ONTARIO COURT OF JUSTICE
DATE: 2025 05 30
COURT FILE No.: Oshawa 21-28101370
BETWEEN:
HIS MAJESTY THE KING
— AND —
JULIAN KROLL
Before Justice Joseph Hanna
Reasons for Judgment released on May 30, 2025
C. Enright ............................................................................................... counsel for the Crown
R. Levin ............................................................................................... counsel for the defendant
Introduction
1Julian Kroll is charged with impaired operation of a conveyance contrary to s. 320.14(1)(a) of the Criminal Code and possession of a schedule I substance, namely methamphetamine, contrary to s. 4(1) of the Controlled Drugs and Substances Act. While the impaired count is not particularized, the Crown’s position is that Mr. Kroll’s ability to operate a conveyance was impaired by drug.
2Mr. Kroll began his trial self-represented. On the first day of trial two police witnesses were called. The matter was adjourned, and Mr. Kroll retained counsel. Counsel was then given the opportunity to cross-examine the witnesses who had already testified. The last witness to testify was a toxicologist.
3The Crown did not seek to introduce any statements made by Mr. Kroll to the police. These statements are therefore not admissible, and I have not relied upon them. I will only mention these statements as necessary to explain the unfolding of the events and to clarify the limitations of the drug-recognition evaluator’s opinion. Similarly, I have placed no weight on the inadmissible hearsay contained in the 911 call which triggered the investigation in this case.
4No Charter complaints were made. The issue I need to decide is whether the Crown has proven Mr. Kroll’s guilt of the offences charged beyond a reasonable doubt.
The Evidence of the Arresting Officer
5On September 23, 2021, at 8:05 a.m., Police Constable Mariah Trousdale attended the Food Basics in Whitby in response to a 911 call. She observed Mr. Kroll seated in the driver’s seat of a vehicle that was parked diagonally in a handicapped spot. He was the sole occupant of the vehicle.
6P.C. Trousdale requested that Mr. Kroll provide his driving related documents. She observed he had extremely dilated pupils. In cross-examination she stated that she was not aware what impact, if any, colored contact lenses would have on the pupils’ appearance. She also observed Mr. Kroll to be hyperactive, constantly moving around restlessly. She testified that Mr. Kroll’s speech was very quick and that his responses were very short. She asked Mr. Kroll to exit his vehicle. When he did, she noticed he was unsteady on his feet.
7P.C. Trousdale made an approved screening device demand and administered the test. Mr. Kroll passed. In response to the officer’s inquiry regarding where he was going, Mr. Kroll looked frantically for his phone, which apparently contained the address. P.C. Trousdale testified she observed Mr. Kroll rummage throughout the vehicle searching for his phone despite it being in plain view on the passenger seat. She then observed Mr. Kroll attempt several times to gain access to his phone. I emphasize here that I do not rely on Mr. Kroll’s utterances surrounding this event but only the officer’s description of what she saw. P.C. Trousdale also observed Mr. Kroll fumble his phone. He eventually gained access to his phone.
8Mr. Kroll was then arrested for impaired operation. P.C. Trousdale searched the vehicle incident to arrest. She located what she described as a “crackpipe” in the front passenger seat area, though she could not recall exactly where, and she indicated she did not believe it had been in plain view.
9P.C. Trousdale testified that while transporting Mr. Kroll to the police station she observed his feet in the air and that she constantly had to remind him to stay seated in an upright position. She elaborated that she had been driving calmly and obeying the traffic laws while this was occurring.
10While at the police division, P.C. Trousdale located a bag in Mr. Kroll’s jacket pocket which contained what appeared to her to be methamphetamine. She testified that she processed this item and sent it off for analysis, though she could not recall the specific government agency it was sent to.
11P.C. Trousdale’s badge number is 3957.
Evidence of the Drug Recognition Evaluator
12Police Constable Jonathon Stinson is a drug recognition evaluator (DRE). He conducted a 12-step evaluation of Mr. Kroll at the police division. This evaluation was recorded on the officer’s body worn camera.
