Accused was charged with sexual assault and uttering threats but convicted by jury of lesser and included offence of assault. Conviction upheld. Photographs tendered as evidence could establish assault. Pictures were admitted with consent of defence, and were taken at police station by police three days after assault. While it was always challenging to articulate what evidence jury relied upon and what evidence it chose to reject, it was possible for jury to convict on assault only. Crown noted lack of DNA evidence combined with inconsistencies in victim’s evidence, might have left jury in some doubt about sexual nature of assault. Court not satisfied it was necessary in circumstances for trial judge to have given specific warning as to lack of corroboration. Decision to instruct on lesser offence of assault was discretionary one that was entitled to deference. Dissent found rejection of complainant’s evidence on sexual assault, combined with conviction for assault based on photographs, were fundamentally inconsistent verdicts.
R. v. Yelle (Jan. 22, 2014, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., and Moldaver J., File No. 35361) Decision at 108 W.C.B. (2d) 602 was affirmed. 111 W.C.B. (2d) 402.