No. 041076274Q1
 
IN THE COURT OF QUEEN'S BENCH OF ALBERTA 
JUDICIAL DISTRICT OF EDMONTON
BETWEEN:
HER MAJESTY THE QUEEN
- v -
MAX LEONARD CORNELSSEN Accused

PROCEEDINGS
Edmonton, Alberta 16th November, 2005
Transcript Management Services
5th Fl North, 10365 - 97 Street Edmonton, AB (780) 427-6181

Proceedings taken in the Court of Queen's Bench of Alberta, 
Law Courts Building, Edmonton, Alberta
November 16, 2005 2:00 P.M. Session

The Honourable Justice Read     
Court of Queen's Bench of Alberta

G. Ozem, Ms. For the Crown
(NO COUNSEL) For the Accused
S. Smithies Court Clerk

THE COURT: Good afternoon, please be seated.
MS. OZEM: Good afternoon, My Lady.
THE COURT: Thank you. Please be seated. Okay, we have an 
application by Mr. Cornelssen this afternoon.
THE ACCUSED: Yes, ma'am.
THE COURT: And we are going to hear it. I have had 
voluminous materials provided to me and I have had an 
opportunity to read them. So I am, I think, up to speed in 
terms of what the parties have provided on paper. I think we 
have perhaps one preliminary issue to deal with before we 
get into the meat of the argument, and that is the fact that 
there were two affidavits filed by the Crown, one yesterday 
and one today. These two affidavits, one by Mr. Iovinelli 
and one by Mr. Couper, both corrected one part of an -- of 
earlier affidavits that each had sworn, correcting a date in 
each case. The date in the original affidavits was incorrect 
so the affidavits that have now been filed, and they were 
filed late obviously and by fiat which I granted, one 
yesterday and one today, simply correct that date. So I 
think the first issue is, because I know you did not consent 
to this, Mr. Cornelssen. Are you taking any issue with -- 
with the fact that these affidavits were filed?
THE ACCUSED: No, madam, although I would like to address the 
subject when I talk to the witness, Mr. Couper.
THE COURT: Oh, okay. So you will cross-examine --
THE ACCUSED:Yes.
THE COURT:- in respect to --
THE ACCUSED: Yes.
THE COURT: Fair enough. Are there any other preliminary 
matters that we need to deal with before we get started?
MS. OZEM: One other preliminary matter, My Lady. At 
approximately 3:45 on November 14th I was served with a 
notice of motion returnable for today's date this afternoon, 
together with an affidavit signed by Mr. Cornelssen 
containing new materials. I don't know if the Court has 
those.
THE COURT: I may not. These things do not make it to the 
file very quickly and I do not have those -- they have not 
made it to my file yet. I have no knowledge of these.
MS. OZEM: I would just bring to the Court's attention at 
this time that I had become aware prior to November the 8th 
that the accused had come into possession of materials that 
he was intending to rely on with respect to today's motion.
Accordingly, on November the 8th I faxed to him a letter 
which is confirmed as being received, that had he intended 
to rely on any further materials, that he must attend before 
a Justice and obtain the consent of the Court by way of a 
fiat in order to file materials in order to have them appear 
before the Court and in -- in order to have the Court 
consider those matters for this hearing.
Despite the fact that I had sent that letter to him and told 
him that he required the consent of the Court in order to 
file those materials, that letter incidentally being sent on 
November the 8th, I was instead served with this notice of 
motion with respect for a request for late filing or 
permission to file materials past the deadline, together 
with the affidavit containing the materials in question. As 
I say, I was served at approximately 3:45 on November the 
14th. Mr. Cornelssen is aware from previous experience that 
fiats are required. In fact, he had to obtain one on August 
the 29th in order to serve me with a notice of motion 
returnable that date for a court appearance that we had. So 
I just wish this put on the record because there has been a 
consistent repeated pattern wherein I'm getting served with 
documents beyond deadlines that do not have fiats. It would 
be one thing if he had the Court's consent to do this, 
however, with respect to the materials that are contained 
within his affidavit, I've had the chance to review them. 
Quite frankly, they are of no concern to me and I'm prepared 
to proceed regardless.
But I just wish to give him full notice at this time that if 
this happens again, the Court (sic) will be objecting to any 
of those materials being brought before the Court or being 
considered by the Court. He was given notice by me in 
writing on the 8th and still chose to disregard that notice.
THE COURT: Does the notice of motion set out application for 
other relief, other than what I thought was before me today?
MS. OZEM: Well, the abridgment of -- no, the abridgement of 
time with respect --
THE COURT: Okay.
MS. OZEM: -- to ex -- the extension of the --
THE COURT: Okay.
MS. OZEM: -- deadline and the filing of the materials.
THE COURT: Okay. Thank you. Mr. Cornelssen, do you have any 
comment with respect to that?
THE ACCUSED: First of all, that I'm afraid I --
THE COURT: We normally stand when we are speaking -
THE ACCUSED: I'm sorry.
THE COURT:-- that way I can tell who is talking. 
THE ACCUSED: Okay. My fax machine broke down and I've been 
using a third party's fax, and they haven't been quite as 
reliable on phoning me when a fax came in as it could be and 
I do not recall that fax that she -- that she speaks of. But 
we did file documents that we received from the Archives in 
Calgary that we did not receive until after the filing 
deadline, and could not have possibly put them in 
beforehand. And as far as for getting a fiat and seeing a 
Judge beforehand, it's considerably easier for the Crown to 
do that than it is for me because I live 30 miles out in the 
country, and I'm afraid I didn't ask permission to file that 
late but I did put in a motion of order requesting 
permission to so. And if the Crown is willing to accept this 
material from the Archives that I've filed late, and I would 
ask if the Court has a copy of this.
THE COURT: I do not have a copy on the file and I am hoping 
you have an extra copy. The Crown obviously is prepared to 
go ahead notwithstanding --
THE ACCUSED: Yes.
THE COURT: -- but obviously if you want to rely on this 
material, it would be very helpful if I had a copy.
THE ACCUSED: Well, then --
THE COURT: It will be somewhere in the filing downstairs, 
but it has not made the file yet. That is one of the reasons 
we establish deadlines, is because of these kinds of 
difficulties.
THE ACCUSED: Yes.
THE COURT: You know, it is a big operation down in the 
Clerk's Office and it takes days sometimes for things to get 
on a file.