13The evaluation included a horizontal gaze test, a nystagmus test, and an eye conversion test. Neither of these tests revealed anything unusual.
14During the modified Romberg test, Mr. Kroll estimated 30 seconds had passed when it had been 22 seconds. This was outside the 5 second discrepancy range for the test. During the test, P.C. Stinson observed that Mr. Kroll swayed from front to back and side to side. Furthermore, Mr. Kroll did not keep his head tilted back as instructed. Instead, his head rolled around.
15Mr. Kroll then performed the walk and turn test. P.C. Stinson observed Mr. Kroll lose his balance twice during the instructional phase. In the walking stage, Mr. Kroll missed touching his heel to toe four times during the first nine steps. He also took 13 steps rather than the nine he had been instructed to take. While turning, Mr. Kroll did not take several small steps to turn himself around as he had been instructed. Instead, he pivoted around on both feet to take the second set of nine steps back. During his second walk, he took 13 steps rather than the nine he had been directed to take. He also failed to touch his heel to toe six times and extended his arms to balance himself.
16Next, was the one leg test. While raising his right leg, Mr. Kroll swayed once for balance. He also used his arms to balance throughout and came away from his normal position of rest. When raising his left leg, he swayed once and again used his arms for balance. P.C. Stinson observed him touch his foot down four times.
17On the finger and nose test, Mr. Kroll twice touched the right side of his nose, rather than the tip of his nose.
18P.C. Stinson advised that Mr. Kroll’s body temperature was 35.9 Celsius, which was slightly below the normal range of 36.5 – 37.5 Celsius. His blood pressure and pulse were normal.
19P.C. Stinson measured Mr. Kroll’s pupil sizes in three different settings. In room light, the pupils measured in the normal range. In total darkness, his pupils measured 4 millimetres, which was below the normal range of 5 – 8.5 mm. In direct light, Mr. Kroll’s pupils were within the normal range.
20P.C. Stinson acknowledged that he could not say within what timeframe Mr. Kroll consumed drugs. He also acknowledged that results on the individual tests involved in his evaluation which fell outside of the expected ranges could possibly be caused by sources other than impairment.
21P.C. Stinson testified that Mr. Kroll’s behaviour, such as his fidgetiness and shakiness was in his opinion inconsistent with the suggestion that Mr. Kroll was tired or fatigued.
22P.C. Stinson testified that it was his opinion, based on the totality of everything he had observed during his evaluation, that Mr. Kroll’s ability to operate a conveyance was impaired by a combination of a central nervous system stimulant and a narcotic analgesic.
23He testified that in reaching his conclusion, he compared his observations to the Matrix.
24P.C. Stinson testified that Mr. Kroll had advised him that he had slept well the night before and that he had consumed crystal meth 24 hours earlier. I ruled that these statements were inadmissible to prove either count given that the Crown did not prove them voluntary. See: R. v. Vitellaro, 2025 ONCJ 200, at para. 40. The officer testified these statements were taken into consideration in forming his opinion, though he could not quantify how much weight he placed on them. He testified that if he excluded these statements from his consideration his opinion in this case would not change.
25P.C. Stinson obtained a urine sample from Mr. Kroll pursuant to a demand made under s. 320.28(4) of the Criminal Code and submitted it to the Centre of Forensic Sciences for analysis.
The Toxicology Evidence
26The Crown called Dr. Marina Chiaravalloti, a toxicologist, who works at the Centre of Forensic Sciences. Her report was also filed as an exhibit.
27Her evidence was that Mr. Kroll’s urine sample contained methamphetamine, amphetamine, and GHB. She explained that methamphetamine is a central nervous system stimulant and that GHB is a central nervous system depressant. She indicated that amphetamine could either arise as a metabolite of methamphetamine or be administered as its own drug. She was unable to tell in this case which had occurred.
