Quebec HIV case challenges assumptions about nondisclosure

NEWS / Steve Biron at the centre of what could be landmark case

Luna Allision January 2011

An HIV-positive man in Quebec City is in custody facing charges of aggravated sexual assault and aggravated assault for allegedly having bareback sex with 11 or more men between June and October 2010 despite knowing his poz status.
He faces up to 14 years in prison if the charges stick, but the story is not as simple as it would first seem.

Steve Biron, 32, first appeared on police radar Nov 5, 2010, when a fuck-friend of Biron’s came forward with a complaint against him, saying that Biron had lied about his HIV status before they had unprotected sex.

After processing the complaint, Quebec City police launched an investigation. They arrested Biron on Nov 22 and released a province-wide communiqué a week later, saying that he was being charged with aggravated assault and aggravated sexual assault and asking people to call the police if they had been in contact with Biron on the internet (Biron hooked up with most of the guys through The communiqué, along with Biron’s picture, ran in most newspapers, on web-based news outlets and on several TV channels across Quebec.

“We asked the population to call us if [anybody] was involved with him,” says Sandra Dion, a communications agent with the Quebec City Police Service. “He was on the internet and everything, so the investigator believed he had many partners. We’re not allowed by law to talk about his health status, so we could not say he has HIV. That’s why we asked people to contact the police.”

But there are growing questions about the validity of the case and how it’s being handled.

During a Dec 22 court appearance, the public heard from the investigating officer in the case, Detective Sergeant Louis Lachance. While on the stand, Lachance confused case details, as well as several terms related to HIV and the gay community. He excused himself by saying he didn’t have his papers in front of him. Judge Chantale Pelletier, who was presiding, said, “Well, you must know the case?” Lachance replied that he wasn’t comfortable with the case.

That day, it also came to light that the original complainant in the Biron case has done time for fraud, extortion and breach of conditions. His entire criminal record — totalling more than 40 criminal acts — was read into the court record by Judge Pelletier during the Dec 22 hearing.

Biron’s lawyer at the time, Herman Bédard, decided not to present any of the scientific evidence he had at his disposal about the effects of the antiretroviral meds that his client had been on since being diagnosed with HIV in 2007, or about Biron’s undetectable viral load — both of which significantly lower the risk of HIV transmission and may have influenced the decision to go to trial.

“The rule in Canada is that someone can be prosecuted for not disclosing his or her HIV-positive status before engaging in a sexual act that represents a significant risk of HIV transmission,” says Cecile Kazatchkine, a policy analyst with the HIV/AIDS Legal Network. “So, the courts take into account whether there was or was not a significant risk of transmission. We know now that someone’s viral load will have an impact on HIV transmission. The lower the viral load, the [lower] the risk of transmission. The courts cannot ignore the science anymore. We’re not talking about elimination of the risk; we’re talking about [there not being] a significant risk.”

“It is actually a real bastardization of the justice system… sexual assault as a charge removes any accountability within this context for any of the claimants involved — specifically regarding their other sexual activities within our community,” says Mikiki, a Toronto-based HIV/AIDS activist. “Not only does it further HIV stigma and homophobia and fear around testing for dudes who don’t know their status, it also reinforces the need for poz guys to conceal our status out of fear of criminal prosecution and not the opposite.”

Recent decisions in the Quebec and Manitoba Courts of Appeal state that HIV-positive people like Biron, who have an undetectable viral load, are not required by law to disclose their HIV status before engaging in sex because there is no significant risk of HIV transmission — even when it comes to unprotected sex. It was ruled by both courts that an undetectable viral load or the careful use of a condom represented a low risk of transmission, though both court decisions avoided stating that either scenario would automatically cancel out legal liability.

The Manitoba decision also suggests that the nature of the disease has evolved due to availability of new treatments and that HIV is no longer a death sentence.

These points were mirrored in the Quebec Court of Appeal’s decision on Dec 10.

Scientific evidence related to treatment options and viral load will certainly be introduced in court as part of Biron’s defence, but the work of investigative journalist Roger-Luc Chayer of Gay Globe Media is likely to contribute significantly to Biron’s case as well.

Chayer started digging into the case after being approached by a family member of Biron’s.

“I wasn’t aware of the case, so I asked what was happening. They gave me a briefing about the arrest,” says Chayer. “I was not happy with what Mr Biron did. Somebody is trying to transmit AIDS? This is not a good thing in society. Let’s just say I didn’t have a positive feeling about it. But, I said, of course I’ll look at the documents because I want to know the story. Then I saw the written statements that the [alleged] victims made to the police.”

The online names of the alleged victims were listed in their statements, so Chayer decided to go to the Gay411 site and try to view their profiles. He soon found out that most of the guys who were bringing complaints against Biron were still active on the site and looking for hookups.

“That’s interesting because, when you read the victims’ statements, most of them said that they were traumatized and sick with anxiety,” says Chayer. “In my mind, I was wondering if they would go as far as to do the exact opposite of what they said in their [statements].

“I decided to contact them — not telling them I was a journalist, of course, undercover. I said, you know, my trip is to have bareback [sex]. I want to feel the skin. Don’t talk to me about any condoms. If you talk to me about condoms, I’ll turn you away. Most of them said yes. They didn’t ask me any questions about HIV. I printed every conversation. In their statements, they said that they [had] all questioned Mr Biron about that before having sex with him. They said he gave them a guarantee that he was negative. The problem is that none of them asked me about my HIV status. This happened two or three weeks after Biron was arrested, so it [doesn’t make any sense].”

Chayer’s exposé raised doubt about whether safer sex was something that Biron’s sexual partners were looking for in the first place. The evidence Chayer gathered has been subpoenaed by the court, and he has agreed to release the information in the interests of a fair trial.

“Mr Biron called me once from jail,” says Chayer. “He said to me that before the investigation was published, he was being beaten and harassed. His life in jail was a nightmare. People would cut [out] the newspaper articles about him and put them everywhere so the prisoners would read that and attack him. When the investigation showed that the [alleged] victims were very problematic, his quality of life got a lot better.”

Biron has been in custody since his arrest. After hearing the Crown prosecutor’s evidence on Dec 22, Judge Pelletier refused bail for the accused, saying that he posed a serious threat to public safety.

The accused has parted ways with his counsel and is now represented by another Quebec City lawyer, Denis Bernier.
Bernier will soon petition the court for the right to approach the Quebec Court of Appeals in the hopes of overriding the imprisonment order against Biron, but the process will take between one and three months.

Biron will appear in a Quebec City court Jan 31 for his preliminary hearing.

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