THE ACCUSED: I did take copies up to the Trial Coordinator's 
office and I thought maybe that would - at first I didn't 
have them but -- What that would be, madam, would be --
THE COURT: Are you going to be able to proceed now? Is this 
your only copy?
THE ACCUSED: No, I have an extra copy.
THE COURT: Oh good, okay.
THE ACCUSED: That was the copy I was going to give to Mr. 
Couper, but I have a third copy that I could give.
THE COURT: Okay, thank you. All right, well, Mr. Cornelssen, 
you are going to have to guide me by the hand a bit through 
this new material because I have not read it but I have read 
everything else. So, go for it. 

*Argument
THE ACCUSED: Okay. Now, would madam prefer, I could read my 
original application, or would you just like me to -- to 
summarize it, try to get to the crux of the matter as soon 
as possible?
THE COURT: Yes, I -- as I said, I have read it so you do not 
need to read it again to me.
THE ACCUSED: It's -- and it is --
THE COURT: It would be helpful if you would summarize it and 
what I would like you to start with is clearly telling me 
what it is you are seeking today, and then go on to explain 
why it is I should give it to you. Okay.
THE ACCUSED: Well, what I'm seeking today is a recognition 
by the Court that Section 7(1) was struck down by Judge 
Acton in the year 2001. 
THE COURT: You are talking about the Controlled -
THE ACCUSED: Yeah, I --
THE COURT: -- Substances and Drugs Act?
THE ACCUSED: -- I'm sorry, yes, of the CDSA -
THE COURT: Okay.
THE ACCUSED: -- in regards to cultivation. And we have 
specifically limited our application just to Section 7{1) to 
make it as simple as possible, rather than bringing in 
Section 4, Section 5 which we feel are also being quashed by 
the implication or are no longer ii effect. If 7(1) is gone, 
then Section S4 regarding possession --
THE COURT: Okay. Now, as I understand it, the charges that 
you are facing at the moment are under Section 7(1) and 
under Section 5(2).
THE ACCUSED: 5(2), yes.
THE COURT: Both of the CDSA.
THE ACCUSED: Yes.
THE COURT: So am I to understand what you are saying, is 
that you -- the application you are making is with respect 
to both charges.
THE ACCUSED: No, just Section 7(1) for simplicity sake.
THE COURT: Oh, okay, okay. I am sorry --
THE ACCUSED: Although it has been admitted by the Crown that 
if it's legal to cultivate it, then obviously it must be 
legal to possess.
THE COURT: Okay, so you are seeking a declaration from me in 
respect only to --
THE ACCUSED: For 7(1).
THE COURT: -- the charge under Section 7(1)? 
THE ACCUSED: Yes.
THE COURT: Okay.
THE ACCUSED: Yes.
THE COURT: And the declaration you are seeking is that the 
charges against -- that that charge against you should be 
quashed. 
THE ACCUSED: Well, which -- to recognize that the law is 
dead and that the charges should be quashed against me 
because the law is dead, and also for everyone else who's 
been charged since that time. In fact, as I understand it, 
if the law has been declared unconstitutional and Judge 
Acton did strike it down as being unconstitutional, the 
Court of Appeal and Judges Wittmann, Costigan and LoVecchio 
on December the 4th, 2002 upheld Judge Acton's decision to 
strike down Section 7(1) and the law is officially dead at 
this point. And only Parliament can enact a new law, and so 
far they have not done so.
THE COURT: Okay, so you are arguing and I understand that 
you are arguing about the Krieger case.
THE ACCUSED: Yes.
THE COURT: Okay.
THE ACCUSED: Yes, ma'am. So --
THE COURT: We are trying to create a record here as well as 
-- I mean, you and I both know what we are talking about but 
I would like you to explain just on the record what it is 
that you are talking about, because otherwise if you ever 
get a transcript of this it is going to be --
THE ACCUSED: It's going to be --
THE COURT: -- quite incomprehensible.
THE ACCUSED: -- very, very confusing. But I'm going to try 
to summarize as best I can. I have my original application 
here but --
THE COURT: Okay.
THE ACCUSED: -- you have read it --
THE COURT: I have.
THE ACCUSED: -- and it's important but I don't -- I believe 
that the crux of the matter, and I do believe the Crown 
agrees with me on this. It's going to come down to whether 
the suspension that was originally put on by Judge Acton 
extended by Judge O'Leary, if that is still in effect after 
the Court of Appeal. So if I could summarize briefly to get 
to that point. Judge Acton struck it down and said it's 
unconstitutional to prevent sick people from getting their 
medicine. It's a violation of Mr. Krieger's rights and 
everyone else's rights under the Charter of Rights and 
Freedoms, which is the supreme law of the land. Now, when 
it's appealed to the Court of Appeal they upheld Judge 
Acton's striking down of Section 7, and as far as I see it 
from my point of view and from -- it's dead at this point. 
She struck it down, the Alberta Court of Appeal agreed and 
struck it down. Now, where the point of contention is, is -- 
and then it went on to the Supreme Court of Canada on the 
23rd of December, 2003 and the Supreme Court of Canada 
dismisses the Crown's appeal. Makes no mention whatsoever of 
there being a suspension on it, it says the law is dead. 
Now, Mr. Frankel (phonetic). Crown Prosecutor David Frankel 
in a memorandum to the Supreme Court of Canada makes the 
statement that Section 7(1) has been struck down by the 
highest Court of Alberta as having no force and effect, and 
if the stay were vacated which it could be at any time, then 
there would be no prohibition against cultivation of 
marijuana in Alberta. Now, this is the statement of S. David 
Frankel and I believe that it's also quoted by the Crown, so 
I think we're in agreement up to this point and what it 
comes down to is, is the stay still in effect. Now, to 
address that and when Mr. Couper is able to answer 
questions, we'll get into it in --
THE COURT: Well, if you would like to call Mr. Couper now, I 
think that might be -- it might be an appropriate time --
THE ACCUSED: It might be a good -- good --
THE COURT: -- to deal with that because I think his evidence 
relates to the issue of the stay.
THE ACCUSED: Yes, because it comes -- it comes down to -- 
perhaps if I could just summarize briefly as what -- what I 
feel the facts are and I stand to be corrected if I -- if I 
have them wrong. But what the Crown -- what Mr. -- well, 
what both affidavits state is in their original affidavit 
they state that on March 18th after the judgment was handed 
down, that they noticed that no mention had been made of the 
stay. And defence attorney LoVecchio makes a motion at that 
time that we lift the suspension and the Crown dismisses it. 
