Many people assume that an impaired driving charge depends on one question: who was behind the wheel? In R v Grkovski, 2026 ONCA 728, the Court of Appeal for Ontario made clear that the law is broader than that, especially on the water. The Court set aside the acquittals of a boat owner charged after a fatal crash on Toronto’s waterfront and ordered a new trial on all charges.
What Happened
On May 31, 2022, Filip Grkovski hosted a group of passengers on his 30-foot boat for a cruise to Toronto Centre Island, where the boat was tied up for several hours. He and some of his passengers consumed alcohol and cocaine.
Around 11:30 p.m., he drove the boat back toward the mainland. During the trip, he handed the wheel to a passenger from time to time with only cursory instructions. At times he left the bridge to argue with his girlfriend below deck. The boat strayed outside the safe channel, struck an embankment, and flipped. Two passengers drowned, and two others were injured. A toxicologist’s unchallenged evidence was that his blood alcohol level was over the legal limit.
He was charged with impaired operation causing death and bodily harm, and with criminal negligence causing death and bodily harm.
The Crown advanced two theories. The first was that he was driving when the boat crashed. The second was that, even if the passenger was steering at that moment, Mr. Grkovski was still operating the boat while impaired and had failed in his duty as its owner and captain. Before closing submissions, the trial judge ruled that there was not enough evidence to support the second theory and confined the Crown to the first. She then accepted his evidence that he was not driving at the moment of the crash and acquitted him.
The Crown appealed the acquittals to the Court of Appeal for Ontario.
The Legal Concepts
The Crown can appeal an acquittal only on a question of law. It cannot appeal simply because it disagrees with how the judge weighed the evidence.
Operating a vessel. Under the Criminal Code, “operating” a vessel includes navigating it, assisting in its navigation, or having “care or control” of it (s 320.11). Care or control is meant to be broader than the other two.
Criminal negligence. Criminal negligence is conduct that shows a wanton or reckless disregard for the lives or safety of others. It can arise from something a person does, or from failing to do something the law requires of them, known as a legal duty. The conduct must be a marked and substantial departure from what a reasonably prudent person would do.
Theories of liability. The Crown is generally entitled to rely on any route to guilt that the evidence can support. That entitlement is limited by the accused’s right to a fair trial.
The Court’s Reasoning
Writing for a unanimous panel, Justice Roberts held that the trial judge erred in law in how she understood both offences.
On the impaired operation charges, care or control is not frozen at a single moment. The court had to consider all the circumstances, from the time Mr. Grkovski put the boat in motion while impaired until the crash. More than one person can be in care or control of a vessel at the same time. Unlike a car, a boat can change hands easily without stopping. The trial judge had asked only whether he was assisting the other passenger and standing beside him at the moment of impact. The Court of Appeal held that this was too narrow. The Crown’s theory was not, as the trial judge had suggested, an import of civil vicarious liability. It correctly described the reach of care or control.
On the criminal negligence charges, the trial judge focused only on the handover of the wheel shortly before the crash. The court held she should have asked three questions:
what legal duty he owed his passengers as owner and captain;
whether anything he did, or failed to do, breached that duty; and
whether his conduct was a marked and substantial departure from that of a reasonably prudent person.
Because of these errors, relevant evidence went unaddressed. That evidence included the toxicology results; testimony about his angry and erratic behaviour and about the wheel being left unattended; his admission that he was beside the other passenger when the boat crashed; and his initial agreement in cross-examination that, as captain, he was responsible for his passengers’ safety (paras 41–46).
The defence argued that letting the second theory proceed would have been unfair. The court disagreed. The Crown had asked pointed questions throughout the trial about who was driving and about his responsibilities as captain, and the charges themselves covered that theory. The new trial also gives the defence a fresh opportunity to respond to it.
Why the Decision Matters
Grkovski confirms that for impaired operation of a boat, the inquiry looks at the whole voyage, not only the moment of impact. It also recognizes that an owner and captain may carry legal responsibilities toward passengers that can ground a criminal negligence charge.
The decision has limits. The Court of Appeal did not find Mr. Grkovski guilty. It held only that the Crown’s alternative theory should have been considered. Whether the evidence proves that theory beyond a reasonable doubt is a question for the new trial.
What This Means If You Are Facing Charges
If you are charged with an impaired operation or criminal negligence offence involving a boat, the fact that someone else was steering at the critical moment may not end the case. The court may look at your conduct over the entire trip, including whether you set the vessel in motion while impaired, how you supervised others, and what responsibilities you had as owner or captain.
The case is also a reminder that the Crown may advance more than one route to guilt, and that the defence needs to prepare for every theory the charges can reasonably support. At the same time, the right to a fair trial still protects an accused person from being genuinely misled about the case they have to meet.