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Police documents in Kevin O’Leary boat crash case won’t be given to victims' families before trial

A federal judge won’t force authorities to turn over police documents about their investigation of the fatal boat crash involving celebrity investor Kevin O’Leary to the families of two people killed in a high-profile collision in Ontario’s cottage country.

The families of two people who died when the pontoon boat they were passengers on collided with a speedboat on Lake Joseph, north of Toronto, on Aug. 24, 2019 — Susanne Brito, 48, from Uxbridge, Ont. and Gary Poltash, 64, from Florida — are suing the owners and drivers of both vessels.

The speedboat is owned by Kevin O’Leary, but he was a passenger that night while his wife, Linda O’Leary, was driving; the pontoon was owned by Irv Edwards, but driven by Richard Ruh at the time of the nighttime crash, according to court documents.

Family members of the deceased asked the Federal Court to order the Ontario Provincial Police and the Public Prosecution Service of Canada to turn over the investigation’s notes and Crown prosecution documents to allow them to prepare for its civil litigation.

They wanted the police photos, accident reconstructions, vehicle inspection notes, alcohol influence reports, witness statements, officer notebooks and any other document or reports from the police probe.

The families said it is unfair that the O’Learys and Ruh already have access to the information from the police probe — because they each faced a police charge over their respective actions that night and prosecutors turned over the documents to their lawyers in those cases.

Linda O’Leary was charged with operating a vessel in a careless manner, without care and attention or without reasonable consideration for other persons. Ruh was charged with failing to exhibit a stern light on a power vessel underway.

While neither charge carries a prison sentence as a potential penalty, they are considered criminal in nature, court said, meaning the prosecution was required to disclose all of the documents to the criminal defence counsel of both of them for their defence.

Ruh has since settled his charge; he did not contest the case at trial and was convicted without him appearing. Linda O’Leary’s trial is scheduled to begin on June 14 and to conclude by July 23.

Meanwhile, in light of the parallel civil case, the O’Learys, Rue and Edwards are arguing that their potential liability is limited to $1 million plus interest under the Marine Liability Act, which is a federal regulation, hence the involvement of the Federal Court.

The parties agreed to pause their civil lawsuit while the liability issue is decided.

In arguing against the liability limit, the victim’s families sought to level the playing field by gaining access to the same body of evidence released to the parties during the court process for the police charges.

The OPP and the prosecutors objected to the request, arguing it would jeopardize the integrity of the prosecution and a fair trial.

The government argued the public interest in the case has been such that information in the police documents “could feed media reports, rumours or gossip, come to the attention of witnesses and, especially given the intense public scrutiny, might influence their evidence at the criminal trial.”

The agencies said they would provide the disclosure to the families, minus any necessary redactions, as soon as the criminal matters are complete.

The Federal Court said the documents were certainly relevant to the civil procedure.

“The information was collected and disclosed on the basis, inter alia, that it would be relevant to establishing or disproving that Ms. O’Leary was negligent in the operation of the vessel and that Dr. Ruh failed to display the required navigation lights, issues that go squarely to their conduct and liability for the collision, both of which are disputed,” Mireille Tabib, Prothonotary with the Federal Court, wrote in her decision, first issued in February but amended and published this week.

The more difficult question was whether the families should be made to wait to get it.

The families argued that lawyers for the O’Learys and Ruh have it already, “allowing them to conduct a fulsome investigation into the incident,” leaving the families at a disadvantage. They also fear it could delay the civil proceeding and rob them of the chance to move on with their lives.

Tabib did not accept their arguments.

“Even if the Crown brief were disclosed today, the O’Learys have taken the position that they ought not to be compelled to submit to examinations for discovery until the conclusion of Ms. O’Leary’s regulatory charges trial,” Tabib said in her decision. That position has not been determined by the court but is a possibility.

“The Court does understand and appreciate the Defendants’ desire to proceed with and conclude this litigation as quickly as possible so that they can gain closure and move on with their lives. However sympathetic the Court may be to that human need, it does not constitute a procedural or substantive unfairness or prejudice in the litigation,” her ruling says.

Meanwhile, last week, after a case management meeting between the parties, the court laid out a timetable for the Federal Court portion of their dispute. Each party’s materials will be exchanged by the end of April, and the next case management meeting is scheduled for late May.

The examination of the parties — meaning private sworn testimony of those involved — is scheduled for September.

O’Leary, a businessman, came to wide public prominence as a colourful venture investor on CBC’s business reality TV show Dragon’s Den. Since 2009, he has appeared on the same role on the U.S. version of the show, called Shark Tank. In 2017, he made a failed bid for leadership of the federal Conservative party.

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Copyright Postmedia Network Inc., 2021

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