Now, there's no --
THE COURT: The Crown or the Court?
THE ACCUSED: Or the Court -- the Court dismisses it, yes. 
And there is no record of this in the memorandum that the 
Court gave on the 18th of March. There's no record of it 
whatsoever and yet it's so important. How -- how could this 
be? Now, on the original affidavits that they filed, it said 
that he made this application on the 18th of March. I took 
that as an explanation, well, this is why it's no-written in 
their memorandum, because they already had the memorandum 
all written up and that's why it doesn't show. But then we 
get the corrected affidavits and we find out that Mr. 
LoVecchio -- am I pronouncing that name right?
MS. OZEM: No.
THE ACCUSED: No.
THE COURT: Sorry?
THE ACCUSED: Please correct me.
MS. OZEM: Iovinelli.
THE ACCUSED: Iovinelli, right. Sorry, I've confused him with 
a Judge in the Appeal Court, I do believe. Iovinelli. 
Iovinelli, I do -- I do believe would be the correct 
pronunciation. But did Mr. Iovinelli -- made his application 
on December the 4th. After the final decision of the Court 
has come down and they hadn't mentioned the stay, he moved 
to have the stay lifted and the Court dismissed his appeal. 
And yet there was no mention of this in the memorandum that 
comes out on March the 18th. And I'm forced to wonder now, 
the judges had three months to prepare that memorandum. How 
could they have not mentioned this dismissed application? 
And our point is that -- that the stay was an interlocutory 
stay and that it was granted on the basis to carry it over 
until the appeal. Now, I realize it says until the further 
order of the Court, but this is kind of an add-on. To my 
mind it means, until the appeal or whatever else you can 
give us but that it cannot go past the appeal because it's 
an interlocutory motion and by definition, dies when the 
appeal is over. And this is what I would like to examine 
this Mr. Couper on, to see if it was an interlocutory motion 
that he made and what reason he would have not to ask for a 
formal stay of effect until the Supreme Court could hear it. 
It would seem to me that that would be the appropriate way 
to go, and yet he did not do that. He sat silent and went 
with Iovinelli's application to have it lifted when in 
effect, it was -- died and there was nothing left to lift. 
Now, I don't know if I've explained that very well but --
THE COURT: No, you have explained it very well, I understand 
perfectly well what you are talking about.
THE ACCUSED: Okay.
THE COURT: It seems to me that it might be an appropriate 
time now to deal with Mr. Cornelssen (sic). He has been -- 
he's a Crown witness -
THE ACCUSED: Yes.
THE COURT: -- he is not yours and it is a bit out of order 
to be putting him up when you are making your argument, 
except that my understanding is, and you can correct me if I 
am wrong, Ms. Ozem, that the evidence that the Crown seeks 
to offer is contained within the affidavit or the aff-- both 
affidavits, and that really you have no questions for this 
witness. And that he is only being offered for the purposes 
of cross-examination, am I correct?
MS. OZEM: Well, I wish to make it clear, I did not subpoena 
him, the accused subpoenaed him.
THE COURT: I understand that.
MS. OZEM: He's the accused's witness.
THE COURT: But you agreed to have him --
MS. OZEM: The accused is -- the accused is free to cross -- 
well, first of all I should point out that the subpoenas 
were illegally produced or illegally served on the witness. 
I've spoken to the witness about this, the witness is 
prepared to waive that irregularity, as am I but for this 
occasion only. With respect to the procedure, ma'am, it 
would be my contention that Mr. Cornelssen is free to cross-
examine Mr. Couper on the affidavit, however, I would 
reserve my right to re-examine on anything that arises out 
of his cross-examination.
THE COURT: Fair enough.
THE ACCUSED: Could I ask why you feel the subpoenas were 
illegally served?
MS. OZEM: Because the Criminal Code of Canada requires that 
a peace officer or someone specially designated serve the 
subpoena. You are not specially designated and you're not a 
peace officer. 
THE ACCUSED: Well, this is at variance with what the Clerk 
of the Court told me but -- 
THE COURT: Clerks of the Court are not legally trained --
THE ACCUSED: Yes.
THE COURT: -- they are practically trained and they -- you 
know, they are certainly well versed in being clerks of the 
court, but I think it is always dangerous to take legal 
advice from the clerks of the court.
THE ACCUSED: Well, I will take that under consideration for 
future subpoenas.
THE COURT: Are you ready now to cross-examine Mr. --
THE ACCUSED: I believe I am.
THE COURT: -- Couper? Okay. I am going to ask then for Mr. 
Couper to come forward. Thank you very much for coming 
today. I know that you have waived this subpoena 
irregularity and I do appreciate your appearing today. Could 
you swear the witness, please.

*SCOTT ANDREW COUPER, Sworn, Cross-examined by the Accused
THE COURT: Mr. Couper, just for the record before this 
cross-examination begins, could you explain what your 
position is, what your job is and what dealings you have had 
with anything that comes before the Court today?

A: Yes, My Lady. I am currently Crown counsel employed with 
the Department of Justice Canada in the Calgary office. I 
have been so employed with the Calgary office since October 
of 1998. There before, I was employed as Crown counsel with 
the same department in the Northwest Territories.
My involvement that brings me here to court today 
essentially involves the matter of Regina v. Grant Wayne 
Krieger, where Mr. Krieger was charged in August of 2 --of 
1999 with -- with one count of production of cannabis 
marijuana and one count of possession of cannabis marijuana 
for the purposes of trafficking.
I was the assigned Crown in that matter. I followed the 
matter through, there was a Charter hearing before Madam 
Justice Acton in October of 2000, wherein she gave a 
judgment in December of 2000. I was also counsel on the 
matter before the Court of Appeal. The appeal was -- was 
heard in December of 2002.
THE COURT: Thank you. Go ahead, Mr. Cornelssen. 
Q: THE ACCUSED: Thank you for appearing here today, Mr. 
Couper. 
A: You're welcome. 
Q: With respect to the original affidavit that you've got, 
where it was stated that March 18th was the day that -- in 
question where the application to -- that the -- that the 
stay was made -
A: Yes. 
Q: Now, I -- when I received your affidavit and Mr. 
Iovinelli's affidavit -
A: Before you go on, sir, may I see a copy of the affidavit? 
