JCT: Pierre Drouin was busted after the Alberta Court of
Appeal struck down the S.7 cultivation prohibition and
before they say Alan Young's Hitzig case resurrected it.
He's trying to prohibit cultivation charges. His beautiful
case is at http://yahoogroups.com/group/medpot/message/2246
This is the Crown response:

Court File: 32009
Appeal Court No: C44683

IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)

BETWEEN:

Pierre Drouin
Applicant
(Appellant)
and

Her Majesty The Queen
Respondent
(Respondent)

Response to Leave Application
Her Majesty the Queen, Respondent
(Rule 27)


CR: PART I - RESPONDENT'S STATEMENT OF FACTS

Overview of the Respondent's Position:

1. The Applicant claims that he is charged with an offence
unknown to law. He was charged with production of cannabis
marihuana (4 years ago) and instead of raising his concerns
with the trial judge, he has essentially paralyzed the
prosecution by advancing an application for prerogative
relief (prohibition) that is without merit.

JCT: Har har. Paralyzed by something without merit. If it
was without merit, it would have been quashed by the court,
not dismissed on the grounds the Appellant's stay pending
appeal of the Krieger invalidation of the S.7 prohibition
against cultivation remains stayed after the appeal is lost.

CR: This application for leave to appeal should be dismissed
for the following reasons:
a) Interlocutory appeals in criminal matters should not be
encouraged.

JCT: They can't stay they're not allowed because they are.
So they argue because they shouldn't be encouraged, mine
shouldn't be allowed. Why? Because they shouldn't be
encouraged in general. Har har har.

CR: b) The application has no merit.

JCT: Can't wait until they try to prove it.

CR: c) The application raises no issue of public importance.

JCT: The most important cases in Canadian medpot history,
both decisions in the Criminal Code of Canada, but it's not
of national importance....

CR: The Facts:

2. On June 11, 2003 the appellant was charged with
production of marijuana contrary to section 7(1) of the
Controlled Drugs and Substances Act (CDSA), possession for
the purpose of trafficking marijuana contrary to section
5(2) of the CDSA and five counts of possessing a prohibited
weapon contrary to the Criminal Code.

3. After being committed for trial, but before his trial in
the Ontario Superior Court of Justice, the Applicant brought
an application for an order prohibiting prosecution of the
count under section 7(1) of the CDSA as it was the
Applicant's position that it was no longer known to law
because Parliament had not re-enacted the section 7(1)
offence since one Court of Appeal judge of the Alberta Court
of Queen's Bench struck down the provision.(2)
(2) R. v. Krieger (2000), 225 D.L.R. (4th) 164 (Alta.Q.B.)

JCT: Notice how they don't mention how they lost their
appeal against her decision and then lost their application
for leave to appeal to the Supreme Court too. Saying it was
struck down by one little judge as if the Supreme Court will
forget what they know about their own case. Well, if the
Crown are going to treat the Supreme Court as stupid enough
to forget the facts of their own Krieger appeal, who am I to
doubt what they know.

CR: Nadeau J. of the Superior Court of Justice dismissed the
application, concluding that there has never been a
constitutional or legislative gap with respect to the
prohibition against production of marihuana in Ontario and
"the most that can be said about the prohibition against
production in Alberta is that there is an existing order
suspending the declaration of invalidity.(3)
(3) R. v. Pierre Drouin, (unreported decision of Nadeau J.
of the Ontario Superior Court of Justice, dated Dec 5 2005)
at page 17 (page 24 of the Applicant's Application for Leave
to appeal.)

JCT: Again, the Crown is going to argue that when a federal
statute is struck down in Ontario, it has to be struck down
in each and every other province where prosecutors may
continue busting people in provinces where the prohibition
hasn't been declared unconstitutional yet. What a donkey's
position.

CR: 4. The Applicant's appeal to the Court of Appeal for
Ontario was dismissed on February 23 2007. The Court of
Appeal agreed that in the province of Alberta, there was a
suspension of the order of declaration of invalidity, and
that declaration was eventually remedied by the enactment of
the Marihuana Medical Access Regulations (SOR/2001-227)
(MMARs). Accordingly, the Court dismissed the Applicant's
appeal.

JCT: So the Court said the Appellant's stay pending appeal
of the Order of Invalidity continues on after the appeal is
dismissed.
You have to wonder why there is even a Section 65 of the
Supreme Court of Canada Act for obtaining stays pending
appeals to the Supreme Court of Canada which is what I say
they needed to get, not rely on the stay from the now
defunct "functus officio" court whose official function is
over.
But they say the old stay was forgotten and has to be lifted
even though there is way to apply to remove a stay from a
Court that refuses to entertain any motion on a "functus
officio" file. Isn't it neat that this incredible government
crap gets down in the official record forever. I just want 3
of Canada's highest judges to sign that they agree this is
so.

