O’Leary, the wife of celebrity businessman Kevin O’Leary, was in the driver’s seat returning to her cottage from a dinner party when her boat collided with another vessel in Seguin, Ont., on the night of Aug. 24, 2019. Kevin O’Leary and a family friend were also on the boat with Linda at the time of the crash.
Two people on the other boat — Gary Poltash, 64, from Florida, and Suzana Brito, 48, from Uxbridge, Ont. — died from their injuries. Three others were also hurt.
On Tuesday, Justice Richard Humphrey said court concluded that the Crown failed to establish evidence that Linda O’Leary drove her boat without due care and attention or without reasonable consideration for others.
“The Crown’s submission, in essence, is that the defendant Linda O’Leary ought to have been mindful of the potential risk of an unlit boat being in her path, and by reason thereof, should have driven at a lesser speed than she did so as to avoid the collision,” Humphrey said.
He told court the Crown’s argument almost suggests that no one should operate a boat at night under any circumstances.
He also said the Crown’s argument essentially “disregards” the case law that relates to Linda O’Leary’s circumstances.
Speed of the O’Leary boat
In the decision, Humphrey said the court was unable to draw a conclusion regarding the speed of the O’Leary boat, including whether it was “excessive.”
He said the Crown didn’t present expert evidence to establish that the planing of the O’Leary boat was unsafe. He also said the Crown didn’t call in expert evidence to suggest a safe speed in the circumstances of the crash.
“The Crown produced no expert evidence probative of safe boating practices or safety regulations that the defendant contravened,” Humphrey told court Tuesday.
Navigation lights on the other boat
During Linda O’Leary’s trial, a key point of contention was whether the navigation lights on the other boat were on.
The other vessel, a 16-seat Nautique, belonged to Irv Edwards, though his friend Richard Ruh had taken over driving at the time of the crash.
Humphrey said court has “no hesitancy” in concluding that the lights on Edwards’ boat were off.
He said video evidence from the O’Leary cottage — and somewhat from Edwards’ cottage — makes it “clear” that the navigation lights weren’t on at the time of the crash.
“The video evidence shows the O’Leary vessel’s navigational lights to be clearly visible,” Humphrey said. “If on, the Nautique’s lights ought to have been equally visible.”
Questions over Linda O’Leary’s alcohol consumption
Humphrey said court concluded that alcohol “played no part” in relating to the charge that Linda O’Leary faced.
During her trial, police testified that Linda O’Leary registered an “alert range” of blood alcohol on a breath test that was taken shortly after the crash.
However, Humphrey said there was evidence from Crown witnesses that Linda O’Leary was “cautious” of what she drank when operating her boat and that she had made it known that she was the designated driver on the night the crash occurred.
Video evidence of Linda O’Leary’s arrival and departure from the other cottage showed “no lack of co-ordination” or “any other limitation” that could be attributed to alcohol consumption, Humphrey said.
“The only evidence of the presence and effects of alcohol came from Const. Ingram, when she spoke to Mrs. O’Leary on (a) second occasion at 1:12 a.m.,” he told court, adding that the roadside screening device is not considered scientific for court purposes.
Humphrey said the paramedic who attended to Linda O’Leary after the crash made no observations of the effects of alcohol. He also said there’s evidence that a person who was at the O’Leary cottage after the crash gave Linda a partially filled glass of clear liquid from the bar after she suggested she needed a drink to calm her nerves.
The decision on the O’Leary trial was read out in Parry Sound court and streamed over Zoom on Tuesday morning.
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