I believe I may have left one with Ms. Ozem. Thank you. 
MS. OZEM: The original one or your supplemental?
A: The supplemental.
THE COURT: Perhaps we could put both before him right now 
just so that he has both -- both affidavits. Thank you. 
A: Sorry to interrupt.
THE COURT: Okay, just make sure he is clear as to which one 
you are talking about when --
THE ACCUSED: Which one I'm talking about --
THE COURT: -- you ask him questions.
THE ACCUSED: -- yes.
MS. OZEM: Do you have both, Mr. Couper?
A: Yes, I do, thank you.
THE COURT: Okay, go ahead.
Q: THE ACCUSED: Okay. The thing that struck me when I read 
the -- the affidavits is that they appeared to be mirror 
images of each other's. Mr. Iovinelli's affidavit and your 
affidavit side by side, they're exactly the same other than, 
of course, you know, the names. And like I say, a mirror 
image of each other's.
Now, how were these affidavits produced? Like, did you 
consult with Mr. Iovinelli and sit down and bring out your 
journals and see, you know, how everything happened?
A: I didn't consult with Mr. Iovinelli with regard to the 
specific preparation of these affidavits. I consulted with 
Ms. Ozem but not with Mr. -- Mr. Iovinelli.
Q: So would it be -- would I be correct in assuming that 
affidavits were prepared by Ms. Ozem and sent to you for 
your signature?
A: Yes, yes.
Q: And same with Mr. Iovinelli?
A: Yes.
Q: Yes. Now, how is it that nobody noticed the mistake about 
March 18th? It seems like an affidavit is a pretty important 
thing.
A: It is.
Q: How -- how was it mistaken? What -- was there actually a 
hearing on March the 18th?
A: No, there wasn't, sir.
Q: It was just written and handed down?
A: Yes. The -- the actual hearing of the appeal was on 
December 4th of 2002.
Q: Yes.
A: The Court of Appeal panel delivered a judgment from the 
Bench dismissing the appeal on that date, and the memorandum 
of their judgment was delivered the next March 18th.
Q: March 18th. Yes. Now, in their -- in their memorandum 
that they delivered they make no mention whatsoever of the 
stay being extended.
A: Yes.
Q: And when I originally read that I thought, well, gee, 
this December 4th of 2002 is because they've already written 
up their memorandum and it's just been handed in -- you 
know, was made after it was done and that's why it's not 
written up. But then with the corrected affidavits then we 
find that Iovinelli made his application on December the 4th 
after the final judgment had been delivered, I assume, and 
he noticed that there was no mention of the -- of the stay 
in there, so he thought he'd better, you know, make 
something out of it.
This is what -- what I don't understand is that the three 
judges had three months to prepare their memorandum. Why do 
they make no mention of this application?
A: I can't speak for the Court of Appeal, sir. But what I 
can -- what I can tell you is at the end of the hearing, the 
matter of whether or not the suspension ought to be lifted 
was addressed. It was brought up by Mr. Iovinelli. The Court 
of Appeal panel declined at that time to deal with the 
application and in exchanges between counsel and the Bench 
the view of the Court was expressed that in order to do 
that, in order to address the issue of whether or not the 
suspension ought to be lifted, it required a hearing with -- 
with evidence being called.
Q: A full hearing --
A: Yes.
Q: -- with three Judges, yes.
A: Yes.
Q: Now, this is in spite of the fact that that extension was 
granted by Judge O'Leary on very little evidence. And was it 
not granted as an interlocutory motion?
A: Well, it was an interim motion, sir. It -- it was meant 
to keep matters at the status quo in terms of the Section 
7(1) of the CDSA remaining in force, and Mr. Krieger's 
personal exemption remaining in force until further order of 
the Court.
Q: Could we review - we got from the Archives your written 
submission on your application for the O'Leary hearing.
A: Yes.
Q: And I believe there's a copy there in front of you?
A: I don't have one in front of me, sir, unless it's in the 
-- it doesn't appear to be in here.
Q: Now, I've highlighted a few of your comments here. This 
is the written submission of the Crown Appellant on Chambers 
application where you are applying for an extension to the 
stay because it's about a week before December the 11th, and 
Judge Acton's one-year stay is destined to run out. So 
you're making this appeal to the -- to Judge O'Leary that 
you be granted an extension. Would I be correct in saying 
that?
A: Yes, my application to Justice O'Leary was to extend the 
suspension ordered by Justice Acton beyond the one year - 
beyond the one year period. 
Q: Okay -
A: Past December 11th, though, which would have been the one 
year anniversary of -- of her judgment. 
Q: Of her decision? 
A: Yes. 
Q: Yes. Now, I see in your first line where you say the 
appellant applies for an extension of the stay. Now, 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, 
would you have any right to ask for the stay?
A: Well, I think the appellant would have a right to -- t 
apply and that's what we were doing.
Q: Yes, because you were the appellant. But if you weren't 
an appellant -- let's say you weren't appealing the case you 
just wanted the stay extended and you're not appealing the 
case.
A: Well, I can't --
Q: That would not be granted, would it?
A: I can't comment on that, sir. The fact -- the fact 
remains that we were the appellant and --
Q: You were the appellant --
A: Yes.
Q: -- yes. So that -- that is your status.
A: Yes.
Q: So on the bottom of the -- of the page we see the 
appellant seeks an extension of the constitutional exemption 
and suspension of the order, and I've highlighted, Until the 
final disposition of this appeal.
A: Yes.
Q: Now, does that not mean that when the appeal is over, the 
extension is over?
A: Yes. If you look at page 10 of the -- of the brief 
however, sir, under the title Relief Sought, I asked for an 
extension of the period suspending the effect or enforcement 
of the Trial Judge's order striking down Section 7(1) of the 
Controlled Drugs and Substances Act from one year as 
originally ordered, to until determination of the within 
appeal or until further order of this Honourable Court. And 
similarly, the same relief was asked for with respect to Mr. 
Krieger's personal -- personal exemption. The order I 
prepared which is exhibited to my affidavit, my first 
affidavit, was an order that I prepared prior to my 
attendance in Chambers that day. And I had specifically 
provided in the order for Justice --- for Justice O'Leary's 
review, my request that the stay last until further order of 
the Court. And that was what Justice O'Leary ordered.
