Seeking to avoid more jail time and eventual deportation, a former Whitehorse cab driver convicted of sexual assault last year brought his case before the Yukon Court of Appeal on Tuesday.

Rodrigo Torres, 42, was released pending his appeal amidst a 28-month sentence for a conviction of sexually assaulting a young woman in his taxi in late 2011.

Torres grounded his appeal in a supposed lack of "trial fairness.”

Torres' lawyer, Gordon Coffin, cited "unresponsiveness” on the part of the victim while she was on the witness stand.

"In essence, her responses were, ‘I don't remember, I can't say,'” said Coffin.

"Without the ability to (properly) cross-examine ... the court really wasn't in a position to fully evaluate that evidence.”

Coffin said the territorial court judge who found Torres guilty might have rejected certain evidence, declared a mistrial or had a different view of the witness's "reliability and credibility” if she had been more responsive.

"There was really no examination of how trial fairness was impacted,” he said.

Crown lawyer Ludovic Gouaillier countered that the victim "answered all the questions that were posed; she didn't refuse any.”

The woman did not remember several details due to intoxication the night of the incident — "commonly seen in criminal courts: a witness that doesn't have a perfect memory,” Gouaillier said.

"This is a witness that did the best she could .... She provided a substantial amount of information (and) did not deny the fact that she was extremely intoxicated.”

One of the madame justices on the three-judge appeal panel said that "the victim was responsive to the extent that she could be.” The judge said her inability to remember certain events did not amount to "unresponsiveness.”

The identity of the victim, then in her early 20s, is protected under a publication ban.

Torres, a Mexican citizen in the territory on a work permit, may be slated for deportation if his conviction stands. He would first have to serve the roughly 16 months remaining on his sentence.

"It's really hard,” Torres told the Star during a break in the proceedings. "I just want to close my eyes ... I don't know how I'm still sane — friends and God, maybe.”

Two people watched the court proceedings with Torres from the public gallery.

"Something like this puts a damper on everything he does,” said friend Dave Lavoie.

"Sure, there's a lot of bad guys out there that don't get caught and should be caught. But there's a lot of innocent guys out there.”

Judge Michael Cozins found Torres guilty of sexual assault in October 2012.

Torres had picked up the victim in his taxi after she had called Quality Cabs following a night of drinking in early December 2011.

He drove into a bus turn-around, parked the vehicle and assaulted her, the court heard last year.

The woman testified that she had blocked out much of what happened but that she was certain she did not want it to occur.

Torres insisted the sex was consensual.

In his sentencing, Cozens said women have an expectation that they will be transported safely when they call a cab company.

In Whitehorse, where the weather is cold several months a year and public transportation is limited, many residents rely on taxis, particularly at night or early in the morning.

The drivers are in a position of trust, Cozens said.

Torres, who is originally from Puerto Vallarta, has family members in both Mexico and Whitehorse.

He has no previous criminal record.

A sentencing hearing in December 2012 centred largely around whether he would be forced out of the country after he serves his time.

A sentence of less than two years would have given Torres a chance to appeal his deportation with immigration officials.

A sentence of two years or longer generally rules out the option of appeal.

Inmates convicted of offences including sexual assault can apply for release on conditions and potentially wait out the appeal decision in the community. Torres was released on conditions last August.

If the trial ruling is overturned or Torres is acquitted, he wouldn't have spent excessive time in prison, the Crown lawyer said.

The appeals court panel, made up of B.C. Court of Appeal judges Nicole Garson, Risa Levine and Kathryn Neilson, convened this week in Whitehorse.

They have not said when they they will hand down a decision on Torres' appeal.