Reasons for Decision

Court File No.: CR-24-50000053
Date: 2025-06-02
Superior Court of Justice (Toronto Region)

Between:
His Majesty the King – and – Filip Grkovski

Applicant Counsel: Foreman, Howard
Respondent Counsel: Alan D. Gold, Ellen C. Williams

Heard: March 17-26 and April 9, 2025

Judge: P.T. Sugunasiri

Overview

[1] On May 31, 2022, Julio Abrantes and Megan Wu met up with boat owner Filip Grkovski and other guests to go out to a tie-up on his 30-foot motorized boat. Filip headed to the Cove near Toronto’s Centre Island for an afternoon in the sun of socializing and drinking. At about 11:30 p.m., Filip started to drive his boat back to the Outer Harbour Marina with nine of his guests. The trip back ended in a tragic crash drowning both 24-year-old Megan, and 34-year-old Julio. The Crown alleges that Filip was negligent in navigating his boat back to the marina, was impaired, and caused the accident that took Megan and Julio’s life. Two of the passengers also claim injuries from the accident.

[2] Filip is charged with two counts of criminal negligence causing death, two counts of criminal negligence causing bodily harm, two counts of impaired operation of a conveyance causing death, and two counts of impaired operation of a conveyance causing bodily harm. He re-elected to a judge alone trial and pled not guilty on all counts.

The Legal Tests

Criminal Negligence Causing Death/Bodily Harm

[3] To prove criminal negligence causing death, the Crown must prove beyond a reasonable doubt that Filip did something that caused Megan and Julio’s death, or that he failed to do something that he had a legal duty to do and that failure caused Megan’s and Julio’s death. [R. v. Javanmardi, 2019 SCC 54, para 19] The Crown must also prove beyond a reasonable doubt that the act created a risk to others that a reasonable person would have foreseen and taken steps to avoid, if possible; and that the failure to foresee the risk and take steps to avoid it was a marked and substantial departure from the standard of care expected of a reasonable person in the same circumstances. [R. v. Javanmardi, 2019 SCC 54, paras 21-23]

Impaired Operation of a Conveyance Causing Death/Bodily Harm

[4] To prove impaired operation of a conveyance causing death, the Crown must prove beyond a reasonable doubt that Filip drove, assisted in navigating or had care or control of the boat at a time when he was impaired, causing Megan and Julio’s death. Similar tests apply for criminal negligence causing bodily harm and impaired operation of a conveyance causing bodily harm.

[5] Andrea Miguel, Kristina Vasilyeva, Zaynab Altakawee, Edward Dhenka (“Eddie”), Amy Dong and Kelly Zeng are the surviving passengers from the crash who testified at trial. No one saw who was driving the boat at the exact time of the accident. Eddie testified that Filip was driving and Filip testified that Eddie was driving.

[6] At the end of the Crown’s cross-examination of Filip, it became clear that the Crown wanted to argue that even if I had reasonable doubt that Filip was driving at the time of the accident, I could still find him guilty of the offences. For criminal negligence causing death, I could find that his negligent act was handing the wheel to Eddie who on one occasion had sped up the boat to a speed that required Filip’s intervention. For impaired operation of a conveyance causing death, the Crown intended to argue that Filip was either assisting Eddie in navigating the boat at the time of the accident or still had care or control of it at the time.

[7] Despite these multiple routes to guilt, I ruled that the only viable route to Filip’s guilt is to find that he was driving the boat at the time of the crash. Let me explain why.

The Crown’s Only Available Theory of Liability is That Filip Was Driving

[8] The Crown’s theory of why Filip should be found guilty evolved over the course of the trial, which is not an uncommon experience in trials. The Crown is allowed to rely on different theories of guilt and does not need to only rely on the one that they advised the defence of or the one that they started out with. [R. v. Kelly, 2017 ONCA 920, paras 30-31] Recently the Court of Appeal for Ontario reiterated that the Crown can advance any theory that is supported by the evidence. [R. v. Johnson, 2022 ONCA 534, para 69] I consider any theory of liability upon which I, acting reasonably, could convict. In considering reasonableness, I engage in a limited weighing of the evidence. [R. v. Figliola, 2018 ONCA 578, para 28]

[9] The Crown’s right to advance any theory arising from the indictment and supported by the evidence is always subject to trial fairness and whether the defence is caught off guard. As noted by the Court of Appeal for Ontario in Stojanovski:

there can be circumstances in which the defence, based on particulars provided by the Crown, specific representations made by the Crown, or the conduct of the trial, is justifiably led to believe that the accused's potential liability is limited to a specific theory and conducts the defence accordingly. In those circumstances, the defence may be successful in arguing that any departure from the specific basis of liability advanced, especially after the evidence is complete, would unfairly prejudice the accused's ability to make full answer and defence. [R. v. Stojanovski, 2022 ONCA 172, para 66]

[10] The defence argued both that Filip was caught off guard by the Crown’s alternate theories of liability and that in any event there is insufficient evidence to support them. I agree with the defence’s second submission and rely on that to limit the Crown’s case.