Q: Yes. Well, in our reading of this we found that you've 
asked for -- asked for it two different ways. You've asked 
for it to be extended until the appeal, and you've asked for 
that 18 times, until the appeal or six times that you add, 
Or until further notice of the Court.
A: I don't -- I haven't gone through this to count so I 
can't --
Q: No, and I realize that you can't and let -- let me just 
quickly -- quickly read them because I've got them in --in 
yellow here.
On page 3, Section 7(1) of the CDSA was invalid and thus 
struck down. The Crown filed and served a notice of appeal, 
this means that you are appealing for the extension because 
you are the appellant. If you had not filed a notice of 
appeal, there would be no basis to ask for an extension.
In other words, it's an interlocutory motion as I understand 
it, to carry you over until the appeal is heard.
On page 5, The appellant seeks an order to extend the --
MS. OZEM: Excuse me --
Q: THE ACCUSED: -- one-year stay --
MS. OZEM: -- My Lady. The accused is trying to ask 18 
questions in one question. If he, in fact, has 18 places 
marked where he is alleging that Mr. Couper has, in fact, 
made admissions he should ask him them one at a time so that 
Mr. Couper can respond one at a time.
THE ACCUSED: Okay, I'll try to do better.
Q: THE ACCUSED: The appellant seeks an order to extend the 
one-year stay.
THE COURT: Where are you in --
Q: THE ACCUSED: I'm on page 5. Now, the key word here I 
believe is appellant and that it shows the status. That if 
he were -- if the Crown were not the appellant, were not an 
appellant, were not appealing, they would have no right to 
ask for an extension of the stay to allow this appeal to be 
heard and resolved. Further on the page -- 
THE COURT:  Mr. Cornelssen, if you have a question you 
should -- you should put it to the --
THE ACCUSED: Okay, well --
THE COURT: -- witness because otherwise, I mean, you are -
THE ACCUSED: Let-- let -- let me ask the question. 
THE COURT: -- making a comment but it is -- 
THE ACCUSED: Yeah.
THE COURT: -- you are getting no comment whatsoever from the 
witness.
THE ACCUSED: Okay, okay.
THE ACCUSED: Mr. Couper, if you were not -- that the Crown 
were not the appellant, would you had asked for an extension 
of the stay? 
A: Well, I can't say -- I can't say that. If we -- if there 
was -
Q: Would you have had the right to ask for an extension of 
the stay? Can you conceive of any circumstances where you 
could ask for an extension of the stay if you were not the 
appellant?
A: If we weren't the appellant? 
Q: If we weren't 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. 
Q: Precisely, precisely. It's your status as the appellant 
that gives you the right to ask for the stay. Now, you point 
out here that the Judge gets his authority to grant your 
stay under Section 683(3) that says his rights are the same 
as the civil appeal court. He gets his rights from the -- 
from the civil -- court civil appeals, is that correct?
THE COURT: Are you -- are you referring to another portion 
of --
THE ACCUSED: The --
THE COURT: -- the written submissions?
Q: THE ACCUSED: In -- in Mr. Couper's document. And Mr. 
Couper, if you can find it first, feel free to bring it up.
A: Are you referring to paragraph 10? 
Q Could you read it to me, please? 
A This Honourable Court's authority to extend the stay 
derives from Section 686(3) of the Criminal code. 
Q Yes, yes. That's what I'm referring to. 
A All right. 
Q Now, it seems to me that if you were not the appellant the 
Judge would not have the power to grant that extension, is 
that a correct interpretation of that? 
A Well, it's -- it's -- it's triggered by an appeal. 
Q: Yes, yes --
A Yes.
Q: So no appeal, no right to grant an extension. 
A: Yes.
Q: So you couldn't just walk in there 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.
Q: So my point is that when the appeal has been heard then 
on December the 4th and a final judgment has been passed 
down, that the appeal is ordered. A final order has been 
issued, The appeal is over. Now, how can Mr. -- Judge 
O'Leary's extension possibly last beyond the appeal?
A: Well, the order -- the order of Justice O'Leary is clear, 
sir. It says until further order of the Court. And on 
December 4th, 2002 when the appeal was heard the Court -- 
the Court of Appeal declined to address the issue of whether 
the suspension should stay or remain, preferring instead 
that a full hearing be held to determine --
Q: Well, this --
A: -- to determine that.
Q: This is the way it's explained in the affidavit, but what 
I don't understand is how when the Crown is no longer the 
appellant, because when the appeal is over you're not the 
appellant so you do not have a right to ask for an 
extension. And the Judge, because you're no longer an 
appellant, does not have the authority to give that 
extension according to, you know, the law that you quoted a 
moment ago.
A: Well, Justice O'Leary's order provides that --
Q: Up until the appeal --
A: -- that the Court --
Q: I totally --
A: --of Appeal.
Q: I totally agree. That the stay was suspended by Judge 
Acton for one year, I agree. That Judge O'Leary extended it 
until the appeal or until further order of the Court which I 
take it to mean less than the appeal or whatever you'll give 
me, but not beyond the appeal.
MS. OZEM: Again My Lady, this isn't a debate with the 
witness. If he has a question, let him ask a question and 
let him let the witness respond.
Q: THE ACCUSED: Well, my question is then, on what legal 
basis does the Crown get an extension beyond the appeal, 
when your right to an extension depends upon you being the 
appellant and the Judge's power to grant that extension 
depends upon you being the appellant and when the appeal is 
over you are no longer the appellant?
A: Well, it's -- it's -- it's a matter of further relief 
that can be dealt with by the -- by the Court of Appeal. 
Justice O'Leary's order kept -- kept that alive.
Q: Until the appeal.
A: Until further order of the Court.
Q: But the further order of Court when you were no longer 
appellant.
A: The Court declined to deal with it on that particular 
date, saying it should be brought on an application. So the 
appeal didn't die on that date, it -- it extended with 
respect to that question only. Whether -- whether the 
suspension should be lifted or -- or carry on.
Q: Wouldn't it be normal for you as the Crown, as the 
appellant upon hearing the final order of the Court of 
Appeal saying the law is struck down, to say that I would 
like an extension. I would like this Court to give me a new 
extension until the Superior or Supreme Court of Canada can 
hear the ruling.
A: Well, Mr. Iovinelli made the application to lift the 
suspension and the Court did not -- declined to address it, 
saying someone's going to have to bring an application 
specifically to deal with that issue. And none -- none has 
been made so the order is still in effect.
