Can accused be convicted in Lake Ontario boat crash even if he wasn’t behind the wheel?

Filip Grkovski’s lawyer argues he and his client had the right to know what Crown prosecutors’ theories or routes to conviction were, prior to his client taking the witness box Tuesday.

Alan Gold told Superior Court Justice P. Tamara Sugunasiri that it wasn’t until assistant Crown attorney Jackson Foreman asked Grkovski a series of questions during cross-examination, that led him to believe that the Crown was pursuing a new theory to liability.

Foreman suggested to Grkovski that even if he wasn’t driving his boat on the night of May 31, 2022, when it went crashing into rocks near Outer Harbour Marina, causing the boat to flip over and killing two people, Grkovski could be found guilty.

Grkovski is on trial for criminal negligence and impaired operation causing death after 24-year-old Megan Wu and 34-year-old Julio Abrantes were both trapped in the vessel and drowned.

“I made no objection in order for him to finish but in the evening after completing the submissions, we became concerned that maybe the Crown is serious because their key witness did not withstand questioning” Gold told Sugunasiri about Grkovski’s cross-examination.

The Crown’s key witness Edward Denkha took the witness stand on Friday and again on Monday and said Grkovski was driving the boat at the time of the crash.

Denkha testified Grkovski was angry after fighting with his girlfriend in a cabin below deck, came back up, took the helm and “floored it,” hitting the rocks. Gold argued not one person saw Grkovski driving the boat and accused Denkha of being the driver.

Grkovski testified Tuesday that he had given Denkha control of his boat and he knew where to go, testifying he went downstairs.

Gold said until the cross-examination of his client, he believed the only issue related to whether there was any reasonable doubt as to whether Grkovski was driving the boat at the time of the crash.

“It makes it unthinkable that the Crown could present an alternate theory at the end of the cross-examination of the accused. Your honor needs to hear submissions on permissibility and any legal basis for convictions,” said Gold.

“If we had notice of alternate theories admitting that Eddie (Denkha) was the driver based on allegations of criminal negligence or some theory of liability because Eddie was the driver, we would have moved to a directed verdict. There would have been preparation in evidence about the driver’s behaviour. Arguments for vicarious liability,” Gold said.

Assistant Crown attorney Jordan Howard told Sugunasiri that their theories of the case come down to the different ways in which the Criminal Code defines the word operational.

“This isn’t a case, where in my submissions, that driving is the sole way for your honour to find that he (Grkovski) was operating the vessel,” said Howard.

Sugunasiri asked if at any point they made it clear to defence what their arguments would be.

“No, I didn’t think I needed to. Because operational is broad in the code, I thought it was obvious,” said Howard.

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The judge said it wasn’t obvious to her because of the evidence tendered by the Crown.

“There were no questions about the safety rules of the captain. I didn’t know what the duties are as a captain. I don’t think I have evidence of those things so in my mind that wasn’t an issue until the end of the day yesterday,” said Sugunasiri.

Foreman explained they had not come up with an alternate theory pointing out that operating a vessel is right in the Criminal Code.

“Multiple people can be operating a vessel at the same time,” he said. “This is not some kind of back-up theory. This is the definition in the code.”

Sugunasiri said she was not surprised by Gold’s concerns. “Just because operation permits more than just driving, I think it’s a bit more nuanced than that … You’re using operating a vessel in a broader way than defence thought.”

Regarding the impaired operation charge, Howard said the judge can either find that Grkovski was driving the boat or she finds that Grkovski was not driving, it’s their submission that there’s a route to liability if he’s in care in control of the boat and assisting in navigation at the time of the crash.

On the criminal negligence charge, Howard explained there’s a route to liability based on the manner of driving and if the judge finds reasonable doubt that Grkovski was driving, there’s still an avenue towards liability regarding what Grkovski knew about Denkha at the time.

“Is it your position because of the way the case has gone, they should not be able to pursue the alternate theory?” said the judge. “Right,” Gold replied. “I was ready to make submissions about Grkovski’s driving. I can’t overstate the significance of this to the defence,” Gold added.

Sugunasiri adjourned to allow defence lawyers and crown prosecutors to prepare for arguments on the issue.

Grkovski has pleaded not guilty.

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