Ontario Court of Appeal: R. v. Grkovski New Trial Mandated for Boating Crash

• The Ontario Court of Appeal ordered a new trial for a boat owner facing impaired operation and criminal negligence charges after a fatal boating crash.
• The Court found the trial judge incorrectly limited the assessment of "care or control" to the moment of collision, rather than the entire trip.
• Section 320.11 of the Criminal Code defines vessel operation to include exercising care or control, which can be shared by multiple individuals.
• The appellate court emphasized that criminal negligence assessments for boat owners must consider their broader conduct and duties as captain, even if not actively driving.
• The case, R. v. Grkovski, 2026 ONCA 728, clarifies and expands the potential liability for non-driving boat owners in serious incidents.

By clarifying that "care or control" under s. 320.11 of the Criminal Code extends beyond the immediate moment of a crash and can be shared among multiple parties, the Ontario Court of Appeal has broadened the potential for accountability for vessel owners, even when they are not actively at the helm.

The Ontario Court of Appeal has mandated a new trial for a boat owner previously acquitted of impaired operation and criminal negligence charges following a fatal boating accident. The case, R. v. Grkovski, 2026 ONCA 728, stems from a May 2022 incident near Toronto Centre Island that resulted in two fatalities and injuries to two other passengers. The owner had hosted several individuals aboard his 30-foot vessel, where both he and some guests consumed alcohol and cocaine.

During the return journey to the Toronto mainland, the owner reportedly relinquished control of the helm to another passenger at various times and left the bridge without supervision. The vessel subsequently collided with an embankment situated outside the designated channel, causing it to capsize. At the initial trial, the Crown presented two primary arguments for liability: either the owner was operating the boat while impaired at the moment of the collision, or he maintained care or control of the vessel even though another individual was at the wheel. The trial judge ultimately dismissed the second theory, concluding there was insufficient evidence to hold the owner accountable as a non-driver. Based on the finding that the owner was not actively driving at the time of the crash, the judge acquitted him of all eight charges.

The Ontario Court of Appeal determined that the trial judge applied an incorrect legal framework when evaluating the boat owner's potential liability, particularly concerning the concept of "care or control." The appellate court clarified that the assessment of care or control should not be confined solely to the precise moment of the collision but must encompass the owner's entire conduct throughout the return trip. This interpretation aligns with section 320.11 of the Criminal Code, which broadly defines operating a vessel to include navigation, assisting in navigation, or exercising care or control. Crucially, the Court emphasized that multiple individuals can simultaneously exercise care or control over a vessel.

Furthermore, the Court of Appeal identified a failure by the trial judge to adequately consider the owner's broader conduct and inherent legal duties when evaluating the criminal negligence charges. Key evidence that should have been weighed included the owner's own alcohol impairment, his intermittent operation of the vessel, his decision to leave the helm unattended, and his overarching responsibilities as the captain. The Court reiterated that criminal negligence necessitates a marked and substantial deviation from the standard of a reasonably prudent person, where the accused either consciously accepted an obvious and serious risk or demonstrated a complete disregard for such a risk. The owner's argument that the Crown's alternative theory would lead to an unfair trial was also rejected by the appellate court, which noted that the Crown's questioning during the initial proceedings had sufficiently introduced the issues of care or control and the owner's responsibilities. The Court also affirmed that the original charges were broad enough to encompass this alternative theory of liability, ensuring that a new trial would provide the defense with an opportunity to respond fully.

The ruling in R. v. Grkovski carries significant implications for individuals who own and operate vessels, particularly regarding the scope of their liability in boating incidents. By clarifying that "care or control" under s. 320.11 of the Criminal Code extends beyond the immediate moment of a crash and can be shared among multiple parties, the Ontario Court of Appeal has broadened the potential for accountability for vessel owners, even when they are not actively at the helm. This decision underscores that a boat owner's duties as captain are continuous and encompass the entire duration of a voyage, regardless of who is steering at any given point.

This judgment serves as a critical reminder that a boat owner's responsibilities are comprehensive, requiring constant vigilance and adherence to safety protocols. The Court's emphasis on considering the owner's overall conduct, including impairment, delegation of duties, and supervision, when assessing criminal negligence, establishes a more expansive framework for determining culpability. It highlights that the standard for criminal negligence for a boat owner, even a non-driving one, involves a thorough examination of their actions and omissions against the benchmark of a reasonably prudent person. The order for a new trial on all charges reinforces the judiciary's commitment to ensuring that all relevant aspects of a boat owner's conduct are properly scrutinized in cases involving serious harm or death on the water.

Lawyers defending or prosecuting cases involving vessel owners should note the Ontario Court of Appeal's clarification that 'care or control' under s. 320.11 of the Criminal Code is not restricted to the moment of collision and can be exercised by multiple individuals. Furthermore, criminal negligence assessments for boat owners must consider their broader conduct and duties as captain, even if not actively driving, expanding potential liability.

Source: Reporting on the R. v. Grkovski decision