A man convicted of aggravated sexual assault due to his failure to inform a woman of his HIV-positive status before having sex lost his appeal in court Monday.
Steven Stewart Gauthier was sentenced to four years, less time served. He had appealed to have new evidence introduced and to have a mistrial declared.
Following his conviction, his applications to reopen the defence case to introduce new evidence and for a mistrial were refused.
He appealed to the province’s high court, saying B.C. Supreme Court Justice Martha Devlin erred during his Chilliwack trial. He argued the judge failed to consider relevant evidence. In dismissing his application to reopen the case, Gauthier said the judge failed to consider evidence about what others may have told the complainant about his HIV status.
Court of Appeal Justice Sunni Stromberg-Stein said the issue at trial was whether Gauthier told the woman before having sex that he was HIV‑positive and that she had a realistic possibility of contracting the virus from him.
“He represented, to the contrary, that his illness was not transmissible,” Stromberg-Stein said.
The woman testified that a mutual friend introduced her to Gauthier in June or July of 2016, according to the Nov. 14 decision.
Before they met, the friend told her Gauthier had HIV. By August 2016, the woman and Gauthier were engaged in a sexual relationship and using condoms. She subsequently had a conversation with Gauthier regarding his HIV status. She asked him whether she needed to be worried about contracting HIV.
The court decision said she described Gauthier becoming increasingly agitated, angry and frustrated during the conversation.
“He told her, ‘No, I have an immune disorder, but you can’t contract it.’
“She asked, ‘So you don’t have HIV?’ And he responded, ‘No, I don’t have HIV.’”
He said the people who said he had HIV were slandering his name and trying to make him look bad so she wouldn’t want to be with him. She believed him, state court documents.
After that discussion, they decided to stop using condoms, the court heard. She said that had Gauthier told her he was HIV‑positive, she would have consulted a doctor and would have insisted on condom protection.
In October 2016, she moved to Gauthier’s farm.
The next month, she went to the hospital for a vaginal infection. Blood work was done because she told the doctor she was concerned her boyfriend might have HIV. She tested negative for HIV. She said she felt reassured Gauthier was telling the truth.
The following January, she ran away from Gauthier’s farm and was subsequently committed to a hospital under the Mental Health Act. She was experiencing drug‑induced psychosis and having delusions and hallucinations, according to the appeal court ruling.
“Blood work ordered during her hospital admission revealed that she was HIV‑positive,” the decision said. “She felt foolish for trusting Mr. Gauthier and not listening to her friend and his niece.”
Gauthier testified he learned he was HIV‑positive in 2005 or 2006.
He said he told her he did have HIV, and he thought he got it from a transfusion as a child.
On cross‑examination, he clarified he told her he had an autoimmune deficiency, he was on medication, it was supposed to be non‑transferable, and he probably got it when he had cancer as a child.
He claimed they always used condoms.
Rick Gauthier testified he met the woman about two days after his brother did. At their first meeting, he told the woman, in the presence of Gauthier, “You’re playing with fire; my brother has HIV.”
Stromberg-Stein said Devlin found Gauthier presented a realistic risk of transmission of HIV to the woman and was obligated to disclose his HIV status prior to sexual contact.
She said consent was invalidated by his failure to disclose that information and that there was a significant risk of bodily harm.
“(She) would not have consented to having sexual intercourse had she known of his HIV‑positive status,” the court said.
