was not called as a witness in his own defence.
21At the end of the trial, the jury returned the verdicts now under appeal, and the trial judge sentenced Mr. Aziga as described. I will outline additional material facts relevant to each ground of appeal in the course of my analysis.
The Issues
22I will analyse Mr. Aziga’s grounds of appeal as follows:
A. Did the trial judge misdirect the jury relating to the two murder convictions (Counts 1 and 2)?
B. Did the jury arrive at an unreasonable verdict of guilt on Count 8, the aggravated sexual assault charge involving J.C., and did the trial judge fail to properly instruct the jury on that count?
C. Did the jury arrive at an unreasonable verdict of guilt on Count 6, the aggravated sexual assault charge involving M.D., and did the trial judge fail to properly instruct the jury on that count?
D. Should the verdicts be set aside because of developments in scientific knowledge?
E. Did a miscarriage of justice occur because of ineffective assistance of counsel?
F. Did the trial judge err in finding Mr. Aziga to be a dangerous offender and in imposing an indeterminate sentence, or should the sentence be set aside because of developments in scientific knowledge?
Analysis
A. Did the trial judge misdirect the jury relating to the two murder convictions (Counts 1 and 2)?
23I agree with the parties that the trial judge misdirected the jury relating to the two murder convictions. His charge effectively instructed jurors that they could convict based on findings about Mr. Aziga’s state of mind that are legally insufficient to prove the offence of murder. I would therefore allow this ground of appeal, set aside the murder convictions, and for the reasons that follow, substitute manslaughter convictions, each carrying a sentence of life imprisonment.
24The shortcomings in the trial judge’s charge on the requisite state of mind for murder can best be explained with the assistance of an attempted murder case, R. v. Boone, 2019 ONCA 652, 56 C.R. (7th) 432. Although the mens rea for murder and attempted murder differ, convictions for both offences can be based on an intention to cause death, and in Boone, Doherty J.A. explained that intention to cause death can take on two forms, direct intention and “oblique intention”.
25Direct intention exists if a person’s direct purpose in acting is to kill another. Oblique intention will exist if a person decides “to carry out some [other] purpose in the knowledge that killing is virtually certain to result”: Boone, at para. 52. In this latter situation, the intention to kill is oblique because although the person does not desire the death of the victim, they have accepted that the death of the victim is a virtually certain consequence of their act. The culpable intention is therefore derived not from their purpose in acting, but from their knowledge of the consequences of acting, whether those consequences are desired or not.
26Doherty J.A. stressed that when basing a finding of intention to cause death on the accused’s knowledge of the risk of death, it is not enough that the accused knows that death “may flow” or even will “probably flow” from their act: Boone, at para. 57. Only knowledge by the accused that death is virtually certain to follow will make oblique intent “clearly compatible” with direct intention, and therefore equally culpable with direct intention: Boone, at para. 62.
27It follows that oblique intent is distinct from the alternative mens rea for murder provided for in s. 229(1)(a)(ii) of the Criminal Code, which is also based, at least in part, on knowledge of the risk of death. Section 229(1)(a)(ii) defines murder to include cases where a person who causes death intended to cause bodily harm that they know is likely to cause death and is reckless whether death ensues or not (what I will call, for convenience, “direct intention to cause life-threatening bodily harm”). Clearly, the risk of death that the accused foresees must be higher to support a conviction based on oblique intention than it needs to be to support a conviction based on a direct intention to cause life-threatening bodily harm. This difference can be explained from the fact that, with the latter, the person directly intends to cause bodily harm, whereas the person convicted based on oblique intent does not set out to cause bodily harm, fatal or otherwise. As indicated, their culpability derives from their knowledge that by carrying out their purpose, whatever it may be, it is a virtual certainty that the victim will die.
28There are therefore important distinctions between these concepts. Fittingly, Boone established that, where the Crown relies on oblique intention to prove its case, the trial judge must instruct jurors on the law of oblique intention to properly equip them with the information needed to decide the case. This includes communicating to jurors that “they [can] only find the requisite intent based on the [accused]’s belief with respect to the consequence of death if they [are] satisfied that the [accused] believed that death was a virtual certainty”: Boone, at para. 79 (emphasis added).
29The parties agree, correctly in my view, that oblique intention, as explained by Doherty J.A. in the attempted murder context, is available in a murder prosecution. Mr. Aziga could therefore appropriately be found guilty of murdering S.B. and/or H.C even if he did not have a direct intention to kill or cause life-threatening bodily harm via HIV infection; it would be enough if he had an oblique intention to kill S.B. and/or H.C.
30Since the evidence did not suggest that Mr. Aziga had a direct intention to kill or to cause life-threatening bodily harm, the Crown’s focus during the prosecution was on Mr. Aziga’s knowledge of the risk of death – his oblique intention. The Crown’s theory, as put by the trial judge to the jury, was that jurors could infer from Mr. Aziga’s knowledge of the “dangers and risks” of HIV to the women that he intended to kill them or cause life-threatening bodily harm.
31Of course, the oblique intention to kill required to support a murder conviction could only properly be inferred from Mr. Aziga’s knowledge of the dangers and risks of HIV to the women if Mr. Aziga knew that their death was virtually certain to occur from his conduct, but the Crown never made this submission to the jury. Nor did the trial judge instruct the jurors that intention based on knowledge of consequences could not be found unless they were satisfied that Mr. Aziga knew that their death was a virtual certainty. Indeed, he provided jurors with no instructions on the legal requirements of oblique intention. Given the Crown’s reliance at trial on oblique intention, the Crown concedes on appeal that the trial judge erred. I agree.