[11] That said, there is reason for concern about trial fairness in this case. The focus of the case until the end of Filip’s cross-examination was clearly about who was driving the boat. Defence counsel advised that in all the steps leading up to the trial, Filip maintained his denial that he was driving and that discussions at the judicial pre-trial and elsewhere focused on that issue. At trial, there were one or two questions asked of Eddie about what Filip said when he handed over the wheel to him and how many drinks he had had. The passengers were also all asked about the level of Eddie and Filip’s drinking. This might have flagged for the defence that the Crown was asking questions that speak to the risk of Filip handing over the wheel. Apparently this did not alert the defence. The defence opening was one line: “Filip was not driving the boat.” This did not cause the Crown to take any steps to alert the defence or me that it was not a single-issue trial.

[12] The Crown’s alternate theories became clear when Crown counsel explicitly asked Filip whether his answer that he was not driving would be different if he knew that he could be criminally negligent even if not the driver. In my view, this might be an instance where the Crown’s approach, if permitted, would require further analysis about whether it deprived Filip of his right to make full answer and defence.

Insufficient Evidentiary Basis to Ground the Alternate Theory for Criminal Negligence

[13] The alternate theory of liability for criminal negligence presumes that the Crown cannot prove beyond a reasonable doubt that Filip was driving at the time of the accident and therefore entertains the possibility that Eddie was driving.

[14] To convict on the alternate theory for criminal negligence causing death, I would need sufficient evidence to find that the act of Filip giving control of the boat to Eddie moments before the accident was a cause of the accident, that handing over control to Eddie created a reasonably foreseeable risk that Filip could have prevented, and that the failure to foresee the risk was a marked and substantial departure from what a reasonable person in Filip’s shoes would have done. To prove that Filip’s conduct was a marked and substantial departure from what a reasonably prudent person would do in the same circumstances, Crown counsel must prove beyond a reasonable doubt either that:

i. Filip recognized an obvious and serious risk to the lives or safety of others, but went ahead anyway despite his knowledge of that risk; or
ii. Filip gave no thought to the risk to the lives or safety of others.

[15] The evidence does not support the findings of fact needed to come to any of these conclusions even if I accept all the evidence in the trial that supports this theory. I will review the evidence to explain my conclusion.

Evidence of the Passengers

Andrea Miguel

[16] Andrea Miguel testified that on May 31, 2022 she was at the Scarborough Bluffs with Kristina when Filip’s girlfriend, Vanessa, called and invited Kristina to go on a boat to a “tie-up”.

[17] The two women arrived at the dock and met up with Filip, Eddie, Megan, Megan’s friend, Julio and “two other girls” – ten people in total. The group boated to a tie-up with Filip at the helm, to join between 5 and 20 boats to socialize, including to drink. She observed Filip drinking throughout the day but did not know how many drinks he had. Andrea testified that around 7:00 p.m. or 8:00 p.m. she and Kristina wanted to leave because Andrea did not feel comfortable in the environment and was not feeling well from her own alcohol consumption that day. There was a lot of drinking and talk of drugs. She did not observe anyone doing drugs.

[18] Andrea testified that later that night Filip pulled the boat out of the tie-up to leave. Vanessa, Megan’s friend, and “two Asian girls” were in the deck below. Eddie was alternating between being inside the cabin below and outside on the deck. She saw Filip leaving the driving area several times and Eddie taking over. Andrea was not sure what the circumstances of the switching was, but was not looking at the driver the entire time.

[19] On the way back Andrea was sitting with Kristina at the back of the boat behind the driver. The boat accelerated when it got into open waters. During this trip back Andrea was dozing off. She had not been feeling well from the drinking. Andrea recalled that when the last acceleration of the boat took place, Filip was driving. That was when they were in open water. As her eyes opened and closed she felt three large bumps. At this time, she thought it was Filip who was driving. The boat flipped after the third bump and Andrea was in the water under the boat. On cross-examination Andrea agreed that the time of the incident is when her eyes were opening and closing, that she was not paying attention nor looking at the driver and that she does not know who was driving when the accident happened.

[20] Exhibit 7A and 7B are two videos that Andrea took on their way back to the marina from the tie-up. One video shows Filip in the driving area and the other shows Eddie driving. There is no meta data for these videos nor time stamps. Andrea was not sure which video she took first. She testified, however, that as they got closer to the marina, the CN Tower would appear smaller in the video.

[21] After the boat had flipped, Andrea found a way out from under the boat by feeling a gap under her feet. On surfacing, she saw Kristina and eventually sat on the rock island with her. Eddie then joined them. Filip was near the water trying to get the trapped passengers out. On cross-examination Andrea adopted as true her evidence at the preliminary inquiry that while on the rocks Eddie stated that he was not anywhere near the steering wheel. Andrea did not state in her testimony that she had accused him of being the driver.

[22] There is nothing in Andrea’s evidence that can support the Crown’s theory that it was a risk of any kind, let alone an obvious and serious, one, for Filip to let Eddie drive.

Kristina Vasilyeva

[23] On May 31, 2022 Kristina was at the Scarborough Bluffs with Andrea when she received an invitation from Vanessa to go on a boat. She and Andrea met Vanessa at the Outer Harbour Marina around 4:00 p.m. She understood that it was Filip’s boat.

[24] The boat left for the tie up shortly after 4:00 p.m. On the boat were Megan, Julio, Andrea, Vanessa and Filip. She did not know the names of the others, which included Filip’s male friend. Kristina did not know where they were going or who was driving. She recalls the tie up was near Centre Island and was only a few minutes ride. At the tie-up, people were going from boat to boat, drinking and socializing. She did not recall what drinks she had but remembers it being hard alcohol. Kristina does not remember if Filip and Eddie (whose name she did not know at that time) were drinking. She was not paying attention to them.

