TORONTO — A drunk man found sleeping behind the wheel of his idling parked truck has lost his bid to take his impaired driving conviction to Ontario’s top court.
In a decision Wednesday, the Ontario Court of Appeal rejected plans by Hugh O’Neill to argue he had only started the engine to keep warm and had no intention of driving.
O’Neill was found behind the wheel in the early hours of a December morning parked in a lot outside an industrial building in London, Ont. Court documents show a police officer had difficulty waking him. His blood-alcohol level was well in excess of the legal limit. He was convicted at trial. An initial appeal was dismissed.
O’Neill argued at trial that friends had driven him back to his truck after a night of drinking and he climbed in with the aim of sleeping until he was sober. He testified he had woken during the night, got out to relieve himself, and then got back in. At that point, he said, he had started the truck to keep warm and fell asleep again.
However, he insisted he planned to go get breakfast in the morning before driving to work.
At his trial, O’Neill took issue with the application of a section of the Criminal Code that assumes that someone in the driver’s seat is deemed to have care or control of the vehicle unless they can show they had no intention of setting the vehicle in motion.
The trial judge sided with the prosecution that the presumption applied – and that he had failed to rebut it.
On his initial appeal, he argued his evidence could have supported the conclusion that he had no intention to drive until he had sobered up. The summary appeal judge rejected his view that his intention to drive later did not automatically rebut the legal presumption that he had care and control of the truck when he was found drunk.
In declining to hear the case, the Appeal Court noted leave to challenge a decision on a question of law and is granted sparingly and that his grounds were weak.
“(O’Neill) did not satisfy the trial judge that it was his intention to leave the vehicle and to walk to some unidentified place for breakfast,” the Appeal Court said.
“(His) evidence on this point was ambiguous at best, and he has identified no palpable and overriding error in the trial judge’s assessment of that evidence.”
As such, the Appeal Court agreed with the trial judge that O’Neill had failed to rebut the presumption of care and control.