32There was a further problem with the jury charge that requires mention. The trial judge gave jurors a direction commonly given in murder and attempted murder cases by telling them that they “may conclude as a matter of common sense that if a sane and sober person does something that has predictable consequences, that person usually intends or means to cause those consequences”. In Boone, Doherty J.A. held that the trial judge’s use of a “common sense inference” instruction was “inappropriate and potentially misleading”: at para. 86. He explained the problem by focusing on the fact that the expert evidence about the rates of transmission through anal intercourse that was presented “indicate[d] that neither [HIV] infection as a result of the sexual activity, nor eventual death from infection [could] be accurately described as ‘natural and probable consequences’”: at para. 90. The expert evidence in this case, which I will describe below, also confirmed a risk of infection too low for death to be described as a “natural and probable consequence”.
33I would add that even if the expert evidence had established that eventual death was a “natural and probable consequence” of HIV infection, the “common sense inference” would not suffice to ground oblique intention unless, on the evidence, the natural and probable consequence of death was virtually certain to occur. Because the language of the “common sense inference” instruction does not describe a level of certainty of consequence required to make out oblique intention, judges should avoid giving such an instruction where the Crown’s theory of intention rests on oblique intention.
34In my view, these are reversible errors. They provided jurors with a path to conviction that is not available as a matter of law, inviting a finding of guilt on a mental state that is insufficient to support a murder conviction. I would therefore allow this ground of appeal and set aside the murder convictions in Count 1 and Count 2.
35As previously indicated, I would substitute manslaughter convictions. Amicus correctly acknowledges that the evidence was “overwhelming” that Mr. Aziga committed aggravated sexual assault against S.B. and H.C. Nor is there any basis for questioning the jury’s finding that through these unlawful acts, Mr. Aziga caused the deaths of S.B. and H.C. The foundation for the manslaughter convictions therefore remains.
36The mandatory minimum sentences for murder fall with the murder convictions. On each of the substituted manslaughter convictions, I would sentence Mr. Aziga to life imprisonment. His offences were of sufficient gravity, and he displayed sufficient blameworthiness, to justify the imposition of the maximum sentence for manslaughter: R. v. Cheddesingh, 2004 SCC 16, [2004] 1 S.C.R. 433, at para. 1. As I will describe below when addressing Mr. Aziga’s sentence appeal, the illegal conduct that caused the death of S.B. and H.C. was reprehensible. 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. These women suffered horrible and despairing deaths because of his deplorable, self-regarding behaviour. 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.
37Before I leave the first issue, I need to address the submission of the interveners, the HIV & AIDS Legal Clinic Ontario and the Canadian HIV/AIDS Legal Network, urging us to instruct trial judges conducting murder trials arising from HIV transmission to give robust and comprehensive jury charges on the HIV-related medical evidence adduced in R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584. That evidence describes a low risk of transmission of HIV through vaginal intercourse. The interveners also asked us to instruct trial judges to give jury instructions relating to the real stigma, privacy concerns, and mental health challenges that HIV-positive people face. In requesting that we do so, the interveners stress the need to combat widespread misconceptions about the risks of transmission and to provide a real-world context for understanding the pressures that lead to non-disclosure. I do not wish to be taken as minimizing these important concerns, but I would not accept these submissions.
38First, it is unusual to direct trial judges to give instructions on factual matters not in evidence in the case at hand, and there is danger in doing so in this context, given the evolving nature of science.
39Second, as the Crown pointed out, the mens rea issues in a murder prosecution relate to the subjective state of mind of the accused, not the objective facts about the risks of transmission. Without evidence that objective facts reflect the state of belief of the accused, information about those objective facts would not assist jurors in making mens rea findings and could, in fact, be misleading.
40Relatedly, I repeat that the “common sense inference” should not be relied upon in oblique intent cases. Properly instructed jurors will be referred to the evidence in the case. This materially reduces the need to ensure that broad-based “common sense” misconceptions about transmission need to be addressed in this way.
41Finally, the pressures of HIV infection that discourage disclosure do not provide a defence to criminal charges linked to HIV non-disclosure. There is no need to instruct jurors on these pressures. Of course, these considerations may be relevant to sentencing provided they apply to the accused being sentenced. But this will be a matter of proof at the sentencing hearing.
B. Did the jury arrive at an unreasonable verdict of guilt on Count 8, the aggravated sexual assault charge involving J.C., and fail to properly instruct the jury on that count?
42Count 8 relates to Mr. Aziga’s sexual contact with J.C. J.C. testified that there was no vaginal intercourse between her and Mr. Aziga, only a single act of unprotected oral penetration. As indicated, J.C. tested HIV-positive after this occurred, but before testing positive she had vaginal intercourse with two men whose HIV status was not determined at trial. One of these men had a blister on his penis when having sexual relations with J.C.
The conviction is not unreasonable
43Amicus submits that Mr. Aziga’s conviction of aggravated sexual assault against J.C. is unreasonable because the finding that she had not consented to receiving oral penetration from Mr. Aziga depended on a finding that Mr. Aziga had obtained her agreement by fraud. Legally, fraud requires both a dishonest act and a deprivation: R. v. Cuerrier, [1998] 2 S.C.R. 371, at p. 428. In cases where the alleged fraud is linked to the risk of HIV infection, a deprivation will only occur if the sexual act carries “a significant risk of serious bodily harm” to the person deceived, which it will if there is a “realistic possibility of transmission of HIV”: Mabior, at para. 104.