[25] Kristina testified that she and Andrea wanted to leave early but could not find a ride back. Ultimately Filip’s boat left around midnight. It was dark but normal weather. She does not remember who was driving from the tie-up to the marina. She was sitting in the back with Andrea, on the outside of the boat. Kristina marked on Exhibit 8 her recollection of the location of everyone on the outside deck. She marked Eddie and Filip as standing together in the steering area. She agreed on cross-examination with her statement to the police that she saw Filip and his friend both standing in the driver’s area, controlling the wheel together and taking turns driving.

[26] The boat was travelling at what Kristina felt was a normal speed. Less than one minute before the crash, she testified that it sped up “really really fast”. She did not see who was driving because at that point she was looking left to see where she was going to fall. The boat hit something and flipped to her left.

[27] Kristina’s evidence does not help lend an air of reality to the Crown’s alternate theory that it was a risk of any sort to let Eddie drive.

Zaynab Altakawee

[28] Zaynab was one of the passengers rescued by first responders from the cabin of the boat. She testified that she had received an invitation from Vanessa on Instagram to join them. She had been on Filip’s boat a couple of other times without incident. Zaynab and Megan were friends and they met Filip, Vanessa and some of the others at the Outer Harbour Marina. Zaynab testified that they were going to a tie-up at the Cove. At the Cove, there was drinking and socializing. Zaynab testified that drinking was not her scene and she did not have a lot to drink. On the way there Filip had opened a bottle of champagne, poured some into his mouth and served everyone.

[29] At the tie-up people were drinking and partying. She did not observe any drugs. Zaynab testified that she spent most of her time with Julio and Megan. Zaynab stated that Eddie was being clingy with Megan, and Zaynab argued about it with him until Megan said it was ok. Eddie was drinking. Filip was drinking a bit but mostly doing captain responsibilities like keeping track of the boat, the water and the wheel. She did not remember him being “so aggressive with the drinking.” Zaynab remembers him keeping a close eye on Vanessa’s whereabouts and what she was doing. She testified that Filip and Vanessa argued a lot that day.

[30] On the way home, Filip was driving at first. Zaynab was downstairs for part of the ride back, talking to Vanessa, Amy, and Kelly because Filip and Vanessa had been fighting all day. She thought the fighting became more aggressive at night. At some point on the ride back Zaynab went upstairs and sat beside Julio and Megan to the left of the driver’s area. When she was sitting on the bench beside Julio and Megan, Eddie was driving but Eddie and Filip switched back and forth with Eddie driving when Filip went to argue with Vanessa. Sometimes the wheel was unoccupied, but the boat was going slowly on those occasions. Zaynab testified that at one point when she was up on deck Filip was in a rage and was red faced, circling around and staring into space.

[31] Megan and Julio were sleeping on the ride back. She then fell asleep. Zaynab did not remember how long she was dozing before she woke up feeling nauseous. The boat was going faster at this point. According to Zaynab, Eddie was driving when she woke up feeling nauseous because she told him in Arabic that she was nauseous. In her words, Eddie was holding the wheel, staring into the water and driving really fast. Zaynab testified she went downstairs to go to the washroom but got distracted by the ongoing discussions between Vanessa, Amy and Kelly. Zaynab testified that she did not see Filip downstairs nor did she know where upstairs he was. But he was not beside the wheel when she went downstairs. Zaynab was intent to point out that she did not know who was driving in that two minutes and maintained the possibility that it could have been Filip.

[32] Between 30 seconds and 2 minutes later, which Zaynab also described as “right before the crash”, the boat started to shake and then it flipped over, trapping Zaynab, Vanessa, Amy and Kelly in the hull. She was sure that Filip was not down there with them but could not say where on the upper deck he was. Zaynab agreed that Filip was circling around the boat trying to get them out but that his focus was on Vanessa and not them. At one point he reached inside an open window and asked for Vanessa. She felt that Filip did not care about her or the other two women trapped inside.

[33] There is nothing in the evidence elicited from Zaynab to support a Crown theory that there was any risk in letting Eddie drive. She offered no evidence, for example, of his level of intoxication, erratic behaviour or erratic driving prior to the 30 seconds to 2 minutes that led up to the accident.

Kelly Zeng

[34] Vanessa invited Kelly onto Filip’s boat at the tie-up. Prior to that Kelly had been on another boat with her friend Amy. Kelly knew Zaynab and Megan as well. Both Kelly and Amy joined Filip’s boat. Kelly agreed that at the tie-up people were drinking and socializing, but did not know if Filip was drinking.

[35] Kelly testified that Filip was operating the boat on the way back to the marina from the tie-up. She spent most of the ride back in the cabin below with Amy and Vanessa. Megan, Julio, Filip, Eddie and two women she didn’t know were on deck. Kelly was giving relationship advice to Vanessa and said she was like a mediator between Vanessa and Filip.

[36] At one point in time on the trip back, Kelly went upstairs because Vanessa asked to speak to Filip. When Kelly went upstairs, Filip was driving. Kelly observed that he was upset. Kelly got Filip and they went back down together for a few minutes. Filip gave Eddie the wheel before going down. On cross-examination Kelly adopted her statement to the police that Filip went down twice both at the tie-up and on the way back to the marina from the tie-up. The second time he went downstairs on the way back from the tie up was when she went and got him. That second time Filip went downstairs, he was not mad. He said he was just done with it. Kelly also adopted her statement to the police that Filip did not want to go downstairs but Vanessa was very upset. She agreed with defence counsel that Vanessa was causing the arguments.

