Last week, Linda O’Leary (“O’Leary”), wife of celebrity businessman and Shark Tank star Kevin O’Leary, was found not guilty of the charges of careless operation of a vessel under the Canada Shipping Act following a 13 day hearing.
According to the federal regulations, the penalty that O’Leary was facing was a fine of up to $10,000 if she was found to be acting in contravention of the Act.
THE FATAL ACCIDENT
The charge against O’Leary arose out of a collision that occurred on Lake Joseph in Muskoka on August 24, 2019. That evening, O’Leary was the designated driver of the boat she was in as she returned to her cottage from a dinner party at a friend’s cottage with her husband and another friend on board.
Another boat on the lake belonging to Irv Edwards (“Edwards’ boat”), was being driven by Richard Ruh (“Ruh”).
At approximately 11:30 pm, the two boats collided. The passengers on Edwards’ boat were knocked to the floor. Gary Poltash of Florida died on the scene of blunt force trauma to the neck and head. Suzana Brito from Uxbridge died in hospital from blunt force trauma to the head from being hit by the boat. Three others who were on board the Edwards’ boat also suffered injuries due to the crash.
An agreed statement of facts was read in court describing the events that transpired when the two boats collided.
Edwards testified at the trial that he hosted the Ruhs and their guests for dinner, along with his cousin and his girlfriend Brito and Edwards’ best friend Potash. After dinner they decided to go stargazing on Edwards’ boat.
Edwards testified that he asked his friend Ruh to take over driving the boat so he could look at the stars. He noted that there was no moon that night and that Ruh knows boats “much longer” and “better” than him.
Police investigators took to the waters on Lake Joseph on the night of September 5, 2019 to re-enact the deadly crash. As a result of the simulation, both boat drivers were charged. Ruh was charged for not having his lights on at night and O’Leary was charged with careless operation of a vessel.
Ruh pleaded guilty to the charges against him, but maintained that he only did so to avoid paying additional legal fees.
One of the central issues in the case was whether the Edwards’ boat had its lights on. The defence argued that the Edwards’ boat was basically invisible to O’Leary.
Ruh testified that the boat he was driving had its navigation lights on at the time of the collision, which included a white overhead light and two green and red lights on the bow, as well as the lights on the boat’s control panel.
Following the re-enactment of the crash, the lead OPP investigator Detective-Constable Sean Richardson determined that it was unlikely that the Edwards’ boat had its overhead lights on as it would ruin the view of the stars. Richardson testified:
I had issue seeing stars. It was a clear night, and I wasn’t able to enjoy myself looking at the stars. It was a very bright light and it irritated me to look into it. … When the light was off, I was able to see the stars.
Ontario Court Justice Richard Humphrey concluded that the Edwards’ boat had its lights off when the collision occurred based upon the security videos from both the O’Leary and Edwards’ cottages.
Justice Humphrey stated in his oral judgment:
The purpose of the venture into the open waters of Lake Joseph by Mr. Edwards and his guests 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 have been to defeat their purpose.
Justice Humphrey also noted that there was insufficient evidence to establish the speed that the O’Leary vessel was travelling or what speed would have been appropriate under the circumstances. Furthermore, he rejected the Crown prosecutor’s submission that O’Leary should have driven at a lower speed and considered the potential risk of an unlit boat. He stated:
This submission almost suggests that no one should operate a boat at night under any circumstance.
Justice Humphrey found that Crown prosecutors failed to prove that O’Leary acted in a careless way on the night of the crash. He stated:
She knew the waters of Lake Joseph and had travelled the distance between her cottage and the Smith cottage in daylight and at night on numerous occasions. She took precautions to make sure her boat was properly equipped for night navigation. … The boat was in good working order and it had all requisite navigational lights activated.
In addition, Justice Humphrey dismissed the notion that alcohol played any part in the collision.
If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times. We are available when you need us most.