44In Mabior, McLachlin C.J. confirmed that there will invariably be a realistic possibility of transmission of HIV through unprotected vaginal intercourse but did not address whether unprotected oral penetration meets that standard. There is no binding authority addressing whether unprotected oral penetration will invariably present a realistic possibility of transmission. To gain a conviction on Count 8, the Crown was therefore required to prove a realistic possibility of HIV transmission through unprotected oral penetration on the evidence, beyond a reasonable doubt.
45Amicus argues that the evidence presented in Mr. Aziga’s case fell short. It established only that it is theoretically possible to transmit HIV through unprotected oral penetration. Therefore, amicus argues, the verdict was not one that the jury, even if properly instructed, could reasonably have reached.
46I would reject this submission. I do not read the evidence of the expert witness, Dr. Haider, as amicus does. When his testimony is viewed in its entirety, a properly instructed reasonable trier of fact could interpret Dr. Haider to be saying that there is a realistic and not simply a theoretical risk of HIV transmission through oral penetration.
47To be sure, Dr. Haider acknowledged that “we don’t have really very good data to tell you that [oral penetration] is a defined mode of transmission,” and he did explain that only three or four isolated reports of HIV transmission by unprotected oral penetration have been identified. He further qualified that each of these isolated reports is subject to scientific uncertainty because these instances were not identified under controlled conditions in which other avenues of transmission could clearly be eliminated. However, Dr. Haider did describe oral penetration as a mode of transmission, albeit an “exquisitely unusual” mode. More importantly, he testified that unprotected oral penetration includes all of the scientifically required conditions for HIV transmission, as well as potential circumstances that could, on a case-by-case basis, increase the risk of transmission.
48Specifically, Dr. Haider explained that the virus can be transmitted through blood, semen, or pre-ejaculate, and enters the body of another by binding to CD4 lymphocyte cells that are expressed on the surface of some cells, including Langerhans cells which are present in the oral mucosa. He added that generally the risk of infection is known to be greater for the person receiving penetration than it is for the actor. He then noted in the specific context of oral penetration that the risk of transmission increases where there is micro-trauma such as dental disease, gum disease, injuries, or ulcers from sexually transmitted disease, and that the risk of HIV transmission varies with the general health of individuals. I am satisfied that this evidence provides an evidentiary foundation upon which a reasonable trier of fact could find an actual as opposed to simply theoretical possibility of transmission of HIV through oral penetration. [6]
49But is that possibility “realistic”? Mabior illustrates that even a passingly low risk of infection can qualify as a “realistic possibility of transmission of HIV”. McLachlin C.J. held that protected vaginal intercourse by a HIV-positive person with a detectable viral load qualifies even though the statistical risk of infection is extremely modest. Evidence before the court in Mabior showed that the risk of transmission through unprotected vaginal intercourse with a HIV-positive partner stood between 0.05% (1 in 2000) to 0.26% (1 in 384): at para. 97. It also showed that the use of a condom reduces the infection by a further 80%: at para. 98. It follows that the risk of infection for protected vaginal intercourse was between 0.01% and 0.05%, yet McLachlin C.J. accepted that this risk posed a realistic possibility of HIV transmission: at para. 99.
50I understand that Dr. Haider was unable to provide a comparable statistical risk for oral penetration in Mr. Aziga’s case, and that based on his testimony the statistical risk of contracting HIV through oral penetration would be even lower than it is for unprotected vaginal intercourse. But the point is that even an extremely unlikely possibility of transmission of HIV can qualify as a realistic possibility of transmission. There are two reasons for this. First, as McLachlin C.J. said in Mabior, at para. 86: “’Significant risk’ [measured through a realistic possibility of HIV transmission] … is informed both by the risk of contraction of HIV and the seriousness of the disease if contracted.” The more serious the harm, the lower the probability of transmission needs to be, and HIV presents a soberingly serious risk of harm. Second, as Doherty J.A. explained in Boone, at para. 129: “Even low statistical chances of transmission qualify as a realistic possibility of transmission, given that the uninfected partner never accepted any risk”. I am therefore persuaded that on the evidence in this case a finding that unprotected oral penetration presented a realistic possibility of HIV transmission is not unreasonable.
51I would therefore reject the submission that the verdict under Count 6 was unreasonable.
The jury was misdirected
52Although a properly instructed jury could have found a realistic risk of transmission, I agree with amicus that the trial judge misdirected the jury relating to whether there was a realistic possibility of transmission of HIV relating to J.C. The Crown’s theory of liability for aggravated sexual assault relating to J.C. was that the consent that she had provided to the sexual activity in question was vitiated by fraud through non-disclosure by Mr. Aziga of his HIV status. The trial judge was therefore obliged in his charge to equip jurors with the legal tools required to resolve whether fraud vitiating consent was established by the Crown. As Mabior makes clear, at para. 104, this vitiation can be established in an HIV non-disclosure case only if the jury is satisfied beyond a reasonable doubt that: (1) there has been non-disclosure of HIV infection; (2) the complainant would have refused consent had disclosure been made; and (3) the sexual activity in question posed a “realistic possibility of HIV transmission”.
