COURT OF APPEAL FOR ONTARIO

DATE: 20000114

DOCKET: C31545

RE: HER MAJESTY THE QUEEN (Respondent) –and– GIACINTO
ARCURI (Appellant)

BEFORE: FINLAYSON, WEILER and SHARPE JJ.A.

COUNSEL: Joseph L. Bloomenfeld, for the appellant
Feroza Bhabha, for the respondent

HEARD: January 11, 2000

On appeal from the judgment of Tobias J. dated January 26, 1999
dismissing the application for certiorari seeking to quash the
decision of Lampkin J. committing the appellant to trial on a
charge of second degree murder.

E N D O R S E M E N T

[1] The committing judge expressly instructed himself as to his
function relying upon Monteleone v. The Queen (1987), 35 C.C.C.
(3d) (S.C.C.) 193 and United States v. Shephard (1976), 30 C.C.C.
424 (S.C.C.). These cases are still good law. The dissenting
reasons of McLachlin J. in R. v. Charemski (1998), 123 C.C.C.
(3d) 225 (S.C.C.) at 237 specifically state that the trial judge
is not to assess the credibility of witnesses..

[2] Accordingly, the committing judge made no jurisdictional
error and Tobias J. was correct in denying the appellant the
remedy of certiorari. The appeal is dismissed.

Signed: “G.D. Finlayson J.A.”
“K.M. Weiler J.A.”
“Robert J. Sharpe J.A.”