CR: PART II: QUESTIONS IN ISSUE

5. The Notice of Application for Leave to Appeal filed by
the Applicant poses essentially one question:

i) Did R. v. Krieger (2000), 225 D.L.R. (4th) 164
(Alta.Q.B.) affirmed in R. v. Krieger (2003), 225 D.L.R.
(4th) 183 (Alta.C.A.) invalidate section 7(1) of the
Controlled Substances Act?

6. The Respondent submits not only that the foregoing
question ought to to be answered in the negative but that it
does not raise any issue of national importance that
deserves the attention of this Court especially since the
medical use of marijuana in Canada is at the heart of the
case law upon which the Applicant relies to make his
submission is now settled law in Canada.

JCT: When will they get the difference between saying the
law is unconstitutionally bad and the law is dead? This is
not an issue of medical use, it's an issue of whether the
law has been repealed or not, the reason it was repealed
being immaterial to our cases even if Pierre qualifies and I
do not.
As for the law being settled, with Justice Binnie throwing
out my first challenge to the first R. v. Turmel Prohibition
ruling that got into the Criminal Code without any
adjudication and with the new prohibition challenge at the
Court of Appeal being dismissed for want of jurisdiction for
insufficient judges to deal with the challenge, it's hard to
call that "settled." Har har har har. They hope.

CR: PART III - ARGUMENT

A. Interlocutory Appeals in Criminal Matters Should Not Be
Encouraged.

7. At the outset, the Respondent submits that this case is
an example of why interlocutory appeals in criminal matters
ought not to be encouraged.(6)
(6) R. v. Meltzer, [1989]1 S.C.R. 1764 at pp.1773-1774; see
also Dagenais v. Canadian Broadcasting Corp., [1994]3 S.C.R.
835, at p.857; R. v. Adams [1995]4 S.C.R. 707 at para. 17;
neither subs. 24(1) of the Charter nor subs. 52(1) of the
Constitution act, 1982, provide any right of appeal on an
interlocutory motion on a criminal matter: R. v.
Morgentaler, Smoling and Scott (1985), 16 C.C.C.(3d)1
(Ont.C.A.)

JCT: But the Criminal Code does provide for applications for
prohibition and for right of appeal. Are they going to
change it because the Crown says what is isn't so? How do
you think lawyers get rich? Extraordinary remedies are
offered because extraordinary circumstances mandate applying
to a court of proper jurisdiction for innovative but just
remedy.

CR: This is grounded on strong policy reasons explained by
L'Heureux-Dube J. in this court's decision in R. v. Laba,
where she stated that such appeals would fragment the
criminal trial process and have the potential of creating
lengthy delays.

JCT: But the trial hadn't even started since this was a pre-
plea application. Why are they complaining about a
fragmentation of a trial that hadn't even started yet? Just
lawyers saying anything in the hopes the court would be
stupid enough to buy it. All an application to prohibit does
is adjourn the trial until all legal avenues are exhausted.
Just like for rich guys.

CR: 8. It bears repeating, the Applicant's charges have been
placed on hold, while he has brought an injunction against
prosecution in Superior Court of Justice disguised in the
form of prohibition in a continuing effort to evade a trial
on the merits.

JCT: As for "disguised in the form of prohibition, I guess
it's only undisguised if the flurry of paperwork comes from
a rich guy's lawyers. And sure, if the statute is invalid,
Applicant does want to avoid the waste of time and resources
for a trial on the merits.

CR: 9. When he appealed to the Court of Appeal, the
Applicant requested the same remedy as in the Superior Court
of Justice. In reality, this application for leave to appeal
is another attempt to do an end-run around the rule against
interlocutory criminal appeals.

JCT: There is no rule against appeals of prohibition
applications if the rich guys wants to put up a fight.
Because paupers are using it, they want to deny the right is
there. So, is the Criminal Code wrong for providing recourse
to an appeal for prerogative remedy and is the Crown right
in saying that there is a rule against this appeal for
prerogative remedy?

CR: 10. At no time has the Applicant raised a jurisdictional
issue that warrants the intervention of a Superior Court.

JCT: Considering the first 100,000 bogus busts due to the
Parker Scandal were exposed by the 4000 stays to be
prosecuted under the invalid Section 4 statute, of course,
the next 150,000 busts due to the Krieger Scandal under an
invalid Section 7 statute is just as jurisdictional.

CR: His remedy (if any) lies before a trial judge and all
the issues raised by the Applicant in his claim that he is
not charged with an offence known to law can be addressed by
the court at that time.

JCT: The screw-ups giving me advice. Drouin was being tried
by a Superior Court judge and he can move for prohibition to
a Superior Court judge. And he can appeal the prohibition
before wasting his time on a new constitutional challenge
and complicated medical defence.