53All three of these elements were live issues in Count 8, including element (3). Count 8 was based on a single alleged act of unprotected oral penetration, and, unlike unprotected vaginal intercourse, it is an open question whether unprotected oral penetration poses a realistic possibility of HIV transmission. The trial judge was therefore required to instruct jurors on all three of these elements for Count 8.
54The trial judge instructed jurors with respect to elements (1) and (2). Specifically, he told jurors that the Crown had to prove beyond a reasonable doubt: “That prior to having unprotected penetrative sexual activity with the complainant in question, Johnson Aziga did not advise her of his HIV positive status” and “That the complainant in question would have refused to have unprotected penetrative sexual activity with Johnson Aziga if she had been made aware of his HIV positive status.” Yet, the trial judge made no mention of element (3), whether unprotected oral penetration, the foundation for the allegation made by J.C., posed a “significant risk of serious bodily harm”. By focusing solely on non-disclosure and whether the complainant would have refused consent, the charge would have misled jurors into thinking that this was all that needed to be resolved to convict on this count, when that was legally incorrect. In my view, this non-direction was tantamount to a misdirection as “what was left unsaid was essential to an accurate instruction on the subject”: R. v. Wood, 2022 ONCA 87, 411 C.C.C. (3d) 495, at para. 132.
55The Crown argues in its factum that the failure to instruct the jury on whether the Crown proved that oral penetration posed a realistic possibility of transmission of HIV is not an error because the “realistic possibility of transmission test” was set out in Mabior, which the jury charge predates. I disagree. Mabior clarified the law and must be deemed to have always been the law. Mr. Aziga’s case is still in the system. He is entitled to the benefit of the law expressed in Mabior.
56In any event, even prior to Mabior, the decision in Cuerrier made clear that to vitiate consent, fraud by non-disclosure had to pose a “significant risk of serious bodily harm”. Yet the trial judge gave no direction to the jury on the issue of whether there was a risk of serious bodily harm. Even on the law as it was understood at the time of Cuerrier, the charge would have been inadequate.
57In oral argument, the Crown offered the alternative position that the trial judge was not obliged to direct the jury on this issue because in Mabior, at para. 82, McLachlin C.J. held that whether there is a “significant risk of serious bodily harm” is a question of law. In my view, this observation in no way absolves the trial judge from directing the jury on the “significant risk of serious bodily harm” element.
58McLachlin C.J. recognized in Mabior, at para. 82, that, to determine whether a sexual act involves “significant risk of serious bodily harm”, the trier of fact must make factual findings that are owed deference, absent palpable and overriding error. Only the question of “[w]hether those facts establish a ‘significant risk of serious bodily harm’ is a question of law”. Because the jury was the trier of fact charged with rendering a verdict on this charge, and thus had the responsibility of deciding whether to accept Dr. Haider’s evidence on the risk of HIV transmissibility for unprotected oral penetration, the jury needed to be properly directed on this live issue.
59The fact that an element of an offence has been identified as a question of law does not mean the Crown is not required to prove the factual basis for that element beyond a reasonable doubt. For example, the issue of “consent” is a question of law in sexual offence prosecutions, according to s. 273.1(1.2) of the Criminal Code. Yet triers of fact make the consent determination, which is the live issue in most sexual offence prosecutions.
60This was a jury trial. Mr. Aziga was entitled to have the factual findings made by the jury, not by the trial judge, who did not, in any event, purport to resolve this issue during the trial. Nor is it for us decide on the evidentiary record what facts we would have accepted to resolve whether there was a realistic possibility of HIV transmission for unprotected oral penetration.
61I would therefore allow this ground of appeal. I am persuaded that the trial judge’s misdirection left jurors without an adequate understanding of an essential element of the offence that they were required to resolve. I would order a new trial on Count 8.
C. Did the jury arrive at an unreasonable verdict of guilt on Count 6, the aggravated sexual assault charge involving M.D., and did the trial judge fail to properly instruct the jury on that count?
62Mr. Aziga had protected vaginal intercourse with M.D. (Count 6) and penetrated her orally without wearing a condom on several occasions. I agree with amicus that this ground of appeal must proceed on the basis that Mr. Aziga was convicted of aggravated sexual assault against M.D. based on the unprotected oral penetration that occurred. This is because the trial judge directed the jury with respect to each complainant: “If you are not satisfied beyond a reasonable doubt that unprotected penetrative sexual activity occurred between Johnson Aziga and the complainant … you must find Johnson Aziga not guilty”. This direction is incorrect because, given Mr. Aziga’s viral load at the time, he could have been convicted based on the protected penetrative intercourse that occurred, but that is not the instant point. If the jury followed this direction, as they are presumed to have done, the jury must have made its finding under Count 6 based on M.D.’s allegation that Mr. Aziga penetrated her orally while not wearing a condom. Accordingly, the appeal of the conviction on Count 6 must be analyzed on that basis.
63Amicus advanced the same arguments against this conviction under Count 6 that it did to Count 8, and the result should be the same. For the reasons expressed above, the conviction is not unreasonable; however, because the trial judge misdirected jurors relating to Count 8, which carried through to Count 6, I would also set aside this conviction and order a new trial.
D. Should the verdicts be set aside because of developments in scientific knowledge?
64Mr. Aziga’s trial was in 2008 and 2009. Scientific knowledge about the likelihood of HIV transmission through penetrative sex has progressed since then, as has medical treatment. Mr. Aziga argues that his convictions are based on outdated science and must be set aside in the interests of justice. I disagree.