Q: Even though the Crown is not the appellant anymore?
A: Well, the appeal -- that issue in the appeal is still 
alive.
Q: Under what power does --
A: Well, because -- because of Justice O'Leary's order. It's 
until further order of the Court.
Q: Which normally means or what the Court will give us. 
Until the appeal, you ask 18 times. Until further order of 
the Court, you ask six times. I believe your expectation was 
that O'Leary's suspension would last until the appeal. But 
when the appeal is over, how can the previous Judge's stay 
still be in effect? Would not these three Judges have to say 
we grant you an extension until the Supreme Court of Canada 
can hear this?
A: No, they were -- they were silent on whether -- on that 
question as I said, indicating that there would have to be a 
further application with evidence. The evidence would show 
what -- what changes were made to the regulatory scheme 
between the time Mr. Krieger was charged back in August of 
1999 to the -- to the date of the appeal.
Q: Well, then why wouldn't they put this in their 
memorandum, being such an important -- like, I'm facing life 
imprisonment, 150,000 people have been arrested under this 
law since that time. Why is not down in writing that this 
stay is still in effect, because they make no mention of it.
THE COURT: Mr. Cornelssen, you have already asked that 
question and --
THE ACCUSED: And he's already --
THE COURT: -- he has already responded and he cannot get 
into the mind of the Court of Appeal.
Q: THE ACCUSED: Is it possible -- is it possible that the 
reason they did not act to lift the suspension on Mr. 
Iovinelli's application, the fact that they knew that they 
did not have the power or the need to do it because it had 
expired with the end of the appeal?
A: I - - 1 can't --
MS. OZEM: Objection. He can't -- the witness isn't psychic, 
he can't anticipate what was in the minds of the Court of 
Appeal unless it was a matter of stated record, or unless it 
was a matter specifically discussed at the hearing.
THE COURT: Mr. Cornelssen, this witness is here to testify 
to facts. He is not here to debate the law with you or to 
try to get inside the minds of Court of Appeal Judges. He 
cannot.
THE ACCUSED: No. But unfortunately we're in a position where 
the only evidence that this stay is in effect is the 
affidavits of these two gentlemen.
THE COURT: I agree.
THE ACCUSED: And 150,000 people have been arrested under 
this depending entirely on that, and people's memories can 
fail and as we saw, there was an error made in the date. 
Both of them made the same error. Both of them corrected it 
at the same time. The original one gave them an excuse for 
not -- for not appearing. Well, it wasn't -- you know, it 
was already typed up and written up, but if it was decided 
on December the 4th, then that's where Mr. Iovinelli made 
this phantom application, because I have no evidence of it 
other than these affidavits which are, you know, stand 
corrected. Then why does it not appear in this March 18th 
memorandum that the Judges wrote up. 
It's so important and they make no mention of it whatsoever. 
And I face life imprisonment for a law that's not written 
down, that depends on the affidavits of Crown lawyers who 
are certainly not disinterested parties. For that matter, 
Iovinelli is not a disinterested party and when we have a 
chance to talk to him I'll ask him but --you know, he might 
have to return clients' fees for the last three years if the 
law's actually been dead and he knew it, and he continues to 
try to get them off one at a time and he could have just 
said it's not there. So they're not disinterested parties 
and it's the only evidence that the stay is in effect are 
those affidavits.
THE COURT: I understand your argument, Mr. Cornelssen. Do 
you have any more questions for this witness?
THE ACCUSED: I believe that's -- that's all that I need to -
- to -- to ask. I haven't received what I believe to be an 
answer, and maybe I'm asking the wrong person. Maybe I 
should be asking Your Honour if an interlocutory motion has 
ever been known to extend beyond the appeal. How it can by 
definition and if that --
THE COURT: Mr. Cornelssen, if you have no more questions for 
the witness, I would like to find out if your friend has 
any. And if she does not, I would like to be able to excuse 
this witness. So why do we not save argument for --
THE ACCUSED: Okay.
THE COURT: -- for once we have dealt with the witness. Ms. 
Ozem, do you have any questions for this witness?
MS. OZEM: Yes, ma'am. Thank you. 

*Ms. Ozem Re-examines the Witness
Q: MS. OZEM: Mr. Couper, with respect to the original 
affidavit that you executed on October 28th, 2005, where was 
the information from that affidavit gathered?
A: It was gathered -- it was gathered from -- from our file. 
In terms of the dates, Ms. Ozem, or -
Q: No, just in terms of -- Mr. Cornelssen asked you if I had 
provided you with the affidavit. 
A: Yes. 
Q: Where did the information come from that was contained 
within the affidavit? 
A: Yes. It came -- well, certainly it was on our files and 
it was provided by me to you.
Q: Okay. And then were you provided with a draft affidavit? 
A: I was, yes.
Q: Did you make any changes to that draft affidavit? 
A: I made -- I made one change -- if I might have a moment 
to find where I made it. At paragraph 3 of the affidavit, 
the second last sentence where I state the Court of Appeal 
declined to entertain the application, I made a change from 
the initial draft which read that the Court of Appeal 
dismissed the application. In my view, that wasn't quite the 
correct way of describing what -- what had occurred. It 
wasn't a case of Mr. Iovinelli's application being 
dismissed, but the just simply -- just simply declined the 
opportunity to address the question. 
Q: Prior to you swearing this affidavit, had you read the 
draft affidavit of Mr. Iovinelli? 
(A:) No, I hadn't, no. 
(Q:) Had you had any discussions with Mr. Iovinelli --Regard 
-- regarding this particular matter? 
(A:) NO. NO.
(Q:) I'd like to turn to the written submissions of the 
Crown Appellant on Chambers application, the one that you 
prepared for the order ultimately issued by Justice O'Leary.
(A:) Yes, the -- the written submissions? (Q:) Yes. Do you 
have that before you? (A:) I do.
(Q:) Now, you've indicated to Mr. Cornelssen at the bottom 
of paragraph 1, you had indicated in your last sentence that 
you were seeking a suspension of the order until the final 
disposition of the appeal. Is that correct? (A:) Yes, that's 
what I wrote. (Q:) Okay. However, in your prayer for relief 
you indicate the bottom of page 20 -- or sorry, bottom -- 
paragraph 20 at the bottom of page 10, top of page 11 that 
you were requesting one of two things. What are the one of 
two things that you request?