28Dr. Chiaravalloti was careful to emphasize that urine results could not be used to determine dose, route of administration, when drugs were administered, or whether a person was impaired. She also emphasized that the presence of a drug metabolite in urine does not reveal whether that drug was present in the person’s blood at the time the sample was taken. Her evidence was that generally speaking methamphetamine could cause increased talkativeness, pupil dilation, increased blood pressure, and increased risk-taking behaviour. It could be followed by a crash phase of extreme fatigue. Again, generally, this drug could cause erratic driving and impair an individual’s ability to operate a motor vehicle.
29She explained after a single dose, methamphetamine can be detected in urine for 1 to 4 days. With multiple uses, and with chronic use, the period of detection could generally extend to a week but could possibly extend beyond that.
30The evidence list report included in Dr. Chiaravalloti’s report lists Durham Regional Police Service as the agency which submitted Mr. Kroll’s urine sample and indicates a case number of 2021-223835.
The Health Canada Certificate of Analyst
31The Crown tendered a Certificate of Analyst from Health Canada. It indicates that a sample was delivered from the Durham Regional Police Service on September 28, 2021. The sample was sealed within a package with identification markings including:
ON0181658
Trousdale 3957
2021-223835.
32The certificate states that the sample was analysed and found to contain methamphetamine.
The Burden of Proof
33Mr. Kroll is presumed innocent. It is the Crown’s onus to prove his guilt of the offences charged beyond a reasonable doubt.
34Where the Crown's case depends on circumstantial evidence, the question becomes whether the court can be satisfied that the accused's guilt is the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 at paragraphs 28 and 55.
Credibility and Reliability of the Witnesses
35I found each of the witnesses who testified to be credible and reliable. Each testified in a straightforward manner. Neither witness was evasive in cross-examination. I did not find either one of them to be shaken in cross-examination. Nor did I find any significant internal or external inconsistencies in either of their evidence. Furthermore, each of the three witnesses made reasonable concessions when suggestions were made to them.
36One piece of evidence I found unreliable is whether Mr. Kroll’s pupils were dilated. P.C. Trousdale testified they were dilated, however P.C. Stinson testified they were normal during two measurements and constricted during one. I have no reason to doubt P.C. Stinson’s measurements. He was conducting a test he routinely administers. I do not find that this discrepancy undermines P.C. Trousdale’s general credibility or reliability. It may be that Mr. Kroll’s eyes were initially dilated then later were not. Additionally, Mr. Kroll was wearing coloured contact lenses when P.C. Trousdale interacted with him, but he had removed them at the time P.C. Stinson measured his pupils. I do not know how those lenses could have affected the appearance of his pupils. Ultimately, I am unwilling to find that Mr. Kroll’s pupils were actually dilated when he was interacting with P.C. Trousdale. I accept, however, that the officer was being honest in her testimony about believing that they were.
Assessment of the Drug Possession Count
37Section 2(1) of the CDSA incorporates the definition of possession found in s. 4(3) of the Criminal Code: R. v. Bains, 2015 ONCA 677, at para. 154; R. v. Hudson, 2021 ONCA 772, at paras. 88–89.
38Possession under s. 4(3) of the Criminal Code includes personal possession, constructive possession and joint possession. Knowledge and control are essential elements of both personal and constructive possession: R. v. Morelli, 2010 SCC 8, at para. 15; Hudson, at para. 89.
39Knowledge may be inferred based on circumstantial evidence, “such as, for example, the finding of the drug on the accused's person”: R. v. Aiello, at para. 8; (aff'd) , [1979] 2 S.C.R. 15. While the Crown need not prove knowledge of the specific drug alleged in the information, it must prove the accused had knowledge the drug was a controlled substance: R. v. Williams, 2009 ONCA 342, at para. 19; Aiello, at para. 8.
