JCT: Pierre Drouin is challenging his section 7 cultivation
charge based on the Krieger invalidation of the section 7
cultivation offence. Real Martin adopts Drouin's arguments.
I'm challenging my section 5(2) possession for purpose of
trafficking charge based on the Krieger invalidation of the
section 7 too.

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)
APPLICANT'S REPLY
PIERRE DROUIN, APPLICANT
(Pursuant to Section 28)
OVERVIEW
1. The Applicant was charged with an offence no longer
known to law since the Alberta Court of Appeal ruling on Dec
4 2003 struck down the CDSA Section 7 marijuana cultivation
prohibition (and, by implication, Section 4 possession) and
the Crown then failed to obtain a Section 65 Supreme Court
of Canada stay within 60 days of the dismissal of the appeal
by Feb 4 2003. Applicant was charged under S.7 on June 11
2003, after Krieger Invalidation Day. The Supreme Court
denied leave for a Crown appeal on Dec 23 2003.
2. Crown Attorney S. David Frankel first advanced the
startling proposition that the interim stay granted to the
Appellant by one judge of the Alberta Court of Appeal until
further order of the court continues to stay the Acton
invalidation even after the Final Order of the Court had
dismissed the Crown's appeal and after leave to appeal to
the Supreme Court of Canada was refused. The Crown continues
to now hold that preposterous rationale for prosecuting
about 5000 marijuana charges per month, hundreds of
thousands, over the past 4 years. This is the main point of
appeal from Ontario Court of Appeal's decision.
3. The Crown argues Applicant has essentially paralyzed
the prosecution by seeking prerogative relief (prohibition),
that interlocutory appeals in criminal matters should not be
encouraged. Higher court challenges to the jurisdiction of
the lower courts do suspend, not paralyze, proceedings and
such appeals for prerogative relief are allowed in the
Criminal Code whether they should be encouraged or not. Even
if not, cases affecting hundreds of thousands of people
should be exempted.
4. The Crown argues such appeals would fragment the
criminal trial process but, since this was a pre-trial
application, the trial hasn't even started yet. The Crown
says Applicant has raised no jurisdictional issue but if the
statute was invalidated before Applicant was charged, the
court has no jurisdiction
5. The Crown points out that an Order was made by the
Court of Appeal for Alberta staying the effect of the trial
judge's declaration of invalidity but doesn't mention why.
Did the Crown argue that Krieger's judge was wrong? No, that
was done and rejected in the appeal. The Crown's only
argument before O'Leary was that they were the Appellant and
deserved a stay pending the appeal or until further order of
the court. Such further order could be to shorten the
extension but there is no power to lengthen it past the
appeal. Upon reading the Crown's Application to Justice
O'Leary for the extension of the time "pending the appeal or
until further order of the court," it can be found that the
status as Appellant was cited over 20 times. In the Nov 16
2005 transcript in R. v. Cornelssen (Superior Court of
Alberta) before Justice Read, Crown Attorney in the Krieger
appeal, Scott Couper, examined by Cornelssen testified on
page 20:
<<A: Well, it was an interim motion, sir. It was meant to
keep matters at the status quo in terms of the Section 7(1)
remaining in force until further order of the Court...
Q:... you say the Appellant applies for an extension of of
the stay. Is it not the fact your status as an appellant
that gives you the right to ask for a stay? If you were not
appealing the case, you wouldn't have any right to ask for
the stay?
A: Well, I think the Appellant would have a right to apply
and that's what we were doing...
Q: We see the appellant seeks a suspension of the order
"until the final disposition of the appeal."
A: Yes.
Q: Now, does that mean that when the appeal is over, the
extension is over?
A: Yes....
Q: Can you conceive of any circumstances where you could ask
for an extension of the stay if you were not the appellant?
A: It was a -- it was -- it would be a -- it's the appellant
that has the right to ask for the stay.
Page 26: Q: Now it seems to me that if you were not the
appellant, the judge would not have power to grant that
extension, is that correct?
A: Well, it's -- it's -- it's triggered by an appeal.
Q: So no appeal, no right to grant an extension.
A: yes.
Q: So you just couldn't walk in and say: Gee, we really
didn't like that decision and we'd like it suspended for
some indefinite period. It depends upon the appeal?
A: Yes. >>
6. So the Crown in Krieger admitted that he was seeking
an interim stay though the Crown nonetheless now argues the
order suspending the declaration of invalidity remains in
force 4 years later.
7. And what if the appeal had been heard within the one
year. An Appellant's stay would not have been necessary and
when the appeal was dismissed and 60 appeal period had
elapsed, the Acton invalidation would have taken effect.
That the appeal took 13 months and needed a stay pending
appeal cannot mean that the judgment is now forever stayed
by the lower court ruling.
8. The Crown notes that the Ontario Court Appeal has
accepted that the Appellants' stay must still be lifted even
though the court should have known there is no way to apply
to a functus officio court that has closed the appeal file.
Mr. Couper even testified that Krieger Defence counsel
applied to lift the stay right after the appeal had been
dismissed but the Court refused to entertain his motion. If
the stay needs to be lifted, the court was derelict in not
dealing with it but if the stay lapsed with the Appellant's
status, they were correct because their functus officio
court had no status to entertain any new application. A stay
had to be gotten out of the Supreme Court. Why else would
there be a provision in the Supreme Court of Canada Rules
for a stay pending appeal if stays out of functus officio
courts were still in force?