[37] Kelly testified that Zaynab was downstairs too when she and Filip went downstairs together. She agreed on cross-examination that when Filip went downstairs just before the accident, she stayed upstairs, standing beside Eddie. Filip had asked Eddie to drive and Eddie agreed. She was standing beside Eddie for a bit but because she did not know Eddie she felt a little uncomfortable and went downstairs.

[38] In direct examination Kelly stated that Filip returned upstairs and what felt like less than a minute later, the boat capsized. In cross-examination she agreed that as Filip was heading upstairs, she turned to talk to Vanessa and suddenly there was an accident. Kelly said she heard a huge bang and felt like they had hit something. The boat went left then right and everything became black. She did not notice a change in speed.

[39] In her interactions with Filip, Kelly did not observe any erratic or abnormal behaviour. He was not slurring nor did she see him doing any drugs. She gave no evidence on Eddie’s manner, behaviour, or conduct other than testifying that everyone was drinking at the tie-up that could inform an analysis of whether Filip took a foreseeable and preventable risk in handing over the wheel to Eddie.

Amy Dong

[40] Amy recalls that Kelly invited her to Filip’s boat at the tie up that she arrived at on a different boat. Amy knows Zaynab as well. She testified that there was drinking at the tie-up. She was not sure if Filip was drinking but thought he was. She made no other observations of Filip at the tie-up.

[41] Amy recalls that on the way home Filip was driving. She was downstairs on the way back. Filip came downstairs several times but nothing stood out to her about those times other than that Filip and Vanessa were fighting. She testified that the most memorable time was when Filip went downstairs the final time before the crash. He was downstairs for less than a minute when Zaynab also came down, complaining of nausea. The accident happened right after Zaynab went downstairs.

[42] Amy offers no evidence that could support the theory that Filip took a foreseeable and preventable risk in handing over the wheel to Eddie moments before the crash.

Angela Caravella

[43] On May 31, 2022, Angela’s friend Cassandra received an invitation to Filip’s boat from Eddie. When she met up at the boat, the only person she recognized was Julio. Filip gave them some boat instructions before heading out with the group to the tie-up at the Cove. On the ride there the group of seven to nine people were socializing but not drinking. The trip to the Cove was 10-15 minutes at the most. There were four to five boats at the tie-up and people were drinking and socializing across boats. Angela testified that she was drinking tequila, as were others, including Filip.

[44] Angela did not see anyone taking any other substances and thought that Vanessa was Eddie’s girlfriend. Around 8:30 or 9:00 p.m. she and her friend wanted to go home but Filip’s boat was not leaving anytime soon. She testified to seeing Filip go down into the cabin and thought it was implied that he and Vanessa were fighting or that Filip needed to sober up before leaving. After about 20-30 minutes she observed Filip come out of the cabin with a bottle of vodka. In cross-examination Angela agreed that she did not see Filip drinking the vodka. Ultimately, Julio helped Angela and Cassandra find another boat to take them back to Ashbridge’s’ Marina.

[45] Angela’s evidence offers no support the Crown’s alternate theory.

Edward Dhenka (“Eddie”)

[46] Eddie testified that on May 31, 2022, Filip invited him to his boat. He knew Filip from the club and party scene and had known him for about one year. On cross-examination Eddie agreed that he first met Filip in Mexico and that in March and April of 2022, he had invited Filip and Vanessa to go on vacation with him and two women. In that same text exchange at Exhibit 20, Eddie was talking to Filip about a 35-foot boat. He denied, however, that he was interested in buying that boat, but did agree that at some point Filip offered to sell him his boat but Eddie declined because it was too small. Eddie admitted to having a boating licence and ultimately admitted in cross-examination that Filip knew he owned and drove a boat himself.

[47] Eddie met Filip around 3:00 p.m. at the Outer Harbour Marina. He identified Julio, Zaynab, Megan and Kristina as also being there. Once they left the marina to go get fuel, Vanessa started pouring drinks and Filip brought out drugs. At that point everyone on board was drinking except for Eddie. Filip pulled out a key and sniffed some cocaine. At the fuel pump, Eddie testified that three other girls arrived (sometime after 4:30 p.m.) and that is when he had his first drink. Filip drove to the tie-up. During that 30–40-minute trip, everyone, including Filip, was drinking, chatting and listening to music. Eddie was still drinking his first vodka pineapple drink on the ride to the tie-up.

[48] Eddie testified that at the tie-up people were socializing and drinking. He was talking to Megan who he had just met. He was romantically interested in her. Eddie stated that he had six drinks maximum and did not do any drugs, even though Filip offered him cocaine. Eddie observed Filip doing drugs, listening to music and fighting with Vanessa, but was not able to see how many drinks Filip had. Eddie stated that at the tie-up, he himself was “100% sober” and had a maximum of six drinks.

[49] He recalls leaving the tie-up around 11:00 p.m. Filip drove away from the tie-up but Eddie said that he did “help Filip from leaving the tie-up.” He also agreed that he had driven the boat during the day before getting to the tie-up. He stated that on the way back, Andrea and Kristina were sitting in the back; Megan, Julio and Zaynab were to the left of the helm; and he was standing to the left of Filip. Vanessa and “two Asian girls” that he did not know were downstairs.