65I accept that at the time Mr. Aziga was prosecuted and sentenced there was an open question about the risk of transmission posed by those who achieved supressed viral loads with ART and that it has since been established that the risk of transmission in such cases is negligible. This is a point I will return to below when considering Mr. Aziga’s sentence appeal. But this fact has no relevance to Mr. Aziga’s convictions because he committed the offences with an unsuppressed viral load. He was moderately infectious, and we have not been alerted to a material change in the risk presented by those who are moderately infectious. During Mr. Aziga’s trial, Dr. Haider testified that the risk of transmission of HIV through a single act of unprotected vaginal intercourse, the kind of sexual activity that grounds Mr. Aziga’s remaining convictions, was approximately 0.01% to 0.3%. This expert evidence was substantially similar to the evidence in Mabior where the risk of transmission of HIV by unprotected vaginal intercourse was estimated to be 0.05% to 0.26%. As Mabior makes clear, unprotected vaginal intercourse poses a realistic possibility of HIV transmission as a matter of law: at paras. 104-105. No evidence has been presented before us that requires a fresh consideration of this issue.
66Mr. Aziga’s also submitted that he was convicted because of systemic racism and the stigma that HIV infection carried in 2009. Suffice it to say that there is no evidence to support these claims. The evidence against Mr. Aziga was overwhelming.
67I would dismiss this ground of appeal.
E. Did a miscarriage of justice occur because of ineffective assistance of counsel?
68I would deny Mr. Aziga’s ineffective assistance of counsel appeal. To succeed on this ground of appeal, an appellant must first establish, on the balance of probabilities, the facts upon which the claim is grounded (the “factual component”): R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 49; R. v. Girn, 2019 ONCA 202, 145 O.R (3d) 420, at para. 92; and R. v. K.K.M., 2020 ONCA 736, at para. 55. An ineffective assistance of counsel appeal will succeed if, based on the proven facts, the appellant: (1) establishes that trial counsel performed incompetently by rebutting the strong presumption that trial counsel’s acts or omissions fall within the wide range of reasonable professional assistance or reasonable professional judgment, (the “performance component”), and (2) establishes that this incompetence caused a miscarriage of justice, including through procedural unfairness or by compromising the reliability of the verdict (the “prejudice component”). It is customary to analyse the prejudice component before addressing the performance component: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 28-29.
69In this case, there is no need to address the performance component. I would reject Mr Aziga’s ineffective assistance of counsel claim because he has not established the factual component of the prejudice component of the legal test. Mr. Aziga has made a litany of incompetence allegations against his two trial lawyers (“lead counsel” and “co-counsel”). The key allegations were ultimately given focus through close case management, and I will address them here, in convenient order.
Disciplinary History
70Mr. Aziga relies on the Law Society disciplinary histories of lead counsel and co-counsel as a basis for arguing ineffective assistance of counsel. He also argues that lead counsel was practising under supervision at the time of trial and did not disclose this to him. In addition, Mr. Aziga claims that lead counsel acted in conflict of interest by attempting to get him to provide a supporting letter to the Law Society, which he ultimately tricked Mr. Aziga into providing.
71None of these complaints can support a finding of ineffective assistance of counsel because Mr. Aziga has provided no evidence showing that any of these complaints affected counsel’s performance during the trial. The disciplinary history of his trial lawyers is serious, but that disciplinary history is unrelated to the conduct of Mr. Aziga’s trial. Trial counsel’s alleged failure to advise Mr. Aziga that he was practising under supervision is linked to Mr. Aziga’s trial, but even if this is true, Mr. Aziga has provided no evidence that either the supervision or the non-disclosure affected trial counsel’s performance. The same is true of the alleged conflict of interest relating to the letter of support. There is no indication that this alleged conflict of interest touched in any way on the quality of the defence that Mr. Aziga received. At most, this disciplinary history is background information relevant in adjudging the credibility or plausibility of other allegations about trial counsel’s performance, and I have taken this into account in the following analysis.
The Relationship Between Counsel
72Mr. Aziga alleges that rifts developed between his lawyers that led to incompetent performance. He claims that one of the lawyers who had originally been retained resigned from his case because of a dispute this lawyer was having with lead counsel relating to office rent. Even if this allegation was true, which I need not decide, the resignation of this lawyer from Mr. Aziga’s case occurred well before the trial and is irrelevant to the defence Mr. Aziga received. Nor has Mr. Aziga shown that his allegations of a rift between lead counsel and co-counsel affected their performance.
Impaired Ability of Counsel
73Mr. Aziga argues that his lawyers would have been distracted during trial by their outstanding disciplinary issues. He also alleges that lead counsel was ill during the trial. Indeed, Mr. Aziga went so far in his oral submissions before us to suggest that this lawyer required a mental health assessment. In Mr. Aziga’s view, this, and lead counsel’s inexperience in the criminal law, undercut the competence of his counsel and impaired their ability to defend him.
74I need make no findings as to whether these allegations are true. The competence of counsel is measured by performance, not based on experience levels or pressures that counsel may happen to be under at the time of trial. Mr. Aziga raises only four specific allegations about counsel’s performance that warrant attention, and I will turn my attention to those four allegations.
The Decision Not to Testify
75Mr. Aziga claims that his lawyers refused to permit him to testify during the guilt phase of his trial, and that he had wanted to do so. However, Mr. Aziga has not persuaded me on the balance of probabilities that counsel made this choice against his instructions.
