New & Notable: Dangerous Indeed

Johnson Aziga was charged with two counts of first-degree murder, ten counts of aggravated sexual assault and one count of attempted aggravated sexual assault. These charges arose out of the offender’s decision to engage in unprotected penetrative sex with 11 separate victims while he was HIV positive. Two of his victims died from malignancies associated with HIV and another five of the victims were infected with the virus [para 4].

The offender was convicted of these offences after trial and sentenced to the mandatory life sentence with a minimum of 25 years before being eligible for parole. The Crown further sought a dangerous offender designation.

Lofchik J considered and ruled upon this application: R v Aziga, 2011 ONSC 4592. Two points were raised for consideration on the application.

First, the offender argued that there was no evidence that he has demonstrated an inability to control his sexual impulses. In rejecting this argument Lofchik J held that:
There is no question on this application that the predicate aggravated sexual assaults and attempted aggravated sexual assault of which the offender has been convicted constitute "serious personal injury offences". I am also satisfied that the convictions for aggravated sexual and attempted aggravated sexual assault were the result of a pattern of repetitive behaviour by the offender showing a failure to restrain his behaviour.

I disagree with the argument of the defence that there is no evidence that the offender by his conduct has shown a failure to control his sexual impulses. The aggravated sexual assault and attempted aggravated sexual assault convictions against the accused are the result of his fraud (i.e. failure to inform his sexual partners of his positive HIV status) enticing the complainants to engage in sexual relations with him in order that might obtain sexual gratification. This in my view is no different than if he had used force to obtain sexual gratification from the complainants [paras 117-118]; [emphasis added].

Second, the offender also argued that since he would not be in the community for at least 25 years the dangerous offender should not be made; it was not necessary as, upon release, he would be an elderly man with a reduced libido and therefore pose a minimal risk. In assessing and ultimately rejecting this argument Lofchik J offered guidance on the timing of the risk assessment to be made on a dangerous offender application.
The elephant in the room of course is that the offender has appealed his first degree murder conviction and the possibility exists that the life sentence may not stand. If he were sentenced to a determinate sentence for the sexual assault convictions, given that he has been incarcerated since 2003 he would be eligible for parole almost immediately. I therefore intend to approach the dangerous offender application on the basis of the sexual assault convictions without regard to the consequences of the murder convictions.
In any event, I am of the view that in an application such as this a judge must consider whether there is a present risk of the offender reoffending. Section 753 does not contemplate a judge considering whether there is a risk of the offender reoffending at some hypothetical time in the future after the offender is released on parole. Such a task would be impossible. I base this conclusion on the analysis of Section 753(b) of the Criminal Code in relation to dangerous offender applications by the Supreme Court of Canada and in R. v. Currie, [1997] 2 S.C.R. 260. Lamer C.J. noted, at para. 22, that, "As long as the offender's past conduct, whatever conduct that might be, demonstrates a present likelihood of inflicting future harm upon others, the designation is justified." [Emphasis added]; [para 122].
 
DG Mack
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