Potential HIV Menace to Ghanaians: A Canadian Perspective

There is a concept under international law termed the ' Responsibility to Protect' which places a duty on every state to act, where the circumstances require, to protect its citizens and those within its territory, and a persistent failure to do so is enough warrant for an intervention by the comity of nations. At the root of this concept is a recognition of the powers of governments and the collateral need for them to act in the best interest of the public.

Where there is a functioning and effective government that is alive to its duties to protect its citizen, the legislature enacts laws in response to proposals by the executive or its own members to remove any noted mischief or to avoid an anticipated menace to its society. Laws are passed as a means of social engineering and to provide structures that minimize noted any mischief that may represent a menace, if not curbed. The HIV or Aids disease and the manner by which some people get infected has the potential of becoming a menace if not checked. There is evidence from other jurisdictions that suggests a rising trend whereby, some of those who are informed that they carry the disease undertake a vengeful course by deliberately infecting other unsuspecting members of the public. It is this mischief that I will subsequently address.

A 54-year-old Ontario man from Hamilton, Johnson Aziga, was convicted of intentionally infecting seven women with the deadly HIV disease.  Aziga was convicted of two counts of first-degree murder and 10 counts of aggravated sexual assault for not informing his partners of his disease. The murder convictions were for the deaths of two of his sex partners who died of complications of AIDS. Aziga admitted to not informing his sex partners of his condition, even though he had been aware of his status since the diagnosis in 1996 and after receiving a public-health order to inform his sexual partners before they consent to have sex. During his 2009 trial, the Crown described Aziga as a callous and arrogant person who lied about his HIV status. He initially claimed that authorities couldn't prove he was responsible for infecting the women.

Under the Criminal Code of Canada, it is a crime not to tell your partner if you know you are HIV positive.

Aziga would have been eligible for parole after serving 25 years in prison following his conviction in 2009. However, the court in August 2011 declared him a “dangerous offender.” Canadian criminal law & procedure allows the prosecution to seek such a designation during sentencing where there is a high risk that the convict will commit violent or sexual offences in the future. As a consequence of the “dangerous-offender” designation, the Canadian government can legally keep Aziga, a Ugandan immigrant, behind bars indefinitely, a fate reserved for the most violent criminals and sexual predators.

The court was not swayed by his bizarre pledge that if he were ever released he would have the word tattooed on his palms to serve as a warning to potential lovers.

Outside the courtroom, Crown prosecutor Karen Shea touched on an important element in the management of HIV infection by stating that the women, who are currently surviving the infection resulting from the wicked conduct of Aziga, are experiencing side effects from the fact they didn't know about their infection in a timely fashion. This has directly affected the progress of the disease since there were modern remedies for important interventions when the disclosure is immediately made.

But the purpose of the Criminal Code provision is not only to ensure that women who are unfortunately infected are informed of it in a timely fashion to enable them undergo remedial treatment. The law, fundamentally, touches on the concept of consent to help the Prosecution succeed in court, as it must prove beyond reasonable doubt that the accused person had both the mental element ( mens rea ) of the offence and the accompanying act ( actus reus ). Because the court interprets Criminal Code provisions strictly with any technical difficulty inuring to the benefit of the accused, Parliament must make provision for that particular type of crime by proscribing it and attaching penalties for engaging in the proscribed conduct.

The legal issues involved in this area of law were illustrated a case on appeal to the Supreme Court of Canada from the province of Newfoundland and Labrador entitled R v Williams (2003) SCC 41.