76I agree with the Crown that when the record is reviewed in its entirety, including the extensive contemporaneous notes that counsel took during the trial, Mr. Aziga was in control of the defence. His level of participation during the trial was high, as he directed counsel on many aspects of the defence, including how to approach or question witnesses. It was not uncommon for Mr. Aziga to address the court directly and he did so with confidence. He also had no problem in making known his displeasure with counsel. He accumulated throughout this case a significant history of firing lawyers and filing complaints with the Law Society about his former lawyers. Notably, however, he made no complaints before the trial judge or the Law Society against his trial counsel. Indeed, he defended their conduct before the trial judge and attempted to retain lead counsel after the trial to advance a human rights complaint on his behalf. It is extremely unlikely that these things would have happened if Mr. Aziga believed that his lawyers had denied him his right to testify.
77Moreover, Mr. Aziga provided unbelievable evidence relating to the testimony he gave during the dangerous offender hearing. He claimed he had to “force [his] way” to the stand. This claim is belied by available documentation confirming that prior to the dangerous offender hearing he was being prepared for his testimony.
78In this context, lead counsel’s testimony that Mr. Aziga agreed all along that he would not be testifying at his trial is credible. It is entirely consistent with Mr. Aziga’s failure to complain, which would almost certainly have occurred had he really wanted to testify.
79Further, it is entirely plausible in this case that a tactical, collaborative decision would have been made not to have Mr. Aziga testify during the guilt phase of the trial. It was admitted from the outset that Mr. Aziga engaged in penetrative sexual activity with the complainants without disclosing his HIV status. His reasons for failing to disclose his HIV status, or for not taking ART, could provide him with no defence in law. Mr. Aziga did not have the expertise to offer testimony on the risks of infection. And the theory that he did not intend his conduct was based on his poor mental health, an issue that his expert witness, Dr. Gojer, planned to address. The defence was relying on gaps in the Crown’s case to defend Mr. Aziga, and his presence on the stand could very well have permitted the Crown to fill those gaps without adding material information that would assist his case.
80In rejecting Mr. Aziga’s claim that he was denied the choice whether to testify, I recognize that in the one note that exists between Mr. Aziga and trial counsel about whether he would testify at trial, Mr. Aziga says, “We lose nothing if I take the stand”. This note was generated, however, at the time that the Crown was challenging the admission of Dr. Gojer’s testimony on the basis that it lacked a factual foundation that Mr. Aziga’s testimony could have provided. When Dr. Gojer’s report was admitted into evidence without Mr. Aziga’s testimony, the need for his testimony evaporated.
81I have also considered the fact that trial counsel did not secure written instructions from Mr. Aziga confirming that he would not be testifying at his trial. In an ineffective assistance of counsel allegation based on the deprivation of the right to testify, this can be an important consideration. However, trial counsel’s testimony that it was understood all along that Mr. Aziga would not be testifying, is credible. In these circumstances it is easier to understand why counsel would not have a discrete occasion to formalize that decision.
82Simply put, I am not persuaded that Mr. Aziga has satisfied the factual component of his allegation that trial counsel deprived him of the right to testify.
Dr. Gojer’s Testimony
83Dr. Gojer provided evidence about Mr. Aziga’s mental health at the time of the offences in support of the defence theory that Mr. Aziga‘s psychological condition prevented him from forming the intention required to commit the offences with which he was charged. Mr. Aziga asserts that Dr. Gojer was called over his objection, and that his trial counsel were incompetent in presenting his incomplete report as defence evidence. I do not accept these claims.
84To be sure, the record shows that Mr. Aziga had issues with Dr. Gojer’s proposed testimony. He did not fully cooperate with Dr. Gojer by refusing to provide some of the information that Dr. Gojer was seeking so that he could complete the report. He also attempted to direct the content of Dr. Gojer’s report. However, Mr. Aziga actively participated in its preparation, and he was entirely familiar with the content of the report, when, on February 16, 2009, he signed a written consent to tender Dr. Gojer’s report as evidence. The fact that he wanted further editorial input into the report by specifying that his consent was “subject to the changes indicated and discussed with my lawyers” does not deprive this written consent of its relevance, since this signed consent is inconsistent with the claim that Mr. Aziga now makes.
85In any event, the Crown is correct in pointing out that Mr. Aziga can show no prejudice arising from the filing of an expert report that did not contain his required editorial changes. As a matter of law, expert witnesses have an obligation to the court to give objective and non-partisan opinion evidence: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 2. Mr. Aziga therefore had no legal right to control the contents of Dr. Gojer’s report. He cannot argue that the filing of the report without the changes he required rendered his trial procedurally unfair, nor has he demonstrated that there is any reasonable probability that had Dr. Gojer not provided evidence the result would have been different: Fiorilli, at para. 59. To be sure, given the crush of evidence against Mr. Aziga and the weak foundation for the expert opinion, Dr. Gojer’s evidence provided only a desperate foundation for an intent-based defence to the charges. However, there would have been no basis for that defence had Dr. Gojer’s evidence and report not been presented.
86I would therefore dismiss this ineffective assistance of counsel argument because of Mr. Aziga’s failure to meet either the factual component or the prejudice component of the test.
