Canada: Aziga's treatment in prison is 'cruel and unusual' argue lawyers

Is a person with HIV a potential lethal weapon? That's what the Crown is arguing in the pre-trial hearing of Johnson Aziga - who has been in custody since Aug. 31, 2003 awaiting the first ever sexual HIV transmission murder trial which finally takes place in a Toronto suburb this October.

Mr Aziga's lawyers, David Bagambiire and Selwyn Pieters, argued this week that Mr Aziga's treatment in prison has been cruel and unusual and that have breached the Canadian Charter of Rights and Freedoms – their client has been kept in solitary confinement for 23 hours a day and for months at a time, and that he did not always access to antiretrovirals.

However, the Crown argued that since Mr Aziga chose to defend himself from attacks by other prisoners by biting, and that "the misconduct of biting could result in the transmission of a virus that causes a serious, chronic and fatal disease for which there is no cure," this is not cruel and unusual punishment because it is not "so excessive as to outrage standards of decency."

Assistant Crown attorney Karen Shea argued...that medical isolation was necessary because unlike "shanks" or other knife-like weapons an inmate might fashion to defend himself, "Mr. Aziga has a lethal weapon in his arsenal that can never be taken away, and that's his HIV, which has potentially fatal consequences."

Although there have been several case reports of HIV transmission via a bite, these are reassuringly extremely rare and would require fresh blood in the saliva of the HIV-positive person as well as an extremely high viral load – usually seen during primary infection or extremely advanced HIV disease.

The criminal justice system is completely over-reacting to the threat of HIV-positive individuals spitting and biting, and, in my opinion this is "so excessive as to outrage standards of decency."

I'm certainly outraged!

Full story from The Hamilton Spectator, below.

'There is simply no right to bite'

Expert says jailhouse isolation of HIV murder suspect isn't breach of charter
July 25, 2008
Barbara Brown
The Hamilton Spectator

It is not "cruel and unusual punishment" to medically isolate an HIV-positive inmate who bites another prisoner in a jailhouse brawl, says a government lawyer.

Michael Doi, a constitutional expert with the Ontario Ministry of the Attorney General, was responding to lawyers for Johnson Aziga, 52, who argued this week that their client's treatment in Hamilton-Wentworth Detention Centre awaiting his much-delayed double-murder trial has been grossly unfair, jeopardized his health and violated the Canadian Charter of Rights and Freedoms.

Aziga says he has been the victim of unprovoked attacks by other inmates and on at least two occasions was forced to defend himself by any means possible, including biting.

His lawyer, David Bagambiire, said the detention centre responded in each instance by charging the victim of the assault with a misconduct and extending Aziga's institutional sanction -- 10 days of solitary confinement -- to several months of medical segregation.

Bagambiire claims Aziga was stigmatized by his HIV status and notoriety in the media, which has resulted in unduly harsh punishments by correctional staff and violent attacks from other inmates.

Doi countered that locking Aziga in his cell 23 hours a day for months at a time was a rational and necessary response to the public health risk posed by his biting.

"There is simply no right to bite," Doi said. "But in Mr. Aziga's case, the misconduct of biting could result in the transmission of a virus that causes a serious, chronic and fatal disease for which there is no cure."

Aziga has been in custody awaiting trial since Aug. 31, 2003. He faces two counts of first-degree murder and 13 counts of aggravated sexual assault for allegedly failing to disclose to 13 women who were his sexual partners that he carried the virus that causes AIDS.

Two Toronto women allegedly infected by the accused man have died. Five others have tested positive for the virus. Aziga is believed to be the first person in Canada to be charged with murder in an HIV-transmission case.

Defence lawyers Bagambiire and Selwyn Pieters are seeking relief for their client under the charter, arguing not only his unfair treatment but also a failure by his custodians to consistently provide his medications for HIV (human immunodeficiency virus).

Should they persuade Superior Court Justice Thomas Lofchik that Aziga's constitutional rights were violated, but fail to convince him to stay the charges, the lawyers seek to have Aziga released on bail pending a verdict in his Oct. 6 trial. Failing that, they're asking the court to impose a reduced sentence if Aziga is ultimately convicted on the charges.

Dr. Anita Grewal, a local physician who treats inmates at the jail, was questioned by Bagambiire about what medical protocol or regulation dictated what should be done when a HIV-positive inmate has bitten another prisoner.

"To my knowledge, there is no specific document," Grewal said. "In fact, this is sort of a new -- let's say weapon or way -- of hurting other people. So there are no specific documents for this."

Assistant Crown attorney Karen Shea argued the application ought to be dismissed because it failed to meet the threshold for cruel and unusual treatment set out in the charter. The law states the treatment must be "so excessive as to outrage standards of decency."

Shea argued that medical isolation was necessary because unlike "shanks" or other knife-like weapons an inmate might fashion to defend himself, "Mr. Aziga has a lethal weapon in his arsenal that can never be taken away, and that's his HIV, which has potentially fatal consequences."

Lofchik has reserved his ruling until Aug. 6.