40I am satisfied beyond a reasonable doubt that P.C. Trousdale seized a bag from Mr. Kroll’s jacket pocket and that this bag contained methamphetamine. The officer’s evidence on this point was credible and reliable. This evidence was neither undermined in cross-examination nor contradicted. P.C. Trousdale testified that she submitted a sample of the substance found in the bag for analysis. The Certificate of Analyst filed states that the sample analysed by Health Canada contained methamphetamine. Though P.C. Trousdale could not recall the specific agency where the sample was sent, I am satisfied beyond a reasonable doubt that continuity of the sample has been proven. The Certificate of Analyst filed refers to a sample delivered by Durham Regional Police Service five days after Mr. Kroll’s arrest. The certificate also indicates that the sample was in a sealed package containing markings including P.C. Trousdale’s name and badge number, as well as a number which matched the case number listed on the toxicology report associated to Mr. Kroll’s urine sample.
41I am also satisfied beyond a reasonable doubt that Mr. Kroll had both knowledge and control regarding the methamphetamine seized by police. It was found on his person and there is nothing to suggest it was placed there without his knowledge. Obviously, he had control over the item. The natural and compelling inference which I draw is that he was aware of the substance that was in his pocket and of its nature. In my view, any inference to the contrary would be speculative.
Assessment of the Impaired Operation Count
42P.C. Trousdale observed Mr. Kroll seated in the driver’s seat of a motor vehicle. I accept this unchallenged evidence. Mr. Kroll is therefore presumed to have been operating this vehicle unless he establishes on a balance of probabilities that he did not occupy the driver’s seat for the purpose of setting the vehicle in motion: Criminal Code, s. 320.35; R. v. Boudreault, 2012 SCC 56, at paras. 36-38. There was no evidence in this case capable of rebutting this presumption.
43It is the Crown’s burden to prove impairment to any degree beyond a reasonable doubt: R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), at p. 384, aff'd 1994 SCC 94; R. v. Stennett, 2021 ONCA 258, para. 111.
44The following combination of factors and circumstances lead me to conclude that the Crown has met its onus:
- Mr. Kroll was parked diagonally in a handicap spot. See similarly: R. v. Turner, 2014 ONSC 6820, at para. 23.
- Mr. Kroll was hyperactive while interacting with P.C. Trousdale.
- P.C. Trousdale observed him to be speaking quickly and with short sentences.
- Mr. Kroll was unsteady on his feet when he exited his vehicle.
- He frantically looked for his phone despite it being plainly visible on the passenger seat.
- Mr. Kroll struggled to gain access to his phone and fumbled it.
- While being transported to the police station he raised his legs in the air despite the officer driving normally.
- During the drug recognition evaluation, Mr. Kroll had difficulties with the Romberg test, the walk and turn test, and the finger and nose test. Having watched the video of his evaluation and considered P.C. Stinson’s testimony, I find that Mr. Kroll’s fine motor skills and balance appeared impaired.
- Mr. Kroll displayed fidgetiness and shakiness while with P.C. Stinson.
- Mr. Kroll’s overall behaviour while interacting with the police was inconsistent with the suggestion that he was fatigued.
- There was no evidence that Mr. Kroll was suffering from any mental or physical illness or disability which might explain his behaviour.
- There is no evidence that Mr. Kroll smelled of alcohol.
- I am mindful that P.C. Stinson considered Mr. Kroll’s inadmissible statements while forming his opinion. Having said that, I still find that his opinion that Mr. Kroll’s ability to operate a conveyance was impaired due to a combination of drugs to have significant weight. I have considered this opinion with its noted limitations in the context of all the evidence.
- Mr. Kroll was in possession of methamphetamine, which is a central nervous stimulant. This is one of the types of drug P.C. Stinson opined contributed to his impairment.
- The toxicology evidence, despite its above-mentioned limitations, supports that Mr. Kroll had methamphetamine in his urine. The absence of a test result identifying drugs in Mr. Kroll’s blood does not preclude a conviction. Test results are just one piece of evidence for the trial judge to consider: R. v. Henry, 2014 O.J. No. 3989 (C.A., in Chambers); R. v. Jackson, 2018 ONCA 460, at para. 25.
