JCT: Here is Pierre's Memorandum for his application for
leave to appeal to the Supreme Court.

File Number:
Appeal Court No: C44683
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)
BETWEEN:
Pierre Drouin
Applicant for leave
Appellant in appeal
and
Her Majesty The Queen
Respondent for leave
Respondent in appeal

NOTICE OF APPLICATION FOR LEAVE TO APPEAL
PIERRE DROUIN, APPLICANT
(Pursuant to Section 59(4) of the Supreme Court Act)

TAKE NOTICE that Applicant Pierre Drouin hereby applies for
leave to appeal to the Court in forma pauperis pursuant to
Section 59(4) of the Supreme Court Act from the judgment of
Justices Labrosse, Sharpe and Blair of the Court of Appeal
for Ontario C44683 made Feb 23 2007 and for an Order
prohibiting prosecution under CDSA Sections 7(1) and 4(1)
that have been repealed.

AND FURTHER TAKE NOTICE that this application for leave is
made on the grounds that the R. v. Krieger decision
invalidated the CDSA Section 7(1) and section 4(1)
prohibitions against cultivation and possession of marijuana
and were never re-enacted by Parliament since Feb 2 2003.
Dated at Jogues Ontario on Apr 17 2007
Applicant: Pierre Drouin

APPLICANT'S MEMORANDUM
PIERRE DROUIN, APPLICANT
(Pursuant to Section 59(4) of the Supreme Court Act)

PART I - STATEMENT OF FACTS:
----------------------------

1. On July 31 2000 in R. v. Parker, on a Crown appeal from
the Dec 10 1997 decision of Ontario Provincial Judge
Sheppard staying cultivation and possession of marijuana
charges against Terrance Parker and reading in exemptions
for people with medical need, Ontario Court of Appeal
Justices Rosenberg, Catzman and Charron instead Ordered "the
marijuana prohibition in s.4 of the CDSA to be invalid" but
suspended its ruling while granting Parker a constitutional
exemption for 1 year. The court further wrote they would
have invalidated the cultivation prohibition had the Crown
also appealed Parker's cultivation exemption. Though Parker
was not deprived of his rights, 2400 to 4600 Canadian
epileptics who were not exempted with him suffered needless
deprivation of life in that year and every year since then.
App.1: 2000 Jul 31 Parker Ont.C.A. Order

2. On Dec. 11 2000 in R. v. Krieger, Alberta Justice Acton
took care of that omission by following the Parker ruling
and declaring the prohibition on cultivation of marijuana in
s.7(1) of the CDSA, and by implication possession in s.4(1),
to be invalid. She suspended her ruling for 1 year.

3. On Jul 30 2001, one day before the expiry of the
suspension of the Parker declaration of invalidity, Health
Canada issued the Marihuana Medical Access Regulations
(MMAR) which the Court of Appeal ruled in 2003 had failed to
comply with the Parker Court's Order.

4. On Aug 1 2001, Parker's exemption expired without the
MMAR having provided the necessary medical access to comply
with the Parker court's ruling thus causing the invalidation
of the s.4(1) prohibition after 1 year on Terry Parker Day
Aug. 1 2001.

5. On Nov 28 2003, upon a motion by the Appellant Crown
Attorney Scott Couper for an Order staying Acton's order in
Krieger "until the appeal or until further order of the
Alberta Court of Appeal," Justice O'Leary stayed the
invalidation of S.7(1) prohibition "until further order of
the court."