[50] Eddie said that Filip left the wheel twice on the return trip to go downstairs. There were only two steps going down and at one point, Filip was all the way into the cabin below. The first time Filip left the boat unattended on the way back from the tie up, Eddie controlled it while everyone was still awake. On this occasion, Filip and Zaynab were downstairs. At that time, he believed he could only operate the boat at ten km/hour because of ferries and other traffic.

[51] When Filip returned upstairs to take back the wheel, Eddie described Filip and everything as normal, but stated that Filip was mad and upset. At this stage Zaynab returned upstairs, sat beside Megan and fell asleep. Filip was driving the boat faster but not as fast as before the accident. At some point, maybe five or ten minutes later, Zaynab woke up and went downstairs. Eddie testified that he thought he might have touched her leg by accident and that’s what woke her up. She then went downstairs and Eddie sat in her seat beside Megan.

[52] The second time Filip went downstairs, they were out of the Toronto Harbour and in more open water. Eddie testified that Filip asked Eddie again to take the wheel but Eddie did not want the responsibility and was not familiar with the area. Eddie further stated that this was his first time on Filip’s boat. He stated that on this second occasion, Filip put the boat in idle and went downstairs for about 10 or 15 seconds, Eddie was not sure. Filip returned upstairs, with his eyes popping out of his head, said “fuck that bitch” and floored the boat while sniffing cocaine again off his key. On cross-examination when confronted with Filip’s toxicology report refuting that Filip had cocaine in his system around the time of the accident, Eddie stated that maybe he did not see Filip sniffing it but he did pull out cocaine while flooring the boat.

[53] When Filip floored the boat, Eddie testified that he was still sitting down beside Megan and not near the helm. He was adamant that anyone who might have said that he was driving was paid off by Filip or Julio’s ex-girlfriend, or was lying. Eddie told Filip to slow down and that the boat was lifting. Two minutes later he crashed. Eddie remembers pulling his phone out of his pocket when Filip was speeding and then putting it back into his pocket just before the bang. At this point everyone on deck was sleeping except for one of the women in the back who was in and out of sleep.

[54] Eddie stated that he was initially trapped under the overturned boat after it crashed into the rock ledge or island. While under the boat the only person he saw was Julio. Eddie found a spot below him to swim out. He saw Andrea, Kristina and Filip upon surfacing and called 911. Andrea and Kristina were sitting on the rocks and Filip was to their right side. He does not recall Filip swimming around and in the water, trying to help the other passengers. Eddie said to Filip “pray to God nobody dies in this…otherwise you’re going to be in - in big trouble.” Eddie testified that he saw tears in Filip’s eyes and a couple of minutes later, “they” were trying to accuse Eddie of driving the boat. He also agreed that he told Kristina and Andrea, while on the rocks, that he was nowhere near the wheel. When the police arrived on scene in the early hours of June 1, 2022, Eddie told the police that Filip was driving the boat and that he was not driving the boat at all. He also told the police that “they” were trying to pin it on him because “these girls” all knew Vanessa and were trying to go with her side.

[55] On cross-examination, Eddie was read his transcript of his conversation with the police as recorded on their body worn camera. That transcript states that he said to the police that he did not drive at all, that he stood beside Filip while Filip was driving, and that he warned Filip to not go too close to shore when Filip would drift off while drinking or on his phone. Defence counsel noted that in his direct evidence at trial, Eddie did not say anything about directing Filip to stay on course while standing beside him. Eddie stated that he did not remember what he said to the police, but remembers Filip telling him not to be paranoid. Defence also pointed out to Eddie that he told the police he did not drive at all but testified at trial that he drove both to the tie up and from the tie up. Eddie disagreed that from the beginning he was trying to distance himself from being the driver.

[56] Defence counsel also presented Eddie with other versions of his account of what happened. Defence counsel alleged that he told the police that when Filip was going fast and the boat was lifting up, Zaynab woke up and went downstairs. Eddie said that he sat down in her place and within ten seconds the crash happened. Defence counsel also read to Eddie his account to an officer where he said that Filip floored the boat to show off - not because of the rage Eddie described at trial. Eddie was not sure what he told the police but confirmed that the version of events that he testified to in court was the correct one.

[57] Finally, Eddie agreed that he had multiple speeding tickets and a criminal record. The first entry on that record is dangerous operation of a vessel – suggesting a boat. Eddie disagreed that the charge had to do with a boat, but rather said that it was a driving offence. I will discuss the impact of Eddie’s testimony on the Crown’s proposed alternate theory of liability after summarizing Filip’s evidence so that I can give the Crown the benefit of the best combination of evidence available.

Filip Grkovski

[58] On May 31, 2022, Filip had bought two extra large pizzas and chips and went to the Marina where he stored his 30-foot boat. He asked Eddie to come fix an outlet on his boat. He understood from Eddie that he knew everything about boats and had one. Filip testified that Eddie did come and replace the power outlet. On cross-examination, however, Filip stated that he had also invited Eddie to the tie-up. This was around 3:30 p.m. After that, Vanessa and Eddie invited the rest of the people. Eddie arrived with two bottles of vodka and some mixers. Julio came with a bottle of tequila and some mixers. Once the boat was ready, Filip testified that he headed to get gas while waiting for the others. From there, Filip drove to the tie-up. Filip stated that he told all his passengers to remove their shoes and store them in the compartment where the life jackets were.

