Toronto Star

O’Leary found not guilty after boat crash

- BETSY POWELL COURTS BUREAU SARAH BISSONETTE

A judge has acquitted Linda O’Leary of the non-criminal charge of careless operation of a boat in a 2019 collision that killed two on a cottage country lake known as a playground for the rich and famous. Following a high-profile, 13-day trial this summer in Parry Sound, Ont., Justice Richard Humphrey on Tuesday picked apart the Crown’s case which alleged O’Leary was driving her boat at an excessive and unsafe speed when it collided with a stopped vessel on a moonless night.

Reading some of his decision in court, Humphrey said he found that “alcohol played no part” in O’Leary’s operation of her boat, nor could he determine how fast her vessel was travelling, “much less that it was excessive.” He also concluded the lights on the other boat were off, a key issue at the trial.

“This court has no hesitancy in concluding that the Crown has failed to establish ... that Linda O’Leary operated her vessel without due care and attention or without reasonable considerat­ion of other persons.”

O’Leary is married to TV celebrity and businessma­n Kevin O’Leary, who served as a lookout at the time of the Aug. 24, 2019, crash on Lake Joseph.

She left the courthouse after the verdict, leaving defence lawyer Brian Greenspan to speak on her behalf.

“On every basis, we won this case,” Greenspan told reporters, reiteratin­g that the Canada Shipping Act charge should never been laid and that the evidence showed O’Leary at all times that evening operated her vessel in a manner that was “prudent and cautious.”

Inside the courtroom — which was limited only to participan­ts while spectators watched via livestream — O’Leary was “very emotional” after the verdict, Greenspan said, “burdened by the fact that she was involved in an accident in which two people tragically lost their lives, despite the fact that she didn’t contribute in any way to that tragedy.”

Gary Poltash, 64, of Florida, died at the scene, while Suzanne Brito, 48, from Uxbridge, died a few days later.

A lawyer representi­ng both the Brito and Poltash families in lawsuits against “negligent parties” said Tuesday the acquittal “was a further disappoint­ment for the families in their pursuit of justice.” However, the acquittal has no bearing on the victims’ suits as “a different standard of fault applies, and additional evidence will be heard by a different court,” lawyer Patrick Brown said in the statement.

In his ruling, the judge found that not only was there “insufficie­nt evidence of her speed at the time of the collision to allow for any conclusion as to carelessne­ss,” but that evidence showed O’Leary acted responsibl­y that evening, declaring herself a designated driver.

“Any alcohol digestion was minimal and she took pains to make certain that was the case. There was no evidence that alcohol played a part in the outcome,” Humphrey said.

Prosecutor­s had argued she was still guilty of careless driving because she was driving too fast — despite presenting no firm evidence of that. Humphrey appeared to criticize the Crown for producing no expert evidence on safe boating practices or regulation relating to speed. He said the prosecutio­n’s argument was tantamount to expecting O’Leary to act “as a guarantor against any possible harm to others — even if those others acted irresponsi­bly. Most assuredly, that is not the state of the law.”

The collision occurred around 11:30 p.m. as the O’Learys returned to their cottage after attending a dinner party less than five kilometres away. Linda O’Leary was behind the wheel of the family ski boat when it collided with the front end of the Super Air Nautique, a large boat that had stopped so passengers could stargaze.

On the central issue of the Nautique’s navigation­al lights; Humphrey said he had “no hesitancy” concluding they were off, notwithsta­nding the evidence of six passengers who testified they were on.

Video evidence presented in court “make it clear the navigation lights were not activated when the collision occurred. There is no logical explanatio­n to suggest otherwise in the evidence before this court,” he said reading his decision.

“The purpose of the venture into the open waters of Lake Joseph ... was to acquire an unobstruct­ed view of the night sky without interferen­ce from artificial light. It defies logic to suggest they would have travelled to that location and activated the lights, the effect of which would be to defeat their purpose.”

The judge observed that the operator of the Nautique had previously pleaded guilty to failing to display a navigation­al light. Also that an OPP marine accident reconstruc­tionist concluded the collision occured due to the Nautique failing to display proper navigation­al lights in the dark. While that OPP officer was a witness for the Crown, “his evidence essentiall­y favoured the defence,” Humphrey noted.

Linda O’Leary did not testify at trial. Her husband testified from Los Angeles, where he is a series regular on the popular TV show Shark Tank. He was not in court Tuesday but could be seen calling into the proceeding via zoom.

In their closing arguments, prosecutor­s argued his testimony, in which he described the journey home “on plane” in pitch darkness, amounted to a “confession” that his wife had been piloting the boat carelessly. Humphrey concluded the Crown had mischaract­erized Kevin O’Leary’s evidence.

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