6. On Dec 4 2002, Alberta Court of Appeal Justices Wittman,
Costigan, and LoVecchio Order dismissed the Crown's appeal:
"[1] The Respondent was charged with possession of marihuana
for the purpose of trafficking contrary to s. 5(2) of the
CDSA and unlawful production of marihuana contrary to s.
7(1) of the Act.
[2] The Crown appeals a voir dire ruling which struck down
s. 7(1) and also appeals the Respondent's acquittal by a
jury of the s. 5(2) charge.
[..6] Nor are we satisfied that the trial judge imposed a
positive obligation on the Crown to ensure a supply. The
trial judge struck s. 7(1). Her order imposed no obligation.
[7] Therefore, we dismiss the appeal as it relates to the
voir dire ruling.
App.2 Krieger Court of Appeal of Alberta Judgment

7. The Calgary Herald and Sun reports misrepresented the
striking down of the S.7 and S.4 prohibitions for all
Canadians as a personal exemption victory for Krieger, a
total inversion of the truth. Calgary Herald reporter Daryl
Slade wrote:
"Krieger's lawyer, Adriano Iovinelli, said outside court it
was an important decision that permits his client to
continue to cultivate and use marijuana for his own use to
alleviate chronic pain caused by multiple sclerosis.
Iovinelli said, as it stands, it is status quo on Krieger's
charter exemption. But he suggested that would not apply to
the general public... Alberta Court of Appeal Justice Willis
O'Leary last year extended that stay indefinitely, until
there is an application to the courts to remove it."
App.3: 2002 Dec 05 Calgary Herald Krieger article
App.4: 2002 Dec 05 Calgary Sun Krieger article

8. Once the Court of Appeal for Alberta dismissed the
Crown's appeal and became functus officio, its Final Order
became the "further Order" disposing of the Appellant's stay
granted by O'Leary J.A. The only way to stay the Acton
invalidation pending leave to appeal to the Supreme Court of
Canada was pursuant to Section 65.1(1) of the Supreme Court
of Canada Act which reads:
"Stay of execution -- application for leave to appeal
65.1 (1) The Court, the court appealed from or a judge of
either of those courts may, on the request of the party who
has served and filed a notice of application for leave to
appeal, order that proceedings be stayed with respect to the
judgment from which leave to appeal is being sought, on the
terms deemed appropriate."

9. By Feb 2 2003, the 60th day after the Crown's appeal had
been dismissed by the Alberta Court of Appeal, no
application for leave to appeal was filed in the Supreme
Court by the Crown and no stay had been obtained pursuant to
S.65 of the Supreme Court Act to further stay Acton's
invalidation of the S.7 cultivation prohibition. So just as
the S.4(1) possession prohibition had become invalid on Aug.
1 2001, so too, with no S.65 stay on Acton J.'s decision,
the S.7(1) cultivation prohibition in the CDSA became
invalid on Feb 3 2003.

10. On March 25 2003, the Supreme Court granted an extension
of time for the Crown to file an application for leave to
appeal the Krieger invalidation that took place on Feb 2.

11. On May 14 2003, the day before the Minister of Justice
was to introduce new legislation on re-criminalizing the
possession and cultivation of marijuana, John Turmel was
charged at the doors of the House of Commons with possession
of 3.3Kg of marijuana for the purpose of trafficking to the
Prime Minister, Justice Minister, Supreme Court and others
to demonstrate that the prohibitions were no longer valid in
Canada.

12. On May 15 2003, the Chretien Government held back the
marijuana bill so the S.4 and S.7 prohibitions were never
re-enacted after being repealed by the Ontario Court of
Appeal in Parker on Aug 1 2001 and the Alberta Court of
Appeal in Krieger on Feb 3 2003.
App.5: 2003 May 14 Ottawa holds back marijuana bill

13. In the May 16 2003 Crown Memorandum to the Supreme Court
of Canada, S. David Frankel pleaded for leave to appeal
because:
"[11] The Court of Appeal did not deal with O'Leary's order.
Accordingly, it remains an offence to grow marihuana in
Alberta, unless a person has obtained a ministerial or
judicial exemption. If the suspension order were to be
vacated, then there would be no prohibition whatsoever on
the cultivation of marihuana in the province."
[57] As matters now stand S.7(1) has been declared of no
force and effect by the highest court in Alberta. An
application to vacate O'Leary's Order could be brought at
any time. If the suspension order were vacated, then the
cultivation of marijuana would not be an offence in
Alberta."
App.6: 2003 May 16 Krieger Crown Frankel Memorandum

14. On Jun 11 2003, Applicant Pierre Drouin was charged
under S.7(1) with production of marihuana and S.5(2) with
possession of marihuana for the purpose of trafficking.

