A Chilliwack man who repeatedly had sex with a woman while he was HIV-positive without informing the woman had his aggravated sexual assault conviction appeal dismissed this week.
The B.C. Court of Appeal dismissed Steven Stewart Gauthier’s attempt to reopen the trial to hear new evidence about what others may have told the complainant about his HIV status.
The judgment was released by the three-justice Appeal Court on Nov. 14.
Gauther was convicted on Feb. 5, 2020 by Justice Martha Devlin in BC Supreme Court in New Westminster of one count of aggravated sexual assault under section 273 of the Criminal Code.
Aggravated sexual assault is defined as sexual assault that “wounds, maims, disfigures or endangers the life of the complainant.”
Consensual sex with a person who does not disclose their HIV status meets the test of endangering the life of the complainant, and the consent is rendered legally invalid because of the non-disclosure.
The now 60-year-old Gauthier was in a relationship with R.G., the complainant who cannot be named due to a publication ban. Starting in late summer 2016, the two began engaging in sexual activity, according to evidence at trial.
Gauthier argued that R.G. was aware of his HIV status, but he was not deemed credible, at least in part because when the victim found out she too was HIV positive, she thought it was a death sentence. Crown counsel John Lester said, and the court accepted, that this was not the response of someone who was consensually having sex with an HIV-positive person.
After the conviction, Gauthier applied for a mistrial and to reopen the defence case, both of which were refused. He then appealed on the basis that the trial judge erred to consider evidence what others may have told R.G. about his HIV status.
“The issue was not what other people told the complainant about his HIV status,” according to a summary of the B.C. Court of Appeal decision issued Monday. “At the point when they had already engaged in sexual intercourse, what others may have told the complainant was not probative of any issue at trial.”
The justices agreed with the trial judge that the central issue was whether Gauthier told R.G. that he was HIV-positive before they had sex, not whether other people might have told her later.
“The judge found as a fact that he did not.”
R.G. tested positive for HIV while in an institution after she was certified under the Mental Health Act in late January 2017.
Gauthier was also alleged to have been “physical” with R.G. and the sex got rougher and rougher leading to charges of sexual assault and assault, but he was acquitted of those charges because of the credibility of the complainant’s testimony due to her mental state.
Crown counsel was asking for more time in jail, but Gauthier was sentenced to four years in prison in BC Supreme Court in New Westminster on June 25, 2021. Minus time served meant he was given 1,099 more days to serve.
Statutory release comes at two thirds of a sentence, or 733 days, which means Gauthier is scheduled for release on or near June 28, 2023.
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