The Absence from Court
87Mr. Aziga was absent from the courtroom during a voir dire into the admission of the evidence of a defence expert, Dr. Rafal Kustra. Although he expressed his consent in open court to being absent during the voir dire so that he could be interviewed by Dr. Gojer, Mr. Aziga now claims to have been tricked by co-counsel into not attending this part of his trial, contrary to his right to be present provided for in s. 650 of the Criminal Code. There is nothing to this complaint. Mr. Aziga’s claim that the transcript does not accurately reflect his consent is not credible; he has not described how he was “tricked”, and he has identified no prejudice arising from his absence from court, which was authorized pursuant to s. 650(2)(b) of the Criminal Code. Dr. Kustra’s evidence was found to be admissible, so Mr. Aziga prevailed during the voir dire, and there is no indication of anything occurring in his absence that may have compromised the fairness of his trial.
The Inflammatory Submissions and Racist Stereotypes
88Mr. Aziga’s counsel made submissions to the jury that Mr. Aziga describes as inflammatory and prejudicial. In advancing this branch of his ineffective assistance of counsel argument, Mr. Aziga has focused primarily on trial counsel’s statement in closing submissions about a “glove” not fitting, which was a reference to O.J. Simpson’s trial. Mr. Aziga argues that given he is Black, and the victims were not, the allusion to a case in which a Black man was infamously acquitted of brutally killing a white woman would inflame racist passion against him. In his view, this was already a significant risk given that he is from Uganda, a country associated with the spread of HIV, and his own expert witness, Dr. Gojer, had painted him as damaged by his experiences in Uganda.
89The potential for racial stereotyping should never be minimized but I am far from persuaded that either counsel’s submission, or anything else that occurred during this well-conducted trial, could realistically have brought about a miscarriage of justice. As I have indicated, the evidence against Mr. Aziga was overwhelming and his defence was weak. That is why he was convicted, not racial prejudice or unwise submissions by his lawyers.
Conclusion on Ineffective Assistance of Counsel Appeal
90I would reject Mr. Aziga’s ineffective assistance of counsel appeal. For the foregoing reasons, he has failed to persuade me that it has merit.
F. Did the trial judge err in finding Mr. Aziga to be a dangerous offender and in imposing an indeterminate sentence, or should the sentence be set aside because of developments in scientific knowledge?
91Pursuant to s. 759(1) of the Criminal Code, a person designated as a dangerous offender may appeal on any question of law or mixed fact and law. In R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 23, the Supreme Court held that appellate review of a dangerous offender designation “is concerned with legal errors and whether the dangerous offender designation was reasonable”. While deference is owed to the sentencing judge’s factual findings, an appellate court’s review of the designation is “somewhat more robust” than a regular sentence appeal: at para. 26.
92Mr. Aziga has not persuaded me that the trial judge committed legal errors or made unreasonable findings in declaring him to be a dangerous offender, and in imposing an indeterminate sentence of imprisonment. I see no basis to interfere with these decisions.
93The trial judge was satisfied that Mr. Aziga met the statutory requirements for a dangerous offender designation under ss. 753(1)(a)(i) and 753(1)(b) of the Criminal Code. This determination was solidly grounded in the evidence, and it was arrived at by the trial judge through an appropriate application of the correct legal principles after defence counsel made the available arguments on Mr. Aziga’s behalf. Mr. Aziga’s crimes – all of them “serious personal injury offences” – were horrendous. Despite warnings and repeated efforts to educate Mr. Aziga about the risks he posed to others – which the educated and intelligent Mr. Aziga clearly understood – he deliberately offended repeatedly, even after he was ordered not to engage in penetrative sex, and even after he had strong reason to believe that he had infected others. He not only failed to disclose his HIV status. He provided “deceitful assurances” to at least two of his sexual partners that he was free of infection so that he could get his way. His reasons for refusing ART during the offending period were self-regarding. Knowing that he was not taking medical steps to make himself less infectious, he provided his victims with no warning.
94In finding beyond a reasonable doubt, against this backdrop, that there is a present likelihood that in the future Mr. Aziga would commit similar offences endangering the safety and well-being of others by causing death or injury through a failure to restrain his behaviour and his sexual impulses, the trial judge canvassed the wealth of evidence before him. He was fully aware of Mr. Aziga’s life challenges and the cognitive decline he was experiencing after a life of impressive achievement, but found, as he was entitled to do, that this did not materially reduce Mr. Aziga’s moral fault or the risk he presented. The evidence confirmed that Mr. Aziga showed narcissistic and paranoid behaviour and had demonstrated little remorse for his conduct. He continued, during his testimony, to deny that he infected any of his victims, including S.B. and H.C. who lost their lives because of him. Instead of accepting responsibility, he painted himself as a victim who has been demonized and ostracized.
95The trial judge accepted Dr. Klassen’s evidence that, when implored by Hamilton Public Health to disclose his HIV status to his proposed sexual partners before engaging in penetrative sex, Mr. Aziga never said that he would have difficulty in disclosing his HIV status because of his culture or religious upbringing. He explained his non-disclosure to his probation officer, in part, on the fact that disclosure would have limited his opportunities for companionship. He spoke disrespectfully about his victims to Dr. Klassen, saying that they were “not his type” but he felt compromised because of his HV status and a congenital deformity. He said he was engaging in “survival sex”. And he callously erected roadblocks to partner notification that could have assisted in preserving the health of his victims.