CR: B. The Application is Without Merit because Any
Declaration of Invalidity of Section 7(1) of the CDSA has
never taken effect.

11. Despite a lack of evidence that the Applicant has a
legitimate need for cannabis to treat a medical condition,

JCT: Drouin receiving his Health Canada exemption is
evidence that the Applicant has a legitimate need for
cannabis to treat a medical condition and the medical
arguments will be raised if he is put to trial once a ruling
has been made whether the Krieger invalidation took effect
or not.

CR: the Applicant relies on the decision of R. v. Krieger.
In Krieger, the accused was charged with possession of
marijuana for the purpose of trafficking and production of
marijuana in connection with a 29 plant grow operation.
Krieger led evidence at his trial that he suffered from a
severe medical condition and that marijuana was the only
effective means of treating his condition. Krieger argued
that the marijuana prohibitions in the CDSA infringed his
Section 7 rights under the Charter of Rights and Freedoms.

12. The Trial Judge held that the prohibition against
production of marijuana was unconstitutional to the extent
that it prevented Krieger from cultivating marihuana for his
own medical purposes. The trial judge declared section 7 of
the CDSA unconstitutional, "but suspended the declaration of
invalidity for a period of one year."

CR: 13. With respect to the offence of possession for the
purpose of trafficking, the Trial Judge rejected Krieger's
argument that he should be permitted to distribute marijuana
to others for therapeutic purposes. The Trial Judge was not
prepared to grant Krieger "an unfettered discretion to
distribute cannabis marijuana to whomever he and his
compassion club members decide might benefit from the
product.(9)
(9) R. v. Krieger (2000) 225 D.L.R. (4th) 164 (Alta.Q.B.)
paragraphs 50-53

JCT: Pierre and Real did not raise the distribution issue
which irrelevant to the cultivation issue herein. But the
Crown does like introducing non-relevant stuff, don't they?

CR: 14. The Crown appealed the Trial Judge's order declaring
the offence of production or marijuana (section 7 of the
CDSA) unconstitutional. Before the hearing, an Order was
made by the Court of Appeal for Alberta staying the effect
of the trial judge's declaration of invalidity and the order
granting Krieger a constitutional exemption.

JCT: An order staying the invalidation was granted by one
judge pending appeal. The Crown is trying to fool the
Supreme Court into forgetting the facts of the Krieger case
they had before them. I can't get over how the Crown can say
such distortion to the Supreme Court. Seems to show quite
the disrespect to warp facts in a case they already dealt
with.
It is quite relevant to point out that the Order was granted
to the Appellant on the grounds they had an appeal coming up
and it's pretty obvious that an Appellant's stay can't last
past when the Appellant is no longer the Appellant. So they
hide the fact it's an Appellant stay to just make it sound
like 3 judges of the Court of Appeal just stayed it forever.

CR: This Order was to remain in effect until further Order
of the Court of Appeal for Alberta.

JCT: The question is whether the Final Order dismissing the
appeal is a "further order" terminating the "stay pending
appeal."

CR: 15. Ultimately, the Court of Appeal dismissed the
Crown's appeal from the trial judge's declaration of
invalidity which entailed that the stay of proceedings
against Krieger on the production charge was confirmed once
leave to appeal was dismissed by this Court.

JCT: No, the stay of proceedings wasn't confirmed "once
leave to appeal to the Supreme Court was dismissed." It was
confirmed by the Alberta Court of Appeal once a stay
pursuant to S.65 of the Supreme Court Act was not obtained
without 60 days of the dismissal of the Crown's Alberta
appeal. But I wonder if the Supreme Court judges will be
fooled into thinking the Krieger decision only took effect
when the Supreme Court threw out their final move a year
later despite the Crown not getting a stay pending that
application for leave to appeal. And notice that the Crown
remembers the part about Krieger's charge being stayed in
their loss to the Supreme Court but conveniently forget to
mention the order striking down of section 7 which this
court itself cite in its note on the case!

CR: Nonetheless, the order suspending the declaration of
invalidity remains in force, as it was suspended
indefinitely by Order of the Court.

JCT: It's as if repeating it over and over again will
hypnotize the court. Why? It's in the why. Why did the Crown
get the stay? Did the Crown argue that Krieger's judge
wrong? No, that was done and rejected in the appeal. No, the
Crown only argued they were Appellant and deserved a stay
pending appeal. That was the reason for the stay, because
there was an appeal.
Now that the appeal has been dismissed, it seems
presumptuous to argue that the Crown loss doesn't take
effect because the Crown was appealing and lost. But it
still doesn't take effect because the court forgot to remove
it. What an asinine limb for the Crown to out on.
So, by omitting to mention that it was an order granted on
grounds there as an appeal going on gives the impression
that it's an indefinite order issued by a panel of three
judges when it was issued by only one judge pending appeal.
Aren't government lawyers sleazy?
I guess they'll make them judges like they fast-tracked the
shyster, David Frankel, who dreamed up this trash
interpretation of an Appellant's stay lasting forever from
BC Superior Court last March to the BC Court of Appeal two
months later. Talk about a reward for 150,000 bogus busts. I
wonder if he can be impeached?