15. On Oct 06 2003, in another application to quash
marijuana charges as unknown to law in R. v. Kurtiss Lee
Masse, Judge Chen reasoned that:
"S.52(1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions
of the constitution is, to the extent of the inconsistency,
of no force and effect."

16. He pointed out S.2(2) of the Interpretation Act reads:
"For the purposes of this Act, an enactment that has
expired, lapsed, or otherwise ceased to have effect is
deemed to have been repealed."

17. Judge Chen finally concluded:
"[66].. If I am wrong in this, and it is possible for
regulations addressing the concerns raised in Parker to halt
the operation of the declaration of s.4's invalidity, then I
agree with the decision in Hitzig that the MMAR were
inadequate for this purpose because, as long as there is no
legal supply of marihuana for persons requiring it for
medical use, the infringement on s. 7 Charter rights
identified in Parker has not been cured. The enactment of
the Marijuana Exemption (Food and Drugs Act) Regulations on
July 8, 2003 may or may not address the concerns raised in
Hitzig but came too late to have any effect on the
declaration of invalidity in Parker. July 31, 2001 had, by
that time, already come and gone, and the legislation had
already been rendered invalid. Once invalid, it became a
nullity and could not be resuscitated; it could only be re-
enacted.
[67] It follows therefore, that there is no offence known to
law at this time for simple possession of marihuana. The
application is allowed.
App.7 2003 Oct 6 Masse B.C. Prov. Crt (Chen J.)

18. If the S.4(1) possession prohibition, once invalidated
on Aug. 1 2001 by the Parker Court could only be re-enacted,
not resuscitated, so too, the S.7(1) cultivation
prohibition, once invalidated on Feb 2 2003 by the Krieger
Court, could only be re-enacted, not resuscitated. And
neither S.4(1) nor S.7(1) prohibitions on possession and
cultivation have ever been re-enacted since their repeal.

19. On Oct 7 2003, the Ontario Court of Appeal in R. v. J.P.
ruled "the MMAR did not create a constitutionally acceptable
medical exemption... as of that date, the offence of
possession of marijuana in s.4 of the CDSA was of no force
and effect. The respondent could not be prosecuted."

20. On Dec 8 2003, the Crown stayed 4000 S.4(1) possession
charges to reflect the Parker invalidation since Aug 1 2001
but did nothing about my Jun 11 2003 S.7(1) cultivation
charge to reflect the Krieger invalidation since Feb 3 2003.
App.8: 2003 Dec 08 Ottawa stays 4000 charges

21. On December 23 2003, the Supreme Court of Canada
Bulletin of Proceedings of the Krieger decision states:
"29569 HER MAJESTY THE QUEEN v. GRANT WAYNE KRIEGER
(Crim) (Alta.)
Coram: McLachlin C.J. and Major and Fish JJ.
The application for leave to appeal from the judgment of the
Court of Appeal of Alberta (Calgary), Numbers 01-00011-A and
01-00288-0A, dated March 18 2003, is dismissed."
App.9: Supreme Court of Canada Bulletin Dec 23 2003


23. The Supreme Court does not note any Appellant's stay of
Judge Acton's repeal of marihuana prohibition in CDSA S.7(1)
still extant after the Alberta Court of Appeal closed the
file and became functus officio. Again, did nothing about my
Jun 11 2003 S.7(1) cultivation charges that happened after
the Feb 3 2003 Krieger invalidation.

