Six-month-long trial was slow and costly exercise in justice
From Monday's Globe and Mail
The actual case of Johnson Aziga, the Ugandan immigrant who this weekend
became the first HIV-positive man in Canada to be convicted of murder for
recklessly spreading the virus, was never that complicated.
52-year-old Hamilton man was found guilty on Saturday of two counts of
first-degree murder, 10 counts of aggravated sexual assault and one count of
attempted aggravated sexual assault. All the victims were former sexual
partners. Seven of as many as 20 women in Southwestern Ontario who named him
as a sexual contact were infected by him; two of them died of AIDS-related
The prosecution case against Mr. Aziga was always strong if not
overwhelming - deathbed statements from the two deceased women and testimony
from the living who had slept with him (including four others who either had
insisted on him using condoms or were just lucky enough to dodge the
bullet), all of whom said he had never told them he was HIV-positive or had
lied outright about his status; expert evidence about the rare-in-Canada
strain of HIV Mr. Aziga carried; testimony from Hamilton HIV doctors and
public-health officials that Mr. Aziga understood the disease and was keenly
interested in the state of his own health, if no one else's.
The trial was never expected to last longer than between six to eight
weeks, on the low end for a murder case in the modern Canadian justice
But what is new, now reportable with the verdict, and outrageous about the
case is the complex story of Mr. Aziga's defence.
He was first arrested in August of 2003, and committed to stand trial about
two years later, with the original trial date set for June 5, 2006. Yet it
wasn't until another two years-plus had passed that finally, last October, the
In all that time, the trial was adjourned four times, each time at the
request of Mr. Aziga or his lawyers.
But for Ontario Superior Court Judge Tom Lofchik, the trial might have been
adjourned a fifth time.
Last September, Judge Lofchik's patience finally ran out, and in a decision
rejecting yet another adjournment, he snapped that the time had come for him "to
assume responsibility for the conduct of this case and for seeing that it is
By then, it hardly could have been deemed expeditious by any definition.
Mr. Aziga veritably tore through lawyers, hiring and firing at least four
different counsels or sets of counsels.
And the pair he ended up with at trial was, to put it mildly, hardly a dream
Perhaps most egregiously, the Ontario Ministry of the Attorney General picked
up the tab for the trial team - ironically, because the department is
simultaneously trying to recover fees it paid one of those lawyers, Munyonzwe
Hamalengwa of Toronto, in the now-notorious Richard Wills case which recently so
Mr. Wills is a former Toronto Police officer who was convicted of
first-degree murder in the slaying of his former lover, Linda Mariani, on Oct.
31, 2007. Several months later, Ontario Ombudsman André Marin condemned "the
obscene cost" of Mr. Wills's million-dollar defence.
Ministry documents show that earlier this year, the department moved for
what's called "assessment," meaning an independent officer will review the bills
submitted by Mr. Wills's trial lawyers, Mr. Hamalengwa and Raj Napal. If they
are found to be unreasonable, the lawyers could be ordered to repay funds.
Mr. Hamalengwa, who was paid $677,604 for work he and a junior lawyer did on
the Wills case, consented to the assessment; Mr. Napal is opposing it.
His partner at trial, Davies Bagambiire, was found guilty of professional
misconduct by the Law Society last year for charging unreasonable or excessive
fees that weren't disclosed in a timely way to two clients and for failing to
give the clients an accounting. According to a report of the Law Society
tribunal, he was suspended for two months (the suspension ended last May),
ordered to repay $100,000 to the lawyers' compensation fund as well as Law
Society costs of $5,000; he will remain under supervision until next year.
For almost four years, the cost of Mr. Aziga's defence was borne by Legal Aid
Ontario, the independent but publicly funded agency that administers the
province's legal-aid program.
But in January last year, when Mr. Aziga fired yet another lawyer and caused
another delay, the agency pulled the plug on any further funding. The
Attorney-General's department reluctantly stepped in and agreed, as Judge
Lofchick ordered, to foot the bill for what's called a Rowbotham order.
The agreement called for two lawyers, paid Legal Aid rates, who would be
compensated for up to 600 hours in total.
But in August last year, essentially on the eve of trial, Toronto lawyer
Selwyn Pieters withdrew from the case, leaving Mr. Bagambiire, who had never
before represented anyone accused of murder and is a specialist in medical
malpractice and immigration cases, alone at the helm.
Mr. Bagambiire attempted to get funding for an additional 1,000 hours and
also sought to have the case funded as a so-called Fisher-type application,
which would have required the Attorney-General's department to negotiate richer
fees with him.
Judge Lofchick refused to do that, and instead ordered the ministry to pay
for an additional 210 hours of preparation time because of the complexity of the
forensic evidence and also another 60 hours so the new co-counsel, who turned
out to be Mr. Hamalengwa, could "get up to speed" on the case.
The greatest, and cruellest, irony is that the Attorney-General's department,
which ended up paying for Mr. Aziga's lawyers, was also paying his salary much
of that time.
The 52-year-old had worked on and off for various Ontario government
departments since 1995, but in the year 2000, he moved to the Attorney-General's
ministry as a research analyst.
And a civil servant who testified at the trial said that Mr. Aziga was
employed there - and presumably paid much of that time - until August of 2007,
though he was in custody from the moment he was arrested.
Oh, and because of various delays, most if not all sought by the defence, the
trial didn't take six to eight weeks, but rather six months.
If Bagamiire really needed 1000 hours he would not have
accepted the 210 hours plus 60 as ordered by Justice Lofchick, he would have
asked to have himself removed as he genuinely believed he could not provide the
As usual, Christy has written another beautiful article that very accurately
describes Ontario's dysfunctional court system.
- Posted 06/04/09 at 11:06 AM EDT