CR: The judicial stay of the order declaring the production
offence of no force and effect has never been vacated.

JCT: And there's no procedure to file a motion to a closed
file, either. So it can never be vacated. Neat, eh? But
constant repetition does not a case make and repetition
doesn't make an Appellant's stay pending appeal continue on
after the appeal. Imagine, 150,000 bogus busts based on such
a lame excuse.

CR: This entails that the declaration of invalidity has
never, in fact, taken effect.(11)
See. R. v. Krieger [2003] S.C.C.A. No. 114

JCT: Repetition that the stay pending appeal continues after
the appeal with no way of removing it once the court..

CR: 16. The Krieger decisions have no application to the
charges against the Applicant since (i) the decision of
invalidity in Krieger was suspended indefinitely and never
in fact took effect and (ii) any constitutional deficiency
which did exist at the time of the Krieger decision (in
1999) no longer exists following the enactment (in 2003) of
the MMAR SOR/2003-227 and more recent Regulations Amending
the MMAR SOR/2003-287 (MMAR Amendments). The Applicant's
reliance on Krieger is misplaced.

JCT: If they keep repeating it enough, who needs to argue
why! And it's the MMAR in 2001, MMAR Amendments in 2003.

CR: C. This application raises no issue of public importance

JCT: This is insulting. 150,000 bogus busts are exposed by
an invalidation of S.7 that was not acknowledged, much like
the Parker invalidation of possession was not acknowledged
until they'd obtained 100,000 bogus convictions and had to
drop 4000 existing charges filed while the law was invalid.
But if they keep just denying it, it's denied.

CR: 17. In summary, the Applicant advances the startling
proposition that there is currently no valid prohibition
against cultivation of cannabis marijuana. There is no basis
whatsoever to assert that the law prohibiting the production
of marijuana was ever of no force and effect in Ontario.

JCT: They love to argue that a Parker declaration has to be
obtained in each and every one of Canada's 14 provincial
jurisdictions, pretty laughable but these are all lawyers,
judges too, so really stupid stuff gets heard all the time.

CR: This is evidenced simply by the fact that all courts in
Canada (including Alberta) have continued, without
interruption, to prosecute and sentence production of
marijuana offences on a daily basis and the various Courts
of Appeal across the country have continued to endorse these
decisions.

JCT: Har har har har. During the two years John The Engineer
was arguing the Parker invalidation of S.4 possession
prohibition had taken effect, all Canada's courts were
prosecuting and sentencing possession of marijuana offences
on a daily basis. Finally, the Court of Appeal found that
John The Engineer was right and all Canada's judges and
lawyers were wrong. Once again, John The Engineer is arguing
that the Krieger invalidation of the S.7 cultivation
prohibition has taken effect while Canada's courts are once
again all prosecuting and sentencing cultivation of
marijuana offences on a daily basis. It's deja vu. Lawyers
wrong, Engineer right. So it is no validation to point out
that all the courts that were wrong last time are right this
time.

CR: 18. The constitutional deficiencies identified by the
jurisprudence including the Krieger line of cases,

JCT: Pierre's only referring to one Krieger cultivation
count while the Crown's trying to confuse things by bringing
in non-relevant trafficking one.

CR: stemmed from the fact that the CDSA did not provide an
exemption for the medical use of marijuana. This issue has
now been properly addressed by the adoption of the Marijuana
Medical Access Regulations as amended.

JCT: Too late. Or is too late just as good as on time?

CR: There is therefore no merit in the position advanced by
the Applicant and no issue of public importance to justify
that leave to appeal be granted in the instant case.

JCT: Absolutely no argument, just constant repetition of
denial or the bogus pretexts used so far.

CR: PART IV - SUBMISSIONS CONCERNING COSTS

19. The respondent does not seek costs.

PART V - ORDER REQUESTED

20. The respondent requests that the application for leave
to appeal be dismissed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Dated at Toronto this 23rd day of May 2007.
Brian G. Puddington
Counsel for the Respondent
Attorney General of Canada.

JCT: Pretty weak case for the Crown. I'll be putting
this into our final Reply to be filed on Monday.
Stay tuned.


--
Abolitionist Debt Slave Leader John C."The Banking Systems Engineer"
Turmel for UNILETS interest-free time-based currency in U.N. resolution
C6 to Governments in the http://www.un.org/millennium/declaration.htm
http://www.cyberclass.net/turmel USENET blog: alt.fan.john-turmel