96The evidence painted Mr. Aziga as lacking in moral sensibility. The trial judge recognised that standardized tests for sexual violence and psychopathy had limited use in Mr. Aziga’s case because he was an “atypical offender”, and because the nature of the offences he committed were out of the ordinary. But this did not prevent Dr. Klassen from expressing the confident and reliable opinion that Mr. Aziga presented a substantial risk to the community at the time of sentencing. Dr. Klassen gave a thorough explanation for that conclusion. He said that, despite a likely decline in libido as individuals age, highly sexualized people like Mr. Aziga are likely to be sexual when they are older. He testified Mr. Aziga’s “personality structure, his life stresses, the broad victim pool and likely difficulties with treatment, and risk management due to mistrust and need for control are likely to remain in the foreseeable future.” The trial judge was entitled to accept this testimony.
97Similarly, the trial judge was entitled to find that at the time of sentencing there was no “reasonable possibility of eventual control of [Mr. Aziga’s] risk in the community”: at para. 141. The trial judge was aware that Mr. Aziga professed in his testimony that he had come to recognize the need for ART, and that he had been taking ART under supervision since 2005 with the result that his viral load was undetectable at the time of sentencing. However, the trial judge did not believe Mr. Aziga’s assurances that he would, in the future, continue his ART, advise his sexual partners, or that he would use condoms unless a partner was a “risk taker” who agreed to unprotected sex. 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. On this reasonable basis, the trial judge concluded that Mr. Aziga must be segregated from the community by the imposition of an indeterminate sentence on Counts 3 through 13.
98I agree with the trial judge’s sentencing determinations, and I am persuaded that they remain fit and necessary dispositions, even though I would set aside 2 of the 11 aggravated sexual assault convictions, and even after considering that one fewer of the victims was HIV-positive at trial than the trial judge believed. Given the broad-ranging and compelling explanations the trial judge offered for the conclusions he reached there is no realistic possibility that the outcome would have been different had these errors not occurred.
99Nor could these sentencing determinations realistically be affected by the proposed fresh evidence. This evidence, reduced to an agreed statement of facts, establishes, in material part:
“2. The [Public Health Agency of Canada] concluded [in a 2018 Report] that there is a negligible risk of sexually transmitting HIV when an HIV-positive sex partner maintains a suppressed viral load of less than 200 copies/mL (as measured on consecutive tests every 4 to 6 months) as a result of adherence to antiretroviral therapy.
- The phrase “negligible risk” as used in the PHAC Report, means there is a potential for transmission because of an exchange of bodily fluids, but the efficiency of HIV transmission is greatly diminished and there are no confirmed reports of transmission. A statistical risk of 0.00-0.28 transmissions per 100 person-years could not be ruled out.”
100As I have indicated, at the time he was sentenced Mr. Aziga had an undetectable load because of ART suppression. The trial judge stated, at para. 125, there was no evidence in the trial record “that an undetectable viral load means that the offender is noninfectious”. So, in the abstract, fresh evidence showing that a person with an undetectable viral load presents only a negligible risk of transmission is potentially significant. However, I am satisfied that in the circumstances of this case, the proposed fresh evidence does not have the cogency to affect the result the trial judge arrived at. The fact that ART could materially remove almost all of the risk from Mr. Aziga provides little comfort given that the trial judge soundly rejected Mr. Aziga’s assurance that he would continue ART therapy if released, and I share that doubt. Given this, the fresh evidence described above could not have affected the result and is therefore technically inadmissible.
101During the oral hearing, Mr. Aziga suggested that within two months there will be injectable long-lasting ART that would permit easy compliance monitoring, and that he would gladly take those injections. There is no evidence before us about this future change in medication so we cannot consider it. Its implications, if it does become available to Mr. Aziga, can be determined by the Parole Board.
Conclusion
102I would allow Mr. Aziga’s conviction appeal in part. I would set aside the murder convictions in Counts 1 and 2 and substitute verdicts of manslaughter. I would sentence Mr. Aziga to concurrent sentences of life imprisonment on each of those counts. I would also set aside Mr. Aziga’s convictions of aggravated sexual assault on Counts 6 and 8 and order a new trial on each count. I would deny his appeal on the remaining eight counts of aggravated sexual assault and the count of attempted aggravated sexual assault.
103I would also deny Mr. Aziga’s sentence appeal. I would find that Mr. Aziga remains a dangerous offender subject to an indeterminate sentence on the remaining eight counts of aggravated sexual assault and the count of attempted aggravated sexual assault, to be served concurrently to the concurrent life sentences on the two manslaughter convictions.
Released: January 10, 2023 “P.D.L.” “David M. Paciocco J.A.” “I agree. P. Lauwers J.A.” “I agree. B. Zarnett J.A.”
Footnotes
1HIV stands for “Human Immunodeficiency Virus”.
2All references to “Counts” in this judgment are to the corresponding charges in the Indictment on which Mr. Aziga was prosecuted.
3AIDS stands for “Acquired Immunodeficiency-Syndrome”.
4The Court has been greatly assisted by the work of amicus curiae.
5Mr. Aziga was charged with murder and aggravated sexual assault relating to S.B. and H.C., hence two counts for each woman. All of the other charges were aggravated sexual assault charges, with one count for each of the remaining complainants.
6The Crown argued that the fact that J.C.’s HIV infection was genetically related to Mr. Aziga’s uncommon Clade A infection could support an inference that he infected J.C., and that this would be further circumstantial evidence of a realistic possibility of HIV transmission through unprotected oral penetration. In my view, it is unnecessary to express an opinion on this submission.