A Chilliwack man who repeatedly had sex with an HIV-positive woman without informing the woman has had his appeal against his aggravated sexual assault conviction dismissed this week.
The British Columbia Court of Appeal rejected Steven Stewart Gauthier’s attempt to reopen the trial to hear new evidence that others may have told the complainant about his HIV status.
The three-judge appeals court delivered the judgment on November 14.
Gauther was convicted on February 5, 2020 in BC Supreme Court in New Westminster by Judge Martha Devlin of one count of aggravated sexual assault under section 273 of the Criminal Code.
Aggravated sexual assault is defined as “a sexual assault that injures, disables, disfigures, or endangers the plaintiff’s life.”
Consensual sex with someone who did not disclose their HIV status met the criteria of endangering the complainant’s life, and the non-disclosure made the consent legally invalid.
Gauthier, 60, is related to RG, the complainant who cannot be named because of a publication embargo. According to trial evidence, the pair began having sex beginning in late summer 2016.
Gauthier contended that RG knew of his HIV status, but he was not seen as credible, at least in part because when the victim found out she was also HIV positive, she saw it as a death sentence. Prosecutor John Lester said it was not the response of someone who had voluntarily had sex with an HIV-positive person, and the court accepted it.
Following the conviction, Gauthier applied for a mistrial and reopened the pleas, both of which were denied. He then appealed on the grounds that the trial judge wrongly considered evidence that others might have told RG about his HIV status.
“The issue is not that someone else told the complainant about his HIV status,” according to a summary of the British Columbia Court of Appeal decision released Monday. “What other people might have told the complainant when they had already had a sexual relationship did not prove anything at trial.”
The justices agreed with the trial judge that the central issue was whether Gauthier told RG he was HIV positive before they had sex, not whether someone else would tell her later.
“The judge found he failed to do so.”
RG tested HIV positive at a facility after becoming certified under the Mental Health Act in late January 2017.
Gauthier was also accused of having a “physical” relationship with RG that became increasingly rough sexually, resulting in allegations of sexual assault and battery, but was acquitted due to the complainant’s mental state making his testimony credible.
Prosecutors asked for an extended jail term, but Gauthier was sentenced to four years in BC Supreme Court in New Westminster on June 25, 2021. Subtracting the term served meant he could serve an additional 1,099 days.
The statutory release period is two-thirds of the sentence, or 733 days, meaning Gauthier is scheduled to be released on or around June 28, 2023.
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BC Supreme Court Tribunal Sexual Assault