Harold Williams had an 18-month relationship with a complainant beginning in June 1991. On November 15, 1991, he learned that he had recently tested positive for HIV but the complainant tested negative shortly thereafter. Williams kept the complainant in the dark about his HIV condition as well as the fact that he had been tested, given counselling on at least 3 different occasions by 2 doctors and a nurse about HIV, its transmission, safer practices and his duty to disclose his HIV status to sexual partners. He continued to practice unprotected sex with the complainant until their relationship ended in November 1992 and thereafter she tested positive for HIV in April 1994. At trial, Williams was convicted of aggravated assault and common nuisance. However, the Court of Appeal allowed his appeal against the conviction for aggravated assault, substituting a conviction for attempted aggravated assault. In dismissing Williams' appeal, Binnie J, one of the prolific writers on the current bench of the Supreme Court of Canada, writing for the unanimous court, noted that an accused who fails to disclose his HIV-positive status cannot be convicted of an aggravated assault endangering life in circumstances where the complainant could already have been HIV-positive. He was of the view that Williams could not properly be convicted of actual aggravated assault, and though he acted with a shocking level of recklessness and selfishness, the Prosecution could not show that sexual activity after November 15, 1991 harmed the complainant, or even exposed her to a significant risk of harm, because at that point she was possibly, and perhaps likely, already HIV-positive. The mens rea of the offence had been proven beyond a reasonable doubt, but the Prosecution was unable to prove an essential element of the actus reus , namely that Williams' sexual conduct, after learning that he had tested positive for HIV, risked endangering the complainant's life. The court held that medical evidence indicates that a single act of unprotected vaginal intercourse carries a significant risk of HIV transmission and it was therefore, at least, doubtful that the complainant was free of HIV infection on November 15, 1991 when Williams first discovered, then decided to conceal, his HIV status. The complainant tested negative for HIV shortly thereafter, although the expert evidence was that at that date she may well have been infected with HIV but not yet had time to develop the antibodies that would disclose her condition in the test.

Using sound legal principles, and proceeding in a methodical fashion, as is characteristic of Binnie J, he reasoned that, to constitute a crime, the actus reus and the mens rea or intent must, at some point, coincide, and before November 15, 1991, there was an endangerment but no intent; after November 15, 1991, there was an intent but at the very least a reasonable doubt about the existence of any endangerment. In this case, there was a reasonable doubt that the life of the complainant was capable of being endangered after November 15, 1991 by re-exposure to a virus that she had likely already acquired. Williams' acquittal on the charge of aggravated assault must therefore be affirmed.

Binnie J accepted the better principle of convicting Williams for attempted aggravated assault, as the intent, mens rea, to commit the crime of aggravated assault is established for the period after November 15, 1991. Though, as to the actus reus , failure to prove endangerment of life was fatal to the prosecution, it was not fatal to a conviction for attempted aggravated assault. Clearly, Williams took more than preparatory steps. He did everything he could to achieve the infection of the complainant by repeated acts of unprotected intercourse for approximately one year between November 15, 1991 and November 1992, when the relationship ended. The reasonable doubt about the timing of her actual infection was unknown to both partners. These facts, established in the evidence, are sufficient to prove the attempt.

It is important to note that an accused need not infect a partner under the circumstances before being convicted under Canadian law. In R v Cuerrier [1998] 2 S.C.R. 371, Henry Gerard Cuerrier, the HIV-positive accused had engaged in unprotected sex with 2 complainants without disclosing his infection. None of the complainants became infected with HIV. In ordering a new trial following acquittals by the trial judge, which were upheld by the Court of Appeal, Cory J, writing for the Supreme Court of Canada stated that 'Without disclosure of HIV status there cannot be a true consent. The consent cannot simply be to have sexual intercourse. Rather it must be consent to have intercourse with a partner who is HIV-positive.'

Under Canadian law, it is a crime for an HIV-positive person to knowingly engage in sexual activity that is capable of endangered the life of the other partner but hides that knowledge. If the intercourse with the accused had put a complainant at significant risk to the health, this was sufficient to vitiate their consent to sexual intercourse.

Canadian law, in this regard has been responsive to the exigencies of our time and has, through provisions under the Criminal Code, crafted laws for the protection of the public, citizen or not. The purpose of the law is to prevent the abuse of the partner's trust, obtain consent by deceit in circumstances that poses a significant degree of risk to health.

