O’leary case is a ‘house of cards,’ defence argues

Both sides argue over details of speed, light and alcohol

The prosecution has “not a scintilla of evidence” that Linda O’leary operated her boat in a careless manner on the night of a crash on Ontario’s posh Lake Joseph that left two people dead, her lawyer said Thursday in his closing arguments.

Brian Greenspan, who’s representing the wife of celebrity investor Kevin O’leary in her trial for a charge under the Canada Shipping Act, argued the Crown’s case against his client was based upon “conjecture and speculation” and that it is a “house of cards.”

“Speculation cannot replace proper inferences based on evidence,” Greenspan argued.

O’leary, who has pleaded not guilty, is facing a fine, but no jail time, if convicted of operating a vessel in a careless manner.

In his closing arguments, the lead prosecutor, Samir Adam, argued that Linda O’leary did operate her boat in a careless manner, driving too quickly in the darkness, and that had she been paying more attention, the crash would not have happened.

“Slow is the safe speed at night,” Adam said.

Adam argued that the testimony of Kevin O’leary, who was a passenger on board the boat at the time of the crash, suggested they weren’t, in fact, looking out for unlit objects on the lake.

“They assumed, wrongly, that if they didn’t see any lights, there was nothing in their way. This is clearly in contravention of the collision regulations and a breach of Linda’s duty to not operate her vessel in a careless manner,” Adam told the court.

On the night of Aug. 24, 2019, Linda O’leary, along with her husband and another friend, were aboard their Cobalt 202cs, a water ski boat. O’leary, Greenspan said, is a “confident, able boater,” and Kevin O’leary, testifying this week in his wife’s defence, said she was a better boater than he, and the designated driver on nights out.

Another party, out stargazing, was aboard a Super Air Nautique G23, a wakeboard and wakesurf boat.

At about 11:30 p.m., the O’leary boat crashed into the Nautique.

Susanne Brito, 48, from Uxbridge, Ont., and Gary Poltash, 64, of Florida, both died of blunt force trauma. Several others were injured.

The trial has taken about four weeks in a courtroom in Parry Sound, Ont., and the court has heard from a number of witnesses, including those who were aboard the Nautique, the O’learys’ son and friends, police officers and emergency responders.

Much of the courtroom drama has pivoted around whether or not the Nautique had its navigation lights on and, if they were off, whether or not O’leary can still be blamed for hitting the other boat.

Video of the crash, captured in the distance by a dockside security camera at the O’learys’ cottage, shows the light of the O’leary boat suddenly stopping and bouncing back in the water of a dark lake. The larger boat’s lights only become visible 49 seconds after the crash.

Richard Ruh, an American doctor, was operating the Nautique at the time was also charged for not having his lights on. He pleaded guilty and paid a fine, but maintains he did so solely to save legal fees, and that the lights were in fact on.

“There can be no rational, reasonable evidential foundation for a suggestion that the Nautique was anything other than invisible to Mrs. O’leary on that dark, moonless night,” Greenspan told court.

But Adam argued that, based on police reconstructions of the crash, the other boat would have been visible — had O’leary been piloting her boat at a lower speed. Adam said the Ontario Provincial Police were able to see the other boat in their reconstruction when travelling at five miles per hour and argued that the passengers on the Nautique said the O’learys’ boat was travelling fast.

Court has heard that the O’leary boat may have been travelling between 20 and 30 miles per hour at the time of the crash.

Greenspan argued the people aboard the Nautique would not have been able to estimate speed with “any credibility or reliability.” He also said the police, even knowing exactly where the other boat was in the reconstruction, almost hit it and that, moreover, there was no evidence before the court that five miles per hour was, in fact, the proper and safe speed.

“Nothing in the reconstruction supports the Crown’s theory, it’s all just fantasy, I suggest,” Greenspan said.

Adam also suggested that regardless of whether or not the lights were on, regardless of whether or not the crash had happened, O’leary was still driving carelessly, given the darkness of the night.

“The collision was a tragic consequence of the accused’s carelessness. If the Cobalt had missed the Nautique, the accused’s conduct would still have been careless,” Adam said.

In their closing arguments, both sides also considered

SPECULATION CANNOT REPLACE PROPER INFERENCES BASED ON EVIDENCE.

the presence of alcohol.

In the trial, Const. Michelle Ingham told the court O’leary had blown an “alert” range on an alcohol screening device following the crash. No further testing to determine intoxication was done.

Greenspan said there was “no evidence of impairment” on O’leary’s part. O’leary had told Ingham she had one drink following the crash, court has heard. Kevin O’leary told the court she “might have” had a watered-down drink prior to the crash. Trevor O’leary, Linda’s son, said she had wine at lunch.

Adam, though, said the court needed to make no finding about O’leary’s intoxication. Describing Linda O’leary as the “guru” of boating in the family, he pointed out O’leary’s personal rules, one of which was no alcohol, which, in this instance, means she broke her own rules.

Adam also argued that O’leary, who initially denied having anything to drink, had “lied” to the police and therefore any evidence she’s given should be viewed skeptically.

“This significantly impacts Ms. O’leary’s credibility,” Adam said.

The case is put over until Sept. 14, when Judge Richard Humphrey will deliver his decision.