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Commentary

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.

The 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 cancers.

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 system.

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 trial started.

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 expeditiously concluded."

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 team.

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 scandalized taxpayers.

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.

cblatchford@globeandmail.com

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