24. On Nov 2 2005, in a similar Krieger-based application
for prohibition of prosecution for cultivation in R. v.
Cornelssen in Alberta, the Crown Memorandum stated:
"3. Proof that the suspension of the declaration of
invalidity of s.7(1) was vacated.
The Applicant bears the burden of proof that the Order of
O'Leary J.A. was vacated. He has filed no evidence
whatsoever which proves the existence of an Order that
vacates the November 26 2001 Order of O'Leary J.A.
Attached as Tabs 1 and 2 are the Affidavits of Adriano
Iovinelli, Counsel for Grant Wayne Krieger and Scott Couper,
Counsel for the Attorney General of Canada, respectively,
who were counsel appearing for the litigants at the
rendering of the March 18 2003 judgment in R. v. Krieger,
supra (above). Both depose that after the rendering of the
judgment from the bench, Mr. Iovinelli applied to vacate the
November 28 2001 Order of O'Leary J.A. which, inter alia,
stayed the Order of Acton J. striking down s.7(1) of the
Controlled Drugs and Substances Act.
Both counsel depose that the Court of Appeal dismissed Mr.
Iovinelli's application and held further that such an
application could only be brought in the context of a full
hearing with evidence being called.
No such application was ever made. Consequently, the
suspension of Acton J.'s Order is still in effect.
For the reasons indicated by the Deputy Registrar of the
Court of Appeal at Tab 3, a transcript of those proceedings
is not available....
6. Application of stare decisis re: Krieger, supra, to the
facts before this Honourable Court.
With respect to the Applicant's argument of stare decisis,
the rule applies only when the same factual conditions
apply. The MMAR and all of its amendments were not present
when Krieger, supra, was decided. Respectfully, this Court
is bound, first, by the Order of O'Leary J.A. which stayed
the declaration of invalidity of Acton J. and, second, by
the dismissal of the application to vacate O'Leary J.A.'s
Order by the Court of Appeal on March 18 2003. The Supreme
Court of Canada merely refused leave to appeal to the Crown
and did not deal with the stay on the declaration of
invalidity as evidenced in their one sentence judgment."
App.10: 2005 Nov 02 R. v. Cornelssen Crown Memo
26. It is true that Krieger counsel did swear in his Nov 1
affidavit:
"3. On March 18 2003, a three-member panel of the Alberta
Court of Appeal upheld the decision of Acton J. striking
down s.7(1) of the CDSA by delivering a Memorandum of
Judgment from the bench. A copy of that Memorandum of
Judgment is attached hereto as Exhibit B. As the Memorandum
of Judgment did not deal with the outstanding suspension of
the declaration of invalidity, I made an application at the
conclusion of judgment to have the Order of O'Leary J.
vacated. The Court of Appeal dismissed my application. In
doing so, the Court held that an application to vacate that
Order would require a full hearing with the calling of
evidence.
4. At no time did I make such an application or conduct
such a hearing on behalf of my client. Consequently, the
Order of O'Leary J. staying the declaration of invalidity
and allowing my client his personal exemption to produce
cannabis marihuana for his own medicinal purposes is still
in effect... Adriano Iovinelli"

27. Since the Court of Appeal was functus officio once it
had issued it's final Order stripping the Crown of it's
appellant's status, it seems incredible that the Court would
have suggested that a motion which cannot be made should be
made for a full hearing with the calling of evidence." It is
so incredible that Crown Attorney Scott Couper refused to go
along with the lie and told the truth. In his Oct 28 2005
affidavit, Crown Scott Couper swore:
"3. On March 18 2003, a three-member panel of the Alberta
Court of Appeal upheld the decision of Acton J. striking
down s.7(1) of the CDSA by delivering a Memorandum of
Judgment from the bench. A copy of that Memorandum of
Judgment is attached hereto as Exhibit B. At the conclusion
of the judgment, counsel for Krieger applied to have the
Order of O'Leary J. vacated. The Court of Appeal declined to
entertain the application."