[59] At the tie-up, Filip had two drinks and some baby shots. On cross-examination he indicated that he had four drinks in total at the tie-up. He stopped drinking at 8:00 p.m. and stated on cross-examination that he did not feel intoxicated at all. He did not drink while operating the boat. He had champagne, which he opened, but he did not drink any because he does not like champagne. Filip testified that he did not do drugs on this day. The last time he took cocaine was on the Sunday night – a day and a half prior to the accident.

[60] Filip denied that the delay in leaving the tie-up was his fight with Vanessa. He stated that the argument with her was over long before leaving the tie-up. The delay was to wait for three women that had disappeared. He did not know they had left on a different boat. When asked if the delay was for him to sober up, he stated that he was not sure what the reason for the delay was. Filip backed out of the tie-up and drove north and then right to get to a channel separating the harbour and outer harbour. According to Filip, Eddie started driving when they approached that channel which is around the Cabana Pool Bar.

[61] Filip testified that Eddie started driving because Kelly had come up from the lower cabin to tell him that Vanessa wanted to speak with him. On cross-examination he confirmed that he was not worried about Eddie driving because he had a boat, had fixed his outlet and was “the boat guy”. Filip stated that he spoke briefly with Vanessa and then returned outside. He denied in cross-examination that the fight with Vanessa was ongoing and intensifying. It was, on the contrary, resolving. He testified further on cross-examination that he went downstairs because he thought there might have been some problem down there. This is when he popped downstairs, not going all the way down into the cabin. On cross-examination Filip agreed that on this first occasion he was partially down the two steps and could observe Eddie. The boat was still in the harbour (before the channel) at this time.

[62] After Filip came back up fully on deck, he stood beside Eddie as he continued to drive. Filip told him about the boat, showing him the gauges and buttons for the lights because Eddie was interested in buying the boat. Filip testified that Eddie said that he was familiar because he had the same sized boat. Then Eddie increased the speed. Filip reduced it and told Eddie that he could not drive that fast at that point because they were still in the harbour and the police station was nearby. According to Filip, Eddie said “I know, I know, I know.” On cross-examination Filip stated that Eddie speeding up the boat did not concern him because he believed he was testing it but that he was concerned about Andrea and Kristina’s safety because they were sitting in the back.

[63] As Eddie approached the mouth of the channel, Filip stated that he told Eddie to go left at the big red light seen at the mouth. He then pointed out the bright white lights of the Marina. Filip testified that again Eddie said, “I know, that’s where we came from.” Once at the mouth of the channel and with the Outer Harbour Marina in sight, Filip went downstairs into the cabin. On cross-examination Filip stated that at that point the boat had not yet gone left to enter the marked channel to the marina. On re-examination Filip confirmed that the boat was where it was supposed to be in its travels when he left in in Eddie’s hands. Filip had stated earlier that this was a familiar route that he regularly took. According to him, Eddie was operating the boat, knew where he was going, and knew what he was doing because he has his own boat. On cross-examination Filip stated that he did not check with Eddie how much he had to drink because he had not seen him drinking that day, but did ask him if he was ok to drive. Filip also agreed, contrary to Eddie’s testimony and contrary to his own interest, that the first time Eddie drove his boat was on this trip back from the tie-up and not on the way to the tie-up. Filip re-stated on cross-examination that he went downstairs the second time after he confirmed with Eddie that he was ok and knew where to go. On re-examination Filip also stated that he did not foresee any difficulty in Eddie completing the trip to the marina and that it was not a difficult trip to make from that point to the marina.

[64] Filip testified that after he went downstairs, he had the remnants of a pineapple drink – about half a drink that may have had alcohol in it, confident that Eddie was fine navigating the boat into the marina. Zaynab came downstairs saying that she was feeling nauseous due to the speed and that Eddie was causing waves. Filip started to go upstairs and the accident happened as he did that. He got to the top of the stairs where he could feel the wind blowing very hard. Filip stated on cross-examination that he looked around to see where they were and then “boom”.

[65] After the crash, Filip found himself in the deeper part of the water. He got out of the water and saw Kristina, Andrea and Eddie on the nearby rock. He returned to the water, circling the boat and talking to the women inside the cabin to calm them down. There was one window open and he reached his hand in and called for Vanessa. Once the first responders arrived, they ordered him out of the water and he joined Eddie, Andrea and Kristina on the rock.

[66] On Eddie and Filip’s evidence, the accident happened after the second time that Filip left the wheel on the way back from the tie-up. Eddie denies having taken the wheel on that second occasion. Thus, most of the relevant evidence for the alternate theory comes from Filip, which I consider with some of Eddie’s evidence. The Crown’s best evidence on its alternate theory, if believed, is that Filip handed over the wheel of his boat to a friend who he knew had the same sized boat, had a boating licence, and was interested in boats even bigger than Filip’s. Filip also knew that Eddie was a boat mechanic who had helped him fix the boat at the Marina. Eddie was on Filip’s boat for the first time. The first time Eddie drove the boat was on the way back from the tie-up. [[see note 7]] Eddie was sober returning from the tie-up. It was dark, but for the lights of the city. Prior to the final time that Eddie drove, Filip had to slow down Eddie’s speed because he was going too fast and Filip was concerned about his rear passengers Andrea and Kristina. Eddie did not resist this adjustment. Filip showed Eddie the gauges and buttons on the boat. Filip did not foresee any risk in handing Eddie the boat. He asked if he was ok to drive and was repeatedly reassured by Eddie. Eddie advised that he knew where to go. No one, let alone Filip, knew about Eddie’s driving record or conviction for dangerous operation of a vessel.