- The expert evidence was that methamphetamine can impair a person’s ability to operate a motor vehicle.
45Having reviewed the evidence in its entirety, including the gaps in the evidence, I conclude that the only reasonable inference is that Mr. Kroll’s ability to operate a conveyance was impaired by drug to at least a slight degree.
The Presumption in 320.31(6) of the Criminal Code
46For the reasons stated, I have concluded that the Crown has proven the impaired operation count independent of the presumption found in s. 320.31(6) of the Criminal Code.
47That provision states:
(6) If the analysis of a sample provided under subsection 320.28(4) demonstrates that the person has a drug in their body that is of a type that the evaluating officer has identified as impairing the person’s ability to operate a conveyance, that drug — or, if the person has also consumed alcohol, the combination of alcohol and that drug — is presumed, in the absence of evidence to the contrary, to be the drug, or the combination of alcohol and that drug, that was present in the person’s body at the time when the person operated the conveyance and, on proof of the person’s impairment, to have been the cause of that impairment.
48This is not a presumption of guilt. It is a “presumption of accuracy of the DRE's call when it is corroborated by a toxicological analysis”: R. v. Amarelo-Gemus, 2019 ONSC 2675, at para. 58.
49The fact that there was also GHB in Mr. Kroll’s urine does not undermine the conclusion that the DRE's opinion was corroborated by the toxicological analysis which found a central nervous system stimulant in his system: R. v. Lee, 2020 ONCJ 342, at paras. 79–82.
50Similarly, I do not find that the presumption is inapplicable because only one of the types of drugs included in the DRE’s opinion was found in Mr. Kroll’s urine. The provision uses the indefinite article, stating that the presumption applies when the sample reveals the presence of “a drug in their body that is of a type that the evaluating officer has identified as impairing the person’s ability to operate a conveyance”. The French version of the provision similarly uses the indefinite article.[1] The plain meaning of the provision in both official languages is that the presumption applies, subject to other requirements being met, when the sample seized demonstrates the presence of one of the types of drugs included in the DRE’s opinion: R. v. Downes, 2023 SCC 6, at para. 41; Oliveira v. Ontario (Director, Disability Support Program), 2008 ONCA 123, at para. 19; R. v. Stipo, 2019 ONCA 3, at para. 180.
51There are other prerequisites that must be met before the presumption can be relied upon by the Crown. The presumption only applies when there is an absence of evidence to the contrary and the Crown has proven the accused’s impairment beyond a reasonable doubt: R. v. Muliuolis, 2022 ONCJ 563, at para. 74; R. v. Danyliuk, [2024] O.J. No. 844, at para. 162.
52For the reasons already given, I have found proof of impairment. I do not find that there is any evidence to the contrary which would make the presumption inapplicable. Accordingly, I also find that the Crown has proven Mr. Kroll’s guilt on the impaired operation count by means of the presumption found in s. 320.31(6) of the Criminal Code.
Conclusion
53The Crown has proved both charges beyond a reasonable doubt. Mr. Kroll is found guilty of impaired operation of a conveyance, and possession of a scheduled I controlled substance.
Released: May 30, 2025
Signed: Justice Joseph Hanna
1(6) Si l’analyse d’un échantillon fourni au titre du paragraphe 320.28(4) révèle la présence dans l’organisme de la personne d’une drogue d’un type dont l’agent évaluateur a conclu qu’il avait affaibli la capacité de conduire de cette personne, cette drogue — ou, si la personne a aussi consommé de l’alcool, la combinaison de l’alcool et de cette drogue — est présumée, sauf preuve contraire, être celle qui était présente dans l’organisme de la personne au moment où elle a conduit le moyen de transport et, sur preuve de l’affaiblissement de sa capacité de conduire, être la cause de cet affaiblissement.