R. v. Panacheese (G.), (1998) 50 O.T.C. 291 (GD)

• Judge: Stach, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: January 06, 1998
• Jurisdiction: Ontario
• Citations: (1998), 50 O.T.C. 291 (GD)

R. v. Panacheese (G.) (1998), 50 O.T.C. 291 (GD)

MLB headnote and full text

Temp. Cite: [1998] O.T.C. TBEd. JA.039

Her Majesty the Queen v. George Panacheese (defendant)

(Court File No. 35/97)

Indexed As: R. v. Panacheese (G.)

Ontario Court of Justice

General Division

Kenora

Stach, J.

January 6, 1998.

Summary:

An accused was charged under s. 146(1) Criminal Code, R.S.C. 1970, c. C-34 with two counts of having sexual intercourse with a female under the age of 14 years. Both the complainant and the accused were now adults. The incidents occurred when the complainant was 5-6 years old and consisted of touching her private parts with his hands. There was sufficient doubt as to whether penetration had occurred. Issues included whether (1) the accused was under 14 years of age at the time of the alleged offences so as to benefit from immunity from conviction under s. 147 and (2) the court, as opposed to the Juvenile Court, had jurisdiction to hear the matter.

The Ontario Court (General Division) convicted the accused on the included offence of indecent assault on both counts. Since the offences occurred when the accused was 14 years old, he could not benefit from statutory immunity under s. 147. The court had jurisdiction where the accused came before the court as an adult. The court sentenced the accused to nine months' imprisonment on the first count and three months consecutive on the second count.

Criminal Law - Topic 613

Sexual offences, public morals and disorderly conduct - Indecent assault - What constitutes indecent - See paragraphs 1 to 24.

Criminal Law - Topic 671

Sexual offences, public morals and disorderly conduct - Sexual offences, rape or sexual assault - Immunity - Male under 14 - See paragraphs 1 to 24.

Criminal Law - Topic 700

Sexual offences, public morals and disorderly conduct - Sexual offences - Particular offences - Sexual intercourse with female under age 14 - See paragraphs 1 to 24.

Criminal Law - Topic 5856

Sentence - Indecent assault - See paragraphs 18 to 25.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397; 3 C.R.(4th) 302, refd to. [para. 4].

R. v. Cardinal (1982), 42 A.R. 180; 3 C.C.C.(3d) 376 (C.A.), affd. (1984), 18 C.C.C.(3d) 96 (S.C.C.), refd to. [para. 5].

R. v. W.S. (1994), 70 O.A.C. 370; 18 O.R.(2d) 509; 29 C.R.(4th) 143; 90 C.C.C.(3d) 242 (C.A.), refd to. [para. 7].

R. v. Deol, Gill and Randev (1981), 27 A.R. 510; 58 C.C.C.(2d) 524 (C.A.), refd to. [para. 9].

R. v. Chase, [1987] 2 S.C.R. 293; 80 N.R. 247; 82 N.B.R.(2d) 229; 208 A.P.R. 229; 37 C.C.C.(3d) 97; 45 D.L.R.(4th) 98; 59 C.R.(3d) 193, refd to. [para. 9].

R. v. McCraw, [1991] 3 S.C.R. 72; 128 N.R. 299; 49 O.A.C. 47; 66 C.C.C.(3d) 517, refd to. [para. 20].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 146(1) [para. 2]; sect. 147 [para. 5].

Counsel:

A. Mazurski, for the Crown;

Van Walleghen, for the accused.

This case was heard on January 5 and 6, 1998, at Kenora, Ontario, before Stach, J., of the Ontario Court (General Division), who delivered the following judgment orally on January 6, 1998.