Final arguments in appeal of HIV man convicted of sex assault

Manitoba's Court of Appeal heard oral arguments Wednesday in the case of an HIV-positive man serving a 14-year prison sentence for having sex with six girls and women from Winnipeg without disclosing his medical condition.

Clato Mabior was sentenced in October 2008 after being convicted on six counts of aggravated sexual assault as well as invitation to sexual touching and sexual interference.

He appealed that conviction in November 2008, and Wednesday was the last chance forlawyers and interested parties to present arguments before the court rules on the appeal. The court reserved its decision and will issue it in writing at alater date.

'You can't go back after the fact.' Elizabeth Thomson, Crown attorney

Mabior was found guilty of having unprotected sex with four females and protected sex with two others, including a 12-year-old.

Mabior's convictions hinged on his failure to disclose his illness to his sexualpartners.

None of the women contracted HIV as aresult of sexual contact with Mabior.

On Wednesday,Mabior's lawyer, Iain MacNair,argued that the convictions should be set aside and Mabior set free.

MacNair said medical tests show Mabior's level of infection was low between 2002 and 2004, the time the sexual encounters took place.

Consequently, it meant the risk to Mabior's sexual partners was low,he argued.

The legal test to prove aggravated sexual assaultis that the victim must be at significant risk of serious bodily harm, MacNair argued, and inMabior's case, that risk wasn't established beyond a reasonable doubt.

Lack of informed consent the key issue: Crown

But the Crown argued that what matters is that Mabior didn't ever disclose his HIV status to his sexual partners, and therefore, they were denied the right to consent or refuse to engage in sexual activity with him.

It's unfair for Mabior to now claim his level of infection was low enough to pose little risk, Crown attorney Elizabeth Thomson said.

As well, it would have been medically impossible for him to know what his viral load would have been at the time of the sexual activity, she said.

"It's about risk to the complainant. That's what matters here," Thomson said.

She likened it to a gun with one bullet. "Is that person absolved later because there's a low chance the bullet would come out? You can't go back after the fact," Thomson said.

Even if the risk was one in 100,000, there was still a real risk the women may have been caused serious bodily harm, Thomson said.

Mabior, a Sudanese immigrant, faces deportation from Canada at the conclusion of his sentence. An acquittal would quash any pending deportation order.