A: I was requesting alternative reliefs until the -- that 
the suspension be extended until the resolution of the 
appeal, or until further order of the Court. That was the 
relief I had -- I had sought.
Q: Why did you express that prayer for relief in the 
alternative?
A: I had had discussions with -- with other counsel in my 
department with regard to how long we would want this 
suspension to -- to go on, and the feeling was that if the 
appeal was dismissed, we would want an opportunity to call 
evidence to show the changes in the regulatory --regulatory 
scheme with regard to medical access to marijuana, and how 
it's changed since Mr. Krieger was charged in 1999. And we 
had felt that the order should -- that we request the Court 
to impose the -- simply stated until further order of the 
Court to allow us to call such evidence.
Q: And was that evidence anticipated to be called before or 
after the determination by the Court of Appeal on the 
Section 7(1) invalidity issue?
A: Well, it -- it would be proposed to be called after. We 
would seek a ruling on -- on the appeal. If the appeal was 
allowed, the Crown's appeal was allowed then -- then it 
wouldn't be -- wouldn't be an issue. If it was not allowed, 
then we'd want an opportunity to -- to demonstrate to the 
Court that -- that the concerns raise: by Justice Acton in 
her initial order had been -- had been addressed.
Q: And so that was in your mind and clearly stated within 
the application that you submitted for -- before Justice 
O'Leary, is that correct?
A: The alternative remedies were, yes.
Q: Okay.
A: I don't state it in my -- in my brief as such, but 
certainly the -- the -- as I recall when Mr. Iovinelli and I 
appeared before Justice O'Leary, I did address with him that 
-- that we did want the order to -- to last until further 
order of the Court and not simply until the determination of 
the appeal and --
Q: So when you appeared before Justice O'Leary on November 
28th, 2001, at that point you had the status of appellant?
A: Yes.
Q: Okay. Now, on November 28, 2001 when you appeared before 
Justice O'Leary, did you have a discussion with Justice 
O'Leary about the alternate remedies you were seeking?
A: I -- I recall I did have. We -- I told him that -- that 
the relief mentioned in my brief was until -- was until the 
determination of the appeal, but our order stated that it 
was -- proposed order was that it was to last until further 
order of the Court. And that was acceptable to the Court and 
to Mr. Iovinelli.
Q: Did you explain to Justice O'Leary why you wanted the 
wording, Until further order of this Honourable Court?
A: I can't recall if I did and I can't recall him what -- I 
can't recall whether he specifically asked why.
Q: Did Mr. Iovinelli have any objection to the wording -- to 
extend the order until further order of this Honourable 
Court?
A: No. No. I -- I prepared the order that's exhibited to my 
affidavit beforehand and as I recall, I obtained -- he 
indicated to Justice O'Leary that he was in agreement with 
the order and he signed the -- his approval as to form and 
content of the order at that -- at that point in time. It 
was not a contested application in -- in any sense of the 
word.
Q: And Justice O'Leary then approved that order?
A: Yes.
Q: Was there any discussion with counsel prior to that 
hearing as to the wording of the order, and why you wanted 
the order worded that way?
A: I recall I -- I discussed it with Mr. Iovinelli just 
prior to court commencing as to the wording of the order. 
And I -- I do believe I --- I raised that concern with him 
in terms of -- in terms of wanting -- wanting the Court to 
determine -- determine the present status of the regulatory 
scheme should the appeal be dismissed, rather than -- rather 
than reverting to what was in existence at the time Mr. 
Krieger was charged.
Q: Now, I understand that Justice Acton had issued a one-
year period under which there had been a suspension of the 
declaration of invalidity, but also a personal exemption for 
the accused Krieger --
A: Yes.
Q: -- is that correct?
A: Yes.
Q: Now, at the time that you made your application before 
Justice O'Leary, was Mr. Krieger's personal exemption close 
to running out?
A: The order of Justice Acton was to run for a period of --
period of one year and I believe the -- I believe the 
interpretation that we had was that Mr. Krieger's personal 
exemption wouldn't necessarily run out in the one year, but 
the striking down or the suspension of the order striking 
down Section 7(1) would -- would run out unless there were 
steps taken to address the concerns in Justice Acton's 
judgment.
Q: So why was it then that when the order was made before 
Justice O'Leary, that he also stayed indefinitely the 
personal exemption of Mr. Krieger?
A: Until further order of the Court?
Q: Yes.
A: Yes. We would -- in my mind the two were linked in -- in 
the appeal. If the appeal was successful, then of course his 
personal exemption would -- we would ask the Court to -- to 
cancel his personal -- personal exemption.
Q: So would Mr. Iovinelli also have been a party interested 
in appearing before Justice O'Leary to make an application 
to extend his client's personal exemption indefinitely?
A: That was never discussed with Mr. Iovinelli. My 
interpretation of Justice Acton's order was that the --was 
that Mr. Krieger's exemption would have -- would have 
continued beyond the year, although that's not specifically 
stated in her -- in her judgment. Her judgment states that -
- that simply her hope would be --and I don't know if I have 
her judgment here. It's towards the end of the -- end of the 
judgment. It was her hope that the Government would take 
steps to -- to rectify the legal access problem prior to the 
year.
Q: Actually, I'll just ask you to read se -- paragraph 57 of 
her --
A: Yes.
Q: -- judgment which is the last paragraph of her judgment 
into the record, please.
A: With respect to Mr. Krieger, I am satisfied on the 
evidence of the Crown's expert witness and Mr. Krieger 
himself that it would be inhumane not to grant Mr. Krieger 
an exemption from the prohibition in Section 7(1) of the 
CDSA during the period of the suspended invalidity in order 
that he may cultivate cannabis marijuana for his own medical 
use. Pursuant to Section 24(1) of the Charter, I would stay 
the proceedings against him under Section 7(1).
So her judgment there appears to talk about during the 
period -- yes it does, during the period of -- of the 
suspension. 
Q: So as appellant, you were not necessarily the only party 
that could have applied for an extension of the suspension 
period?
A: I suppose Mr. Iovinelli could very well have as well. 
Q: Thank you. And to your knowledge, has anyone applied to 
set aside the suspension order in question?
A: Not to my knowledge.
MS. OZEM: Thank you, those are my questions Mr. Couper. 
A: Thank you.
THE COURT: Anything arising?
THE ACCUSED: May I ask a couple of questions?