9. In their Final Written Memorandum, the court made no
mention of any stay that needed to be removed, the court
only wrote that the appeal against the Acton striking down
of Section 7(1) had been dismissed.
10. The Crown asks: "Did R. v. Krieger (2000), affirmed
in R. v. Krieger (2003), invalidate section 7(1) of the
CDSA?" That is not the right question. The Supreme Court of
Canada online note on the Krieger says: "Section 7(1)
inasmuch as it it relates to marijuana, declared
inconsistent with the Charter; Appeal with respect to S.7(1)
dismissed." So the Supreme Court notes that the S.7(1)
offence was struck down. The real question would be: "Does
the interim "stay until further order of the Court" need to
be vacated after the "Final Order" of the Alberta Court of
Appeal has dismissed the Crown's appeal and did the O'Leary
stay lapse on Feb 04 2003 when the Crown did not obtain a
Supreme Court of Canada Section 65 stay within 60 days of
the dismissal of the appeal?
11. The Crown argues 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. Once the Parker
Court struck down the S.4 offence, charges were dropped all
across Canada and once the Krieger Court struck down the S.7
offence, charges should have been dropped all across Canada
too.
12. The Crown argues that the fact 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 is proof
that the S.7 offence has not been invalidated. But during the
two years the Parker invalidation of the S.4 possession
offence had taken effect on Terry Parker Day, all Canada's
courts were prosecuting and sentencing possession offences
on a daily basis too. All were later proven wrong. Here now,
the Krieger invalidation of the S.7 cultivation offence has
taken effect and Canada's courts are once again prosecuting
and sentencing cultivation of marijuana offences on a daily
basis. It's deja vu. All wrong before, all wrong now.
13. The Crown further argues that 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 MMARs. But the MMAR issued in 2001 had not
worked to save the prohibitions and Applicant was charged
before the MMARs were revalidated by the Hitzig court in Oct
2003, 8 months after the Krieger invalidation of the Section
7 prohibition on cultivation and 26 months after the Parker
invalidation of the s.4 offence had taken effect. Once
struck down, statues can not be resuscitated other than by
Parliament. The Section 4 prohibition could not have been
resurrected by the Ontario Court of Appeal's Order in Hitzig
once it had been deemed repealed pursuant to S.2(2) of the
Interpretation Act no matter what they said they can do.
14. With the legitimacy of 200,000 prosecutions
depending on whether an Appellant's stay survives the
appeal, this is an issue of national importance.
15. The Crown keeps referring to the medical use issue
as settled law but it has nothing to do with this pre-trial
application for prohibition on the grounds the offence is no
longer known to law, a legal question, not a constitutional
one. It's an issue of whether the law has been repealed or
not, the reason for its repeal being immaterial to the case
even if Applicant is now a qualified Health Canada exemptee.
16. Applicant submits that the possession prohibition
in S.4 is struck down (by implication) with the invalidation
of the cultivation prohibition in S.7!
17. Applicant submits that the Crown should be ordered
to expunge the bogus convictions of all Canadians convicted
under the invalid S.7 and S.4 offences since Feb 4 2003.

Dated at Jogues on Monday May 25 2007

Pierre Drouin, Applicant.
Box 5 Jogues ON P0L 1R0
Tel/fax: 705-362-7502 Email: dpeted@...

JCT: Pierre is our best hope to establish the Krieger
invalidation!



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