R. v. Torres (R.A.M.), 2013 YKCA 16

• Judge: Levine, Neilson and Garson, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: December 19, 2013
• Jurisdiction: Yukon
• Citations: 2013 YKCA 16;(2013), 348 B.C.A.C. 160 (YukCA)

R. v. Torres (R.A.M.) (2013), 348 B.C.A.C. 160 (YukCA);

    595 W.A.C. 160

MLB headnote and full text

Temp. Cite: [2014] B.C.A.C. TBEd. JA.032

Regina (respondent) v. Rodrigo Antonio Moreno Torres (appellant)

(YU713; 2013 YKCA 16)

Indexed As: R. v. Torres (R.A.M.)

Yukon Court of Appeal

Levine, Neilson and Garson, JJ.A.

December 19, 2013.

Summary:

The accused taxi driver and an intoxicated female fare had sex in the taxi. The accused was convicted of sexual assault. The female testified that she could not remember much of the taxi ride, but that she did not want to have sex with the accused. She claimed her memory lapses were attributable to blocking everything out after the incident because she did not want to remember. The accused appealed, arguing that "the trial judge erred in accepting the evidence of the complainant when she was unresponsive to the point that his counsel could not properly cross-examine her. He says this denied him the opportunity to make full answer and defence and rendered his trial unfair, thereby violating his rights under ss. 7 and 11(d) of the Charter of Rights".

The Yukon Court of Appeal dismissed the appeal. The female's unresponsiveness was neither voluntary nor blameworthy. Further, the limitations on her testimony were not material to the issue of consent. She was able to answer the questions on that topic by both the Crown and the accused and consistently testified that she would not, and did not, consent to sex with the accused. Ultimately, assessing the effect of the female's unresponsiveness was a matter lying within the trial judge's discretion. He was aware of the difficulties her unresponsiveness raised, but was still able to carry out a detailed assessment of her evidence.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - See paragraphs 1 to 30.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - See paragraphs 1 to 30.

Criminal Law - Topic 5415

Evidence and witnesses - Witnesses - Cross-examination of - See paragraphs 1 to 30.

Evidence - Topic 4707

Witnesses - Examination - Cross-examination - Limitations - See paragraphs 1 to 30.

Evidence - Topic 4713

Witnesses - Examination - Cross-examination - Right to - Denial of - See paragraphs 1 to 30.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 12].

R. v. Hart (W.A.) (1999), 174 N.S.R.(2d) 165; 532 A.P.R. 165; 1999 NSCA 45, refd to. [para. 18].

R. v. Wyatt (F.E.) (1997), 91 B.C.A.C. 166; 148 W.A.C. 166; 115 C.C.C.(3d) 288 (C.A.), refd to. [para. 19].

R. v. Lyttle (M.G.), [2004] 1 S.C.R. 193; 316 N.R. 52; 184 O.A.C. 1; 2004 SCC 5, refd to. [para. 19].

R. v. Duong (T.D.) (2007), 220 O.A.C. 131; 2007 ONCA 68, refd to. [para. 19].

Counsel:

G. Coffin, for the appellant;

L. Gouaillier, for the respondent.

This appeal was heard on November 12, 2013, at Whitehorse, Yukon, before Levine, Neilson and Garson, JJ.A., of the Yukon Court of Appeal.

On December 19, 2013, Neilson, J.A., delivered the following judgment for the Court of Appeal.