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UPDATE: Nine more aggravated sexual assault charges laid against accused

HIV activist calls Ottawa Police conduct a 'witch hunt'

UPDATE, Mon, May 17, 3:30pm: Through video link, the accused made his third appearance in an Ottawa courtroom May 17.

Originally charged with nine counts of aggravated sexual assault and one count of failure to comply with his probation conditions, the accused now faces an additional nine aggravated sexual assault charges and two more failure to comply charges.

The accused spoke politely during his appearance, answering “yes ma’am” to questions. His next court appearance, via closed circuit television, is set for May 26 at 1:30 pm. He has been in custody at the Ottawa-Carleton Detention Centre since May 6. He will have served 20 days in jail by the time of his next court appearance.

The accused’s lawyer, Delinda Hayton, was not present at the courtroom but was available for comment by phone.

“I can tell you I don’t have any information on those new charges. I have received nothing from the Crown attorney on new charges. I probably will get something soon, but I don’t know when,” says Hayton.

When asked if the accused or his family will give a statement, Hayton said it’s not the right time.

“At this time, he’s indicating he’s willing to follow advice. It is a difficult situation for everyone involved. There are charges outstanding and we don’t know all the info what is against him, so it is premature to be giving statements,” says Hayton.

When asked why such measures are being taken, Hayton said it’s because the Crown is still in the midst of its investigation.

“We have not yet set a bail hearing. The Crown is still continuing its investigation. They may or may not be laying more charges. That’s the information I have. If the Crown decided to lay more charges the day after his release, we’d be going through this same process again. We’re waiting for the investigation to unfold,” says Hayton.  

When asked about the new charges, Acting Inspector John McGetrick says police will issue another statement later this week.

“I can tell you there are more updates coming this week. I appreciate the calls we’ve gotten from the media but we’ve decided we’re going to provide an update later this week,” says McGetrick.

UPDATE Mon, May 10, 2:30pm: HIV activists are weighing into recent police conduct — and their verdict is scathing.

On May 6, Ottawa Police charged a man with nine counts of aggravated sexual assault for failing to disclose his health status before having unprotected sex.

Michael Burtch, a HIV activist, has been taking the community’s temperature, after police released the accused’s name and photo to the media May 7.

“It’s a witch hunt is what it has turned into. It’s very frightening for a lot of people in the HIV community to see what’s happening,” says Burtch. “The feedback that I have been getting from talking to people is that they feel as though it could just as easily be them. So there is I think a very strong swelling of support for [him] from the HIV positive community who feel a lot of empathy for his situation.”

Burtch is critical of the way the accused has been portrayed by the police and the mainstream media.

“Basically he is being presented as guilty before he has even had a trial. And all the actions that the police have taken are really just continuing to dilute the public health messages that practicing safer sex is everyone’s responsibility. I think we are really going to see that this is going to have a negative effect on testing in the city and its definitely going to have and effect on stigma and fear, discrimination and prejudice that HIV positive people are already dealing with on a daily basis.”

“I think that the Ottawa Police, despite their best intentions, have done a real disservice to the HIV community. And I am disappointed in the police liaison committee, I wish that they could have done more for him.”

Kathleen Cummings, the director of the AIDS Committee of Ottawa, agrees. She says that, while people may forget a name, they’re more apt to remember a face.

“This is going to affect him for life,” she says.

More and more poz folks are getting charged with this sort of crime, says Cummings, leading to confusion and anxiety amongst HIV-positive people.

“This is a public health issue and we are seeing it being moved into crime,” she says. “It’s very sad and it’s gaining momentum in this country. Yhe reality is that if criminalization was going to work we would have seen it work over other issues.”

Jason Gratl, a lawyer with the BC Civil Liberties Association, fought for and won a publication ban on the name of another man accused of a similar crime in Vancouver.

“On one level the police’s desire to reach out to the community and to potential witnesses is understandable, but on another, more important more fundamental level the privacy interest in health matters ought to restrain police’s conduct in this type of case,” says Gratl. “One would think at least the police would ensure that their case meets the charge approval standard by, for example, ensuring that viral loads are high enough to allow for transmission before releasing such personal information.”

UPDATE: Monday, May 10, 4pm: A group that acts as a link between the gay community and the Ottawa Police Service sent out an extended press release on May 10, calling a man in police custody a “sexual predator.” The woman in charge of the committee said she had no choice because a senior police officer asked that the email be sent.

It’s the strongest language yet from the police and its affiliates.

In all other respects, the email is identical to a press release Ottawa police distributed on May 7. It includes the name and photo of a man who is being held on nine counts of aggravated sexual assault for failure to disclose his health status before having unprotected sex.

The email list of the Police Liaison Committee to the Gay, Lesbian, Bi and Trans Community is made up of members of Ottawa’s queer community and police officers.

Joyce Druin, the coordinator of the committee, says the “sexual predator” email was sent out at the request of a police inspector. While Druin agrees that people’s health information should not be released by police, she says she did not have a choice.

But the group’s community co-chair, Marion Steele, says she has mixed feelings about the press release, but on balance she agrees with its distribution.

