Prosecutors have failed to prove that Linda O’Leary was driving her boat without caution or consideration for others when she collided with another ship in central Ontario two years ago, a judge ruled, on Tuesday, while rendering a verdict of not guilty.
Mme O’Leary, wife of famous businessman Kevin O’Leary, has been charged with reckless operation of a vessel under the Canada Shipping Act following the August 24, 2019 collision on the lake Joseph, north of Toronto.
Linda O’Leary was operating the boat at the time of the accident, which also carried her husband and a friend. The group was returning from a dinner at another chalet, and the court heard that Mr.me O’Leary was the designated driver.
The other boat, a Nautique, was carrying a group of friends on a stargazing excursion, the court heard. The boat was owned by Irv Edwards, who owned a cottage nearby, but his friend Richard Ruh was at the helm when the accident took place.
The two ships collided at 11:30 p.m. – an impact that knocked some of the Nautique’s passengers to the ground, the court heard. Two people on that boat – Gary Poltash, 64, of Florida, and Suzana Brito, 48, from Uxbridge, Ont. – died of their injuries. Three other people were injured.
In delivering his verdict, Ontario Court Judge Richard Humphrey found that the Nautique had its lights off when struck, despite testimony from passengers who said some lights were on.
Lights were a central issue during the trial, with the defense claiming the Nautique was essentially invisible to Mr.me O’Leary until after the collision.
Judge Humphrey noted Tuesday that safety videos from the O’Leary and Mr. Edwards cabins “clearly show” that the Nautique’s lights were not on when the boats made contact.
“The purpose of the adventure in the open waters of Lake Joseph by Mr. Edwards and his guests was to gain a breathtaking view of the night sky, without interference from artificial light,” observed the judge.
“It defies logic to suggest that they would have gone to this place and opened the lights, which would have had the effect of derailing their objective. ”
Mr. Ruh testified that he put his sweater on the console light to sift it, and subsequently pleaded guilty to failing to expose a stern light on a motor vessel under the Canada Shipping Act.
There was also insufficient evidence to determine how fast the O’Learys’ boat was moving, or what speed would have been appropriate under the circumstances, the judge found.
Humphrey J. rejected the Crown’s argument that Mr.me O’Leary should have considered the risk of there being an unlit boat and, therefore, driving at a slower speed than she did.
“This proposal almost suggests that no one should operate a boat at night under any circumstances,” Justice Humphrey said.
The judge also reviewed the evidence regarding Mr.me O’Leary, although prosecutors did not ask the court to draw conclusions regarding his intoxication.
An provincial police officer said at trial that Mr.me O’Leary had recorded an “alert” blood alcohol level in a breathalyzer shortly after the accident. The officer indicated that Mme O’Leary had told her that she had only had a drink, and that it was after the accident.
Justice Humphrey noted that the roadside drug test is not a “scientific device for forensic purposes” and cannot be used to determine the blood alcohol level of M.me O’Leary at all relevant times. The judge also noted that Mr.me O’Leary had not been charged with impaired driving.
“Had this court been required to make a finding of fact on the issue of alcohol impairment, or alcohol in the defendant’s system beyond the legal limit at the time of driving , there would have been no such conclusion under the evidence, ”he said.
“For greater certainty, this tribunal concludes, on the basis of the evidence before it, that alcohol played no role in the problems associated with the operation of a vessel without the necessary precautions and attention required or reasonable consideration for others. ”
The verdict was delivered at a hearing in Parry Sound, Ont., Which was also broadcast live.