What is the legal position in Ghana? Criminal provisions are strictly applied by the courts because of its effect on the liberty of the accused and the associated risk of convicting the innocent. This is because, no matter how despicable a person's conduct, that person must not be sent to court to face prosecution based on forced legal arguments designed to 'catch' that person at all cost, whether fair or foul, but preferably foul. A clue must take from Justice Binnie's approach and the advancement of sound arguments based on proper legal principles. Criminal law provisions must not be given strained meanings by doing violence to the language in order to secure a conviction, for it is said that, it is better to let a hundred accused persons go free than to convict one innocent one. For its part, Canada has used the Criminal Code provision on 'aggravated assault' in a manner that is sustainable under Canadian jurisprudence to address with this mischief.

Why have I gone through all this length to lay out fact-situations and legal principles? A matter that came to my attention recently premised my concern on this issue. A Canadian resident asked for my advice following a short visit her husband paid her from Ghana. During the course of this visit, circumstances required the man to undergo certain medical tests wherein it was revealed that he was HIV-positive. The counselor handling his case was surprised when he subsequently showed up for a scheduled consultation with his wife but had still not informed the poor woman of the situation despite his earlier promise to do so. The conduct and attitude he displayed suggested that his HIV status was no news to him. He did not show any of the jitters normally shown by people upon the discovery of such alarming news. He showed no emotion and maintained his usual appetite for food in stark contrast to the repeated nightmares experienced by his wife who kept wailing. This man could have been awarded an Oscar for his acting as a mute when his wife confronted him on the issue. But the worse is yet to come.

Upon his hasty departure for Ghana, some concerned neighbours of theirs contacted the woman in Canada because of an unpleasant spectacle they had been observing since his return. This man had developed the habit of bring different women to spend the night in their matrimonial home, and this was the unpleasantness that worried the neighbours. However, it was the risk of infecting these poor ladies, who obviously would be more susceptible the man's advances because of his recent return from 'abrochi,' is what alarmed the woman. Rather than being dispensed with 'goodies,' from God's country, each of these women may have been handed a possible death sentence, a sentence to be likely shared with a regular or casual partner or both, in whatever combination. By the time this woman succeeded in returning to Ghana to confront her husband, he is reported to have 'processed' about 20 different women, a situation made ominous because he is notes to prefer 'tubeless' processes. This is a possible menace that Ghanaians face and it exists with each passing day that no action is taken. A lot of HIV-infected men and women are deliberately infecting others, who unknowingly, may pass it on to any of us- whether we are Ministers, MPs, Judges, Soldiers, Police Personnel, Taxi drivers, Labourers, irrespective of sex. Consequently, we are all at risk if steps are not taken to provide a deterrent to this conduct.

Despite this alarming situation, I am unable to advise this woman on how to resort to a public law remedy to protect the public from such a social menace. I knew she could not walk into a police station and lodge a complaint. I thought of WAJU but realized quickly that this was not domestic violence, literally, nor was there any jurisprudence of the Ghanaian courts to suggest otherwise. Obviously, the criminal justice system is the public law tool that is best suited for tackling such a menace as it provides the necessary deterrent and remedy for this emerging challenge to public health and safety.

There is the need for legislative intervention, as a matter of public safety as there is evidence to show that some HIV positive persons, upon realizing their fate, become vengeful and decide to spread the disease indiscriminately. Advancement in HIV-Aids medication is reported to have improved the looks of those infected to such as extent that 'there is no act or magic to read' …'HIV infection'… 'in the face.' Without legal intervention to protect the general public, those vengeful HIV infected persons will pursue, unfettered, their diabolical acts as nothing deters them.

On the 6 th of August, 2011, the police in the city of Edmonton in the province of Alberta, took the rare step of releasing the name of an HIV-positive, 17-year-old female suspected of having unprotected sex with a number of partners. Police allege that the teenager is not disclosing her HIV status despite knowledge of it. So far, two people have been bold to show up and complain to the police about being victims of this callus conduct.

Canada's Parliament has provided adequate legislative authority and guidance on matters of HIV-Aids relations for the protection of its society and to deter any unacceptable, vengeful conduct by those who are unfortunately infected. This is not to say Canada is free of challenges in this area, a matter I shall address in a sequel to this publication, if need be. However, pertinently, how is Ghana learning from the experiences of other countries? What are our numerous diplomatic missions doing to bridge the gap between the challenges Ghana faces and the resources and knowledge in the countries in which we have Missions?