“From a women’s community standpoint, I can see why they did this,” says Steele. “Because if they did not do this and people found out later, then the police would be on the line for not disclosing that someone was out there spreading an infectious disease.”

The liaison committee was founded in the wake of outrage from the queer community about how it handled gaybashings in the 1980s. In recent years, some have complained that it the committee is more likely to defend police actions than advocate for queer people.

Steele says the liaison committee will be discussing the issue at their next meeting.

Community meeting
Police Liaison to the GLBT Community
Mon, May 17, 5:30pm
Ottawa Police Station
474 Elgin St, second floor
The meetings are public, and anyone can attend and speak.

UPDATE Mon, May 10, 2:30pm:
The accused made his second appearance in an Ottawa courtroom May 10. A picture of him — boyish, wearing an orange jumpsuit — was piped in by video link from an Ottawa detention centre.

As expected, the judge ordered a publication ban on the name of two complainants in the case.

The accused is still being held in custody, and a bail hearing has not yet been scheduled. The reason he hasn’t been released is because of a faillure to comply charge related to a breach of probation. That probation condition is unrelated to the case and that crime was not sexual in nature.

His lawyer, Delinda Hayton, spoke to Xtra after the hearing.

“His family is being very supportive and I think he has a good chance of being released next week,” says Hayton.

His next appearance is scheduled for May 17, again by video.

UPDATE Mon, May 10, 11:30am:
When Xtra contacted the accused, we got back a long note from a friend. Here’s part of what his friend had to say:

S has been vilified in the press for something that has originated as a roommate conflict and has blown up into something that will destroy his life. He says the police interrogated him about his health status without a lawyer present, even though he asked for one.

S has never keep his HIV status a secret. He is very open about it, having been infected through a previous long-term relationship, not a one-night stand.

He is not the type of person to intentionally infect anyone with any disease. If you ask people that truly know him, you will hear that he is a kind and sweet person. At this point, we have no clue if the person that has laid charges against S was even infected by S.

[At his next court date,] he is appearing by video due to the threats he has received from members of the public who believe any lie The Sun prints. He is in solitary confinement so the other inmates don’t kill him based on the news reports, so you will just have to listen to him.

Please do anything you can to bring support to S. Our voices are silent because the mainstream media will print any lies they want, and so the public is not getting all the information. S is being put through this hell at the whim of one or two individuals who are upset at him over something else.

Friday May 7, 3pm: An Ottawa man is in police custody on nine counts of aggravated sexual assault for failure to disclose a sexually transmitted infection to a partner. The man appeared in court May 6, as of May 7 he is still in police custody.

May 7, Ottawa Police took an “extraordinary measure” in releasing the man’s photo and full name to the public. Police did not release whether the charges were HIV-related, or stem from another STI.

Xtra has chosen not to release the name of the accused.

In a statement released by the Ottawa Police, acting chief Gilles Larochelle says he is “releasing the picture of the charged man — an extraordinary measure — to ensure that all sexual partners are informed that medical follow-up is warranted.”

Acting Inspector John McGetrick says all nine charges relate to one victim but he wouldn’t say whether it was protected or unprotected sex. He also says it is not regular police policy to release a poz person’s photo when they have been charged, unless there is a serious public health threat.

“We are confident with the case he has had multiple partners and we are very concerned. We can’t say whether or not it’s a case of unprotected sex. What we do know he has been with many partners in the last few months. And it’s very alarming and serious,” says McGetrick.

The sex was consensual and dates back to January and early February. Police began investigating after recieving a complaint from a man April 30.

When asked whether the complainant may have used the man in custody’s status as a weapon for blackmail or revenge, McGetrick says the police are basing the case on evidence the man recently may have had multiple sex partners. 

 “Put it this way, before we make a decision like this, we have to do have our investigation. These facts are confirmed. We wouldn’t have been allowed to put (his health status) out there if we were not confident in this case. I don’t know what you mean in your question about someone being mad. We have reason to believe he has had multiple partners in the last few months. We’re advising people to seek medical attention if they have had sex with him.  We wouldn’t have it out there if we weren’t confident. It’s very serious,” says McGetrick.

An email to the charged man has not yet been returned. Kathleen Cummings from the AIDS Committee of Ottawa was not immediately available for comment.

Richard Elliott from the Canadian HIV/AIDS Legal Network points out that there is no standard for how these cases proceed. That makes it very difficult for poz people to know how to behave without running afoul of the law.

“I can see there are differences between different police forces and how they handle things. Sometimes it depends on the Crown.  Some may not want to prosecute. But this raises a concern about potential fairness and consistency in what is standard law across the country,” says Elliott.

In 1998, the Supreme Court of Canada ruled that a person living with HIV has a duty to disclose his or her status to a sexual partner only if there is a “significant risk” of transmission, but much uncertainty remains about what this means. Case law is still developping with respect to other STIs.

Police across the country have a track record of immediately releasing the names of folks who are charged in cases of HIV-nondisclosure. When they identify those charged, they “out” them as poz.

That’s beginning to change thanks to a handful of precedent-setting cases — including one where a publication ban on the accused’s identity was ordered at trial.

–with files from Marcus McCann