[67] In my view, this evidence, if believed, could not support, beyond a reasonable doubt, the conclusion that Filip’s conduct in allowing Eddie to drive was a marked and substantial departure from what a reasonable person would do in his circumstances. Said differently, when Filip handed over the wheel to Eddie, the available evidence cannot support the conclusion beyond a reasonable doubt that it was an obvious and serious risk to let Eddie drive, or that Filip gave no thought to the risk to the lives or safety of others. The evidence suggests the opposite. There is no air of reality to this alternate path. Filip’s decision to let Eddie drive may have been a poor one in retrospect but there is not enough evidence to satisfy the high bar of criminal negligence causing death.

[68] The same analysis applies to the charges of criminal negligence causing bodily harm.

The Crown Did Not Provide a Legal nor Evidentiary Basis to Ground Their Alternate Theory for Impaired Operation of a Conveyance Causing Death/Bodily Harm

[69] A person can operate a conveyance (in this case a boat) by actually driving it, assisting with its navigation or having care or control of it even if not driving. While there is evidence that Filip assisted Eddie in navigating before the accident, there is no evidence that Filip was assisting him in navigating at the time of the accident. Eddie testified that he was sitting down beside Megan and Filip was driving when the crash happened. Filip testified that he had just come up the two stairs from below when it happened. Kelly and Zaynab testified that Eddie was the last person they saw driving before the crash. While several passengers testified that they saw the men switching throughout the journey several times, no one placed them both at the helm at the time of the accident. There is no evidence to support the Crown theory that even if Filip was not the driver, he assisted in navigating the boat at the time of the crash.

[70] The alternate theory for this charge that the Crown focused on was that even if Filip was not driving, he still retained care or control of the boat at the time of the crash. Crown counsel stated that Filip retained care or control of the boat because it was his boat and he showed Eddie how it worked and where to go. This appears to be based on an adaptation of vicarious liability principles to the criminal law. The Crown did not provide any cases to support their argument. Whatever the theory, the Crown suggested that the theory presupposes that Filip was beside Eddie when the accident happened. The Crown asserted that I could infer this from the evidence because four women were rescued from the cabin, which means that Filip was not down there.

[71] As noted above, there is no evidence that Filip was beside Eddie when the accident happened and this is not an inference I could draw from the whole of the evidence. Eddie denied that he was driving and Filip testified that the accident happened just as he climbed the two steps up. Kelly testified that the accident happened as Filip was going back up. Zaynab stated that the accident happened shortly after she went downstairs and that she did not know where Filip was. Andrea testified that when the bumps started she thought it was Filip driving but then resiled from the position in cross-examination. No one’s version of events suggests that Filip was with Eddie in the driving area when the accident happened.

Why I Have Reasonable Doubt That Filip Was Driving the Boat

[72] This takes me to the sole issue in this trial – am I sure that Filip crashed the boat on May 31, 2022 causing Megan and Julio to drown? If the Crown cannot get past this element of the offences, I must acquit Filip. In concluding that the Crown has not met its burden, let me explain some of the principles that I must apply.

[73] First, as we explain to juries in jury trials, people accused of crimes are innocent until the Crown proves their guilt beyond a reasonable doubt. “Beyond a reasonable doubt” means I must be sure. These are constitutional protections that we all have as citizens because the Crown has more resources than the average citizen and citizens have little power to combat any misuse of the state’s power. It is also because the criminal justice system, as good as ours is, is imperfect. We need to be sure that people we convict and potentially send to jail have committed the crimes they are accused of.

[74] Second, judges must decide the case without sympathy for anyone and prejudice against anyone. We never lose sight of the victims of a crime, but we also cannot decide a case solely to bring some relief to their loved ones. Every decision we make must be supported by the law and evidence that is presented to us.

[75] Third, when an accused person chooses to testify, like Filip did in this trial, I must make sure that I do not simply compare his testimony to Eddie’s and pick the one I prefer. That would mean that I am picking between the Crown’s evidence and the defence’s evidence, which is wrong in law. It removes the burden on the Crown to prove the case beyond a reasonable doubt and goes against the principle that people accused of crimes do not have to prove their innocence.

[76] Instead, I assess Filip’s evidence in light of all the evidence. If I believe him that he was not driving, I must find him not guilty. If I do not know who to believe, I must find him not guilty. If I do not believe Filip but his evidence leaves me in a state of reasonable doubt, I must find him not guilty. Finally, if I completely reject his evidence, I can only convict him if the evidence I do accept from the trial persuades me beyond a reasonable doubt that he was the driver.

[77] Finally, there is a special rule that I must apply when there is no direct evidence of who was driving at the time of the accident. In this case, I can only convict Filip if I can rule out all other reasonable possibilities which in this case, is the possibility that Eddie was driving the boat at the time of the accident.

[78] I am mindful of the unimaginable grief that Megan and Julio’s family and friends have endured, not only from the loss of their cherished family member and friend, but from having to relive the tragedy during the trial. I can imagine that holding Filip criminally responsible for their deaths might give some comfort, although nothing can compensate friends and family fully for their immeasurable loss.

