Court of Appeal for Ontario
Before: O’Connor A.C.J.O., Rouleau and Epstein JJ.A.
Between:
Her Majesty the Queen
Respondent
and
Richard Zoldi
Appellant
Counsel:
Robin K. McKechney, for the appellant
Michelle Campbell, for the respondent
Heard: July 14, 2010
On appeal from the conviction entered by Justice H. Momotiuk of the Ontario Court of Justice dated June 6, 2008.
APPEAL BOOK ENDORSEMENT
1The trial judge accepted the police officers’ evidence that the appellant resisted the officers when they tried to turn him over and cuff him while he was on the ground. He pulled his hands and tried to put his hands under his stomach. These actions constituted forceful opposition by the appellant and constitute “resisting arrest” under s. 129 of the Criminal Code.
2At trial, defence counsel limited his argument that the police officers used excessive force to the alleged use of the taser gun on a second occasion. In this court, the appellant argues that the trial judge erred in coming to the conclusion that there was a lawful arrest without addressing whether all of the actions of the police officers constituted excessive force.
3We would not give effect to this ground of appeal. The finding that the arrest was lawful and within the execution of the police officers’ duties was fully supported by the record.
4As the issue of excessive force was not argued at trial as it has been on appeal, we see no error in the trial judge’s failure to specifically address the alleged use of excessive force in his reasons.
5The appeal is dismissed.