Court finds trial judge failed to properly assess boat owner's care or control and legal duties
The Ontario Court of Appeal has overturned the acquittals of a boat owner facing impaired operation and criminal negligence charges arising from a fatal boating crash, finding that the trial judge applied an incorrect legal framework when assessing his potential liability as a non-driver.
In R. v. Grkovski, 2026 ONCA 728, the court ordered a new trial on all eight charges, which involved two deaths and injuries to two passengers.
The charges arose from a May 2022 boating trip near Toronto Centre Island. The boat owner hosted several passengers aboard his 30-foot vessel, during which he and some passengers consumed alcohol and cocaine.
During the return trip to the Toronto mainland, the owner periodically handed the wheel to another passenger and left the bridge unattended. The boat subsequently struck an embankment outside the proper channel and overturned.
At trial, the Crown advanced two theories of liability. It argued that the owner either operated the boat while impaired at the time of the crash or retained care or control of the vessel despite another passenger driving.
The trial judge rejected the second theory, finding insufficient evidence to hold the owner liable as a non-driver. After accepting that the owner was not driving when the crash occurred, the judge acquitted him of all charges.
The Court of Appeal found that the trial judge incorrectly restricted her assessment of care or control to the time of the collision, rather than examining the owner's conduct throughout the return trip.
The court explained that s. 320.11 of the Criminal Code defines operating a vessel to include navigating, assisting in navigation, or exercising care or control. Multiple individuals may exercise care or control simultaneously.
The appellate court also found that the trial judge failed to assess the owner's broader conduct and legal duties when considering the criminal negligence charges.
Relevant evidence included the owner's alcohol impairment, his intermittent operation of the vessel, his decision to leave the wheel unattended, and his responsibilities as captain.
The court explained that criminal negligence requires a marked and substantial departure from the conduct of a reasonably prudent person, where the accused either recognized and ran an obvious and serious risk or gave no thought to that risk.
The owner also argued that allowing the Crown's alternative theory would make the trial unfair. The Court of Appeal rejected that argument, finding that the Crown's questioning had sufficiently raised the issues of care or control and the owner's responsibilities during trial. It also noted that the charges encompassed the alternative theory of liability and that a new trial would allow the defence to respond to it.
The court allowed the Crown's appeal, set aside the acquittals and ordered a new trial on all charges.
