Linda O’Leary trial wraps after defence argues other boat’s lights were off at time of crash

Overwhelming evidence showing another vessel’s lights were off at the time Linda O’Leary crashed into it means she shouldn’t be found guilty in the deadly boat collision, her lawyer argued in court Thursday.

In closing arguments of the provincial court trial, Brian Greenspan said his client ought to be exonerated in the August 2019 crash on Lake Joseph, north of Toronto, that killed two people.

“She was doing all the right things at the right time when this terrible tragedy occurred,” Greenspan told the Parry Sound, Ont., court. “The Crown’s case, in our submission, is one of conjecture and speculation.”

Linda O’Leary, the wife of celebrity businessman Kevin O’Leary, has pleaded not guilty to one charge of careless operation of a vessel under the Canada Shipping Act.

Closing arguments focus on vessel’s lights

Greenspan argued that it’s not possible to know the speed Linda O’Leary was driving, whether she was impaired by alcohol at the time or whether she was operating the boat in a careless manner.

He said his client should be cleared of responsibility because the Crown couldn’t prove that any of those factors played a role in her actions.

He also told court that there is strong video and witness evidence that the lights of the other vessel — a Nautique — were off at the time of the crash.

“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 the court.

The Crown argued, however, that defence testimony from Kevin O’Leary revealed that the couple were not looking out for the possibility of unlit objects on the water, as they should have been.

“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,” federal prosecutor Samir Adam told the court.

Adam made the case Thursday that given the pitch-black darkness of the night, Linda O’Leary should have been driving slower than the “planing” speed her husband testified they were travelling at. Not doing so, Adam said, constituted careless operation of the boat under the circumstances.

He also pointed to Kevin O’Leary’s statement to police and court testimony that he could see the other boat when it was “at a distance of five feet” as proof that the other boat was not invisible, as the defence has maintained.

Kevin O’Leary says he saw ‘zero light’ from other vessel

The question of whether the other boat had its lights on has been a point of contention in the case.

Kevin O’Leary testified in his wife’s defence Wednesday, saying he saw “zero light” coming from the other vessel involved in the late-night crash on Lake Joseph until after the collision.

The former “Dragon’s Den” star was a passenger on the family’s pilot boat at the time of the crash, along with another friend who was injured.

Witnesses on the other boat, including the owner who was charged in the crash with failing to exhibit a navigation light, testified that they remembered some lights being on.

But Greenspan said the testimony of those witnesses should be treated with caution.

He argued the judge should reject their evidence because it doesn’t line up with video showing the lights on the nearly five metre-long Nautique vessel were off at the time of the crash, or with testimony from witnesses at the O’Leary cottage who said they saw the other boat’s lights turn on only after the crash.

Greenspan also pointed to witness testimony from Linda O’Leary’s husband saying she was an experienced and careful boater, and followed proper safety precautions that night.

O’Leary said he didn’t recall if wife drank before crash 

Kevin O’Leary also testified that he did not recall if his wife had consumed alcohol in the hours before the crash.

Court earlier heard testimony from a police officer who said Linda O’Leary registered an “alert range” level of blood alcohol on a breath test taken shortly after the crash. The officer said Linda O’Leary told her she had only had one drink after the crash.

Greenspan argued Thursday that the Crown does not have evidence to prove the meaning of that alert test result or whether it impacted his client’s boating.

He also pointed to video evidence of her leaving a dinner party at another cottage just before the late night crash in which she appeared to be functioning normally, and to testimony from her husband that she was an experienced boater who followed safety protocols that night.

In the Crown submissions, Adam argued that the skills of a particular driver aren’t relevant when weighing such a case. He also argued that cases involving regulatory legislation rather than criminal legislation often give greater weight to public good over individual interests.

“This is about public safety, it is not about Linda O’Leary,” Adam said.

Gary Poltash, 64, of Florida, and Suzana Brito, 48, from Uxbridge, Ont., died from their injuries after the crash and three others were also hurt.

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