[79] While there were problems with Filip’s testimony, I believe him when he said that he was not driving the boat at the time of the accident. Filip was credible and reliable in the description of events, including what was happening leading up to the accident. While Filip, Zaynab and Kelly testified to different timing, the core of their evidence on the events leading up to the crash was essentially the same. I would not expect the passengers to remember timing in what ended as a traumatic event. I accept Zaynab’s evidence that she spoke in Arabic to Eddie before going downstairs. That is something I expect would stand out in her mind. And it makes sense, as Filip, Amy and Kelly testified that Filip was downstairs when Zaynab went down and said she was nauseous from the speed, causing him to head upstairs. Zaynab was adamant that Filip was not downstairs and she did not know where he was. I prefer Filip’s version over hers, in part because it is supported by Kelly and Amy’s evidence, and in part because Zaynab, though overall credible and reliable, did seem to hold some animosity towards Filip. Ironically, Eddie testified that Zaynab, the person who contradicted Filip the most in her account of the moments before the accident, was lying when she recalled Eddie driving – possibly because she was being paid off. Amy and Kelly, on the other hand, had no indication of a motive to fabricate or to be partial to Filip other than Eddie’s theory that they were being paid off. This issue was not explored with either witness and I have no basis to doubt the honesty of their recollection.

[80] Filip minimized his arguing with Vanessa, being careful to downgrade the relationship from fighting to arguing, and stating that it was de-escalating. His version is somewhat corroborated by Kelly who said that Filip was calm when she went to get him. However, all passengers who testified recalled fighting which Zaynab described as more aggressive at night. Despite this seeming attempt to curate this part of his testimony, Filip’s core description of the events was consistent and unshaken in cross-examination. I find his description of his comings and going before the accident credible and reliable. He only started to become non-responsive at the end of his cross-examination when it became clear that the Crown was pursuing other avenues of liability and the Crown began putting its propositions to him. I do not find that those evasive answers take away from his evidence on core events.

[81] Filip’s evidence was also not shaken in other areas of testimony. His level of drinking was corroborated by the other passengers – he had a few drinks but nothing too aggressive. He agreed that it was two short steps between the deck and the cabin. He testified against his interest that the first time Eddie drove was on the ride back from the tie up when it was dark.

[82] Even if I am incorrect in believing him, Kelly and Zaynab’s evidence leaves me in a state of reasonable doubt as to who was driving. They both testified that Eddie was driving two minutes or less before the accident. I find them both credible and reliable on this evidence. Zaynab testified that she was not sure where Filip was at the time of the crash and Kelly said the crash happened as Filip went upstairs. Amy testified that Filip was downstairs when Zaynab came down and the crash happened moments after. Even if there were only two steps up from the cabin to the helm, this raises doubt that Filip was driving.

[83] Further, I do not believe the Crown’s star witness, Eddie. His unbelievable story of Filip pulling out cocaine while driving and flooring the throttle is only one example of his reckless relationship with the truth. Not one passenger stated that they saw Filip with drugs. Andrea said there was talk of drugs but did not see Filip with drugs. Eddie, on the other hand, portrayed Filip as a drug user all day long. Filip testified that he had done cocaine a day and a half before the accident and therefore could not have taken it between 3:00 p.m. and 11:58 p.m. on May 31, 2022. Filip’s evidence aligns with the toxicology report. Eddie’s evidence aligns with a motive to fabricate and lay blame on Filip.

[84] Other problematic parts of Eddie’s testimony were his changing narrative between his police statements and trial of what happened. It is also somewhat telling that while Filip was trying to rescue the women still trapped in the boat (as verified by the officers in attendance and Andrea), Eddie was denying being anywhere near the wheel to Andrea and Kristina. There was no evidence from Andrea or Kristina that they thought he was at the wheel or said anything to him about it while on the rocks. If Eddie was sitting with Megan, it would be obvious to Andrea and Kristina who were on deck with him that he would not have been at the wheel. It is interesting that he would need to declare that he was no where near the wheel.

[85] Sometimes the criminal law cannot provide a remedy to victims and their families because of the high standard of proof that we must hold the state to. This can seem like a technicality to grieving family and friends, but to be presumed innocent until the state proves that someone committed a crime beyond a reasonable doubt is a pillar of our free and democratic society that we so cherish. Beyond a reasonable doubt means that I must be sure that Filip was driving. In this case, I do not think he was driving the boat, or at the very least, I am not sure. For all the above reasons, I must acquit Filip Grkovski of all charges.

Notes

[1] R. v. Javanmardi, 2019 SCC 54, para 19
[2] R. v. Javanmardi, 2019 SCC 54, paras 21-23
[3] R. v. Kelly, 2017 ONCA 920, paras 30-31; R. v. Stojanovski, 2022 ONCA 172, para 64
[4] R. v. Johnson, 2022 ONCA 534, para 69; R. v. Largie, 2010 ONCA 548, para 141
[5] R. v. Figliola, 2018 ONCA 578, para 28
[6] R. v. Stojanovski, 2022 ONCA 172, para 66
[7] Filip and Eddie’s evidence differ on this but as noted, for argument’s sake I accept Eddie’s version because it is more favourable to the Crown’s alternate theory that it was criminally negligent for Filip to hand the wheel over to Eddie.

Released: June 2, 2025