Court of Appeal for Ontario

Citation: R. v. Zoldi, 2010 ONCA 511

Date: 20100715

Docket: C49425

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

[1] The 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.

[2] At 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.

[3] We 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.

[4] As 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.

[5] The appeal is dismissed.