28. On Nov 16 2005, Scott Couper testified in R. v.
Cornelssen that on December 4 2002, upon having the Crown's
appeal against the decision of Acton J. to invalidate the
s.7(1) prohibition dismissed, he was going to ask for a
S.65.1(1) Supreme Court stay of Acton's invalidation pending
their application for leave to appeal to the Supreme Court
of Canada but then deterred by Defence counsel Adriano
Iovinelli asking the Court of Appeal to have the O'Leary
stay lifted. Even though the court declined to entertain the
request to lift a stay which had just lapsed, the Crown then
did not ask for its own legitimate stay pursuant to
S.65.1(1) of the Supreme Court of Canada Act.

29. Mr. Couper would not swear that the Court of appeal had
entertained and dismissed the application to lift a stay
that had just lapsed with the Final Order. He testified the
Court had actually properly refused to entertain the
illegitimate motion once the file had been closed. So the
Crown's argument the Court of Appeal's dismissal of the
application to vacate O'Leary J.A.'s Order is somehow
binding cannot be so because no such application was nor
could ever be entertained by a functus officio court.

30. On Nov 14 2005, Pierre Drouin proved medical need
sufficiently to receive a Health Canada exemption to use 5
grams of marijuana per day and, pursuant to the Court of
Appeal's ruling, has established medical need and must
simply be exempted.

34. On Dec 5 2005, Superior Court Justice Nadeau in Cochrane
Ontario dismissed Pierre Drouin's application for
prohibition of prosecution.

35. On Feb 23 2007, Pierre Drouin's appeal was dismissed by
the Ontario Court of Appeal on the grounds that the
Appellant's O'Leary stay of Acton's invalidation of the S.7
cultivation prohibition continued after the Appellant was
longer the appellant until remedied by the MMAR.


PART II - QUESTIONS IN ISSUE

36. Did the invalidation by Acton J. in R. v. Krieger of the
Section 7(1) cultivation prohibition and by implication, the
Section 4(1) possession prohibition, take effect 60 days
after the Alberta Court of Appeal issued its Final Order
dismissing the Crown's appeal or does the Appellant's stay
still need to be vacated;

37. Did the MMAR comply with the Court's Order to remedy
Krieger's situation.



PART III - ARGUMENT

39. The proof Krieger counsel Iovinelli perjured himself
while Crown counsel Scott Couper told the truth is best
demonstrated by the very fabrication that the Court of
Appeal said an application to vacate O'Leary's Order would
require a full hearing with the calling of evidence to show
how the Government had complied with Acton's Order. That is
impossible because the Court of Appeal itself noted:
"Nor are we satisfied that the trial judge imposed a
positive obligation on the Crown."

39. Considering the court specifically pointed out no
obligations had been imposed by Acton, the Court could not
have said a full hearing with evidence was needed to deal
with the government's compliance with the Acton order which
demanded no compliance.

40. So, the Acton invalidations had to have taken effect on
Feb 3 2003 when the Court of Appeal when a Supreme Court
stay was not obtained. Of course, once the Court of Appeal
of Alberta became functus officio, O'Leary's stay lapsed
and, as Frankel warned, there was "no prohibition whatsoever
on the cultivation of marihuana in the province." And the
country.
PART IV -- ORDER SOUGHT:

16. Appellant seeks leave to appeal for an Order prohibiting
any prosecution of S.7(1) cultivation charge and declaring
that the Krieger invalidation of the prohibition in Section
7(1), and by implication in Section 4(1), of the CDSA took
effect on Feb 3 2003.

