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Linda O'Leary's blood alcohol in 'alert' range after deadly boat crash, officer testifies

Linda O'Leary registered a blood alcohol level in the "alert" range on a breath test taken shortly after a boat crash that killed two people and injured several others, a police officer testified at her trial in Ontario court Monday.

O'Leary seemed 'nervous' and 'hesitant' to do breath test, officer says

A view from the Hamer Bay Marine looking out into Hamer Bay in the Muskoka region north of Toronto. The bay connects to Lake Joseph, where a deadly boat crash took place on Aug. 24, 2019. Linda O'Leary is on trial on a charge of careless operation of a vessel under the Canada Shipping Act in connection with the crash, which killed two people. (Robert Krbavac/CBC)

Linda O'Leary registered a blood alcohol level in the "alert" range on a breath test taken shortly after a boat crash that killed two people and injured several others, a police officer told an Ontario court Monday.

O'Leary — the wife of celebrity businessman Kevin O'Leary — is standing trial in provincial court in Parry Sound on a charge of careless operation of a vessel under the Canada Shipping Act in connection with the Aug. 24, 2019, crash on Lake Joseph, north of Toronto. 

She has pleaded not guilty.

An Ontario Provincial Police officer dispatched to the O'Leary cottage in the immediate aftermath of the crash said she found Linda O'Leary nursing a swollen ankle and foot in the family's boathouse and questioned her as part of a preliminary investigation.

OPP Const. Michelle Ingham testified O'Leary repeatedly told her she had done "nothing wrong," and that "the other boat didn't have any lights on and she didn't see it."

O'Leary, who court has heard was the one operating the boat at the time of the late-night crash, told the officer before being asked that she hadn't consumed any alcohol, Ingham testified at the trial, which began June 14.

O'Leary 'hesitant' to provide sample, officer says

But the constable said she grew suspicious because O'Leary's eyes appeared glossy and her pupils seemed dilated — both signs of alcohol consumption. Ingham said she also smelled alcohol on the woman's breath when they spoke.

When asked directly whether she had consumed any alcohol, O'Leary initially denied it, but later said she had one drink after her return to the cottage following the crash, the officer testified.

Linda O'Leary and her husband, celebrity businessman Kevin O'Leary, arrive at the American Music Awards at the Microsoft Theater in Los Angeles. O'Leary has pleaded not guilty. (Jordan Strauss/Invision/The Canadian Press)

Ingham wasn't convinced, she said, and asked O'Leary to provide a breath sample.

"She seemed to be nervous and hesitant to provide a sample," and asked if she was obligated to do so, the constable recalled.

The officer replied there was no obligation to provide a sample, but that failing to do so would lead to a criminal charge, which she said appeared to shock O'Leary. 

O'Leary did agree to the test and her breath sample indicated a blood alcohol range between 50 and 99 milligrams of alcohol per 100 millilitres of blood, Ingham told the court.

"I could tell that she was upset by the news," she said. 

The maximum legal blood alcohol concentration in Canada is 80 milligrams of alcohol per 100 millilitres of blood.

In Ontario, anything between 50 and 80 milligrams per 100 millilitres of blood is considered a warning range that carries a penalty of a fine and a licence suspension under the Highway Traffic Act for a first offence, though it does not lead to a criminal charge. 

Paramedic exam showed no pupil dilation, defence says

Under cross-examination by the defence, Ingham acknowledged she was not aware that paramedics had examined O'Leary earlier and found no sign of dilated pupils or glossy eyes.

Defence lawyer Brian Greenspan also suggested that any potential dilation of O'Leary's pupils could have been caused by paramedics shining a light directly into his client's eyes during the examination.

The O'Learys' cottage on Lake Joseph is seen in this 2019 image taken by a drone. An OPP officer dispatched to the cottage in the immediate aftermath of the crash said she found Linda O'Leary nursing a swollen ankle and foot in the boathouse and questioned her as part of a preliminary investigation. (CBC)

He also noted O'Leary did not know at that time that anyone on the other boat had been hurt in the collision, and Ingham confirmed she did not disclose that two people had been critically injured.

Earlier in her testimony, the officer said O'Leary described calling out to the other boat to ask if anyone was injured and not hearing a response, after which she said the other boat took off.

The owner of the other boat previously told the court he shouted back that they had injured and unconscious people on board and would be returning to shore to treat them.

Two dead, three injured in crash

Gary Poltash, 64, from Florida, died on shore that night, while Suzana Brito, 48, from Uxbridge, Ont., died in hospital a few days later.

An agreed statement of facts read in court on the first day of trial last month said they died as a result of blunt force trauma, to either the head or the head and neck, from being struck by a boat.

The crash also left three people injured.

The operator of the other boat, Richard Ruh, of Orchard Park, N.Y., was also charged in the incident. He faced one count of failing to exhibit a navigation light while underway.

Ruh previously told the court he was issued a ticket and eventually paid the fine after contesting it for more than a year.

Kevin O'Leary, the former star of the popular CBC show Dragons' Den, was on the boat with his wife and son and others that night.

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