PART V - SUBMISSIONS ON COSTS

17. Applicant had no submissions on costs.

PART VI - TABLE OF AUTHORITIES

Cornelssen Alta.Q.B. Crown Memo...App.10: Nov 02 2005 Par.24

Krieger Ab.C.A. Memorandum on S.7 App.2: 2002 Dec 04 Par.6
Krieger Calgary Herald article....App.3: 2002 Dec 05 Par.7
Krieger Calgary Sun article.......App.4: 2002 Dec 05 Par.7
Krieger S.C.C. Crown Memorandum...App.6: 2003 May 16 Par.13
Krieger S.C.C. Bulletin...........App.9: 2003 Dec 23 Par.21

Masse B.C.P.C. Chen J.............App.7 2003 Oct 6 Par.17

Parker Ont.C.A. Order on CDSA S.4.App.1: 2000 Jul 31 Par.1
Parker Ottawa stays 4000..........App.8: 2003 Dec 08 Par.20

Turmel holds back marijuana bill..App.5: 2003 May 14 Par.12


PART VII - DOCUMENTS TO BE USED

Parker Ont.C.A. Order on CDSA S.4.App.1: 2000 Jul 31 Par.1
Krieger Ab.C.A. Memorandum on S.7 App.2: 2002 Dec 04 Par.6
Krieger Calgary Herald article....App.3: 2002 Dec 05 Par.7
Krieger Calgary Sun article.......App.4: 2002 Dec 05 Par.7
Turmel holds back marijuana bill..App.5: 2003 May 14 Par.12
Krieger S.C.C. Crown Memorandum...App.6: 2003 May 16 Par.13
Masse B.C.P.C. Chen J.............App.7 2003 Oct 6 Par.17
Parker Ottawa stays 4000..........App.8: 2003 Dec 08 Par.20
Krieger S.C.C. Bulletin...........App.9: 2003 Dec 23 Par.21
Cornelssen Alta.Q.B. Crown Memo...App.10: Nov 02 2005 Par.24

Dated at Jogues Ontario on Apr 17 2006.
Appicant
Pierre Drouin

JCT: His friend Real Martin filed his application too:

APPLICANT'S MEMORANDUM
REAL MARTIN, APPLICANT
(Pursuant to Section 59(4) of the Supreme Court Act)

STATEMENT OF FACTS:

1. On Jun 18 2003, Applicant Real Martin was charged with
possession of marihuana under S.4(1) of the CDSA and
production under S.7(1) of the CDSA. This was after the
Ontario Court of Appeal had ruled the prohibition on
possession in S.4(1) of the CDSA to be invalid on after July
31 2001 and after the Alberta Court of Appeal had ruled the
prohibition on cultivation in S.7(1) of the CDSA to be
invalid after Feb 2 2003.

2. On December 5, 2005, Justice Nadeau dismissed the
Applicant's application for prohibition of prosecution under
S.7(1) of the CDSA. The charge under section 4(1) of the
Controlled Drugs and Substances Act was withdrawn.

3. On Feb 23 2007, Real Martin's appeal was dismissed by the
Ontario Court of Appeal on the grounds that the Appellant's
stay of Acton's invalidation in R. v. Krieger of the S.7
cultivation prohibition by O'Leary continued after the
Appellant was longer the appellant until remedied by the
MMAR.

4. Appellant raised the same appeal issues as Pierre Drouin.

PART II - QUESTIONS IN ISSUE

5. Applicant Real Martin raises the same issues as those
raised in the application for leave to appeal the denial of
prohibition of prosecution under Section 7(1) of the CDSA by
fellow applicant Pierre Drouin.

PART III - ARGUMENTS

6. Applicant seeks leave to appeal to the Supreme Court upon
the same grounds as those used by Applicant Pierre Drouin in
seeking leave to appeal to the Supreme Court.

PART IV -- ORDER SOUGHT:

7. Appellant seeks leave to appeal for an Order prohibiting
any prosecution of S.7(1) cultivation charge and declaring
that the Krieger invalidation of the prohibition in Section
7(1), and by implication in Section 4(1), of the CDSA took
effect on Feb 3 2003.
Dated at Coppell Ontario on Apr 17 2007

Applicant:
Real Martin


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