THE COURT: Well, if they are related to what -- the 
questions that Ms. Ozem asked, yes. 

*The Accused Re-cross-examines the Witness
Q: THE ACCUSED: You -- indicated that Ms. Ozem contacted you 
and you gave her the original information, including the 
mistaken date of April the -- or March the 18th instead of 
December the 4th.
A: Well, I -- I didn't give her the -- the date. That was 
just a mistake in -- in the way that -- the way the 
affidavit was drafted that I unfortunately didn't catch when 
I -- when I looked at it.
Q: Where would you -- she was not in attendance at the -- at 
the hearing, so how would she have known about the 
application if you hadn't told her? Would she have got it 
from someplace else? Like, had you told Mr. Frankel, for 
example, who could have informed Ms. Ozem? Where --where 
would she have known -- got the date of the application 
being made on March the 18th if she didn't get it from you?
A: I -- I can't speak for the --
MS. OZEM: He's asking the witness to speculate, My Lady.
Q: THE ACCUSED: I just find it hard to understand that both 
could make the same mistake in affidavits without there 
being some connection. But --
A: The memorandum of judgment was filed on March 18th.
Q: Yes.
A: The memorandum, if you look at it, states that.
Q: Yes, but there was no hearing at that time so obviously 
no application at that time?
A: No.
Q: And no mention whatsoever in the memorandum of this 
application that was raised on December the 4th to -- to 
have the stay lifted. The stay that, in our opinion, expired 
because it was an interlocutory remedy to carry you over to 
the appeal, and when the appeal didn't - was over, then the 
stay was over.
A: The memorandum is silent on that question, yes.
Q: Yes. Thank you, Mr. Couper.
THE COURT: Thank you, Mr. Couper. You --
A: Thank you, My Lady.
THE COURT: -- are excused.
A: Good day.
(WITNESS STANDS DOWN)

THE COURT: Now, as I understand it, one further witness has 
been subpoenaed, Mr. Iovinelli. We need to deal with that at 
some stage. It seems to me that it might be helpful if we 
did not deal with that now, but that instead we heard the 
rest of the argument and then -- I just do not want to lose 
sight of that, Mr. Cornelssen. Could you please remember to 
deal with that before we close today if I forget?
THE ACCUSED: Yes.
THE COURT: Okay. Continue with your argument.

*Argument
THE ACCUSED: With the Court's permission, I would like to 
read a short piece from the judgment of Judge Rogin On --
THE COURT: From --
THE ACCUSED: -- Ontario Superior Court, Judge Rogin.
THE COURT: Okay, which case is this?
THE ACCUSED: This was in the --in the J.P. case.
THE COURT: Okay. If you could pro -- if you could indicate 
which page you are referring to or which paragraph number 
you are referring to, it would be very helpful.
THE ACCUSED: This -- this would be in my materials entitled 
Applicant's Final Written Submissions.
THE COURT: Okay, which --
THE ACCUSED: Filed October the 26th.
THE COURT: Let me find your document. Okay, and what are you 
referring to?
THE ACCUSED:    I'm on page 5 of 9 of the --of the Rogin 
case. And it talks about -- in about the middle of the page 
he's talking about R v. McIntosh.
THE COURT: Sorry, I am -- I think I do not understand where 
you are.
THE ACCUSED: Can I see if you have a --
THE COURT: Page 5 of your materials?
THE ACCUSED: We're on page 5 of 9 of the --of the case at 
the back of it.
THE COURT: At the - - oh, I am sorry, at the back. Okay. And 
I am sorry, in about the middle of the page --
THE ACCUSED: About the middle of the page, number 14, R v. 
McIntosh. 
THE COURT: I see, and this is a quotation from -- oh, I am 
sorry, this is the complete case of Regina v. J.P.
THE ACCUSED: Yes.
THE COURT: Okay. So --
THE ACCUSED: Yes. Now, he's quoting a Judge Larmer -- Lamer 
who has this to say. 
"As stated above, the overriding principle governing the 
interpretation of penal provisions is that ambiguity should 
be resolved in a manner most favourable to accused persons. 
Moreover, in choosing between two possible interpretations, 
a compelling consideration must be given to the effect to 
the interpretation most consistent with the terms of -- I 
think there's a typo in this one - when freedom is at stake, 
clarity and certainty are of fundamental importance."
And that's my point. Your Honour. When freedom is at stake 
as it is for myself and everyone else arrested under this, 
the law should be clear and unambiguous; should certainly be 
written down someplace. Now, the only evidence that we have 
that this stay is still in effect are the affidavits of -- 
of a couple of Crown lawyers. Well, one Crown lawyer, one 
defence lawyer but still part of the system and hardly 
disinterested parties. If we were to be found correct that 
the law has been dead since 2000 -- December of 2002, the 
Crown would have to expunge the records of over 100,000 
people. Would have to apologize, would have to pay fines 
back, it would just be a tremendous thing. So they would be 
highly motivated to do whatever it would take not to have to 
do this.
And if -- it seems to me that if I -- if I'm to be convicted 
under these laws, the very least I have the right to is just 
to be able to be shown where Parliament has enacted them, 
where they are in effect. Where they are written down and 
they are not because the memorandum of March the 11th makes 
no mention whatsoever of the stay of effect being extended. 
It says the law is struck down, period.
Now, if that's the case then I would ask the Court what can 
we do to produce the order from that appellant court. Now, I 
know it's in Ms. Ozem's submissions that she has written to 
the -- to the Court and she has asked for transcripts of the 
tape recordings, and they have responded to her that they 
are for the judges and the judges only. 
But I need them as well, I need to know that this actually 
happened as they say it happened, otherwise I'm being 
convicted simply on affidavits that are proven to be 
mistaken, both of them on a pretty important point like what 
was the date. If they can mistaken on that, maybe they're 
mistaken on something else.
THE COURT: You are not going to be convicted of anything 
today, Mr. Cornelssen.
THE ACCUSED: No, no, I'm not but --
THE COURT: You are well aware of that, I am sure.
THE ACCUSED: -- there's 100,000 people out there and 80,000 
of them have been convicted under these laws because they 
didn't know that it was dead.
My original intention was to have a constitutional challenge 
based on hemp biomass fuel and I spent last summer out in 
Stettler talking to farmers and trying to organize this. I 
offered to donate 20 acres of farmland that I have there for 
the construction of a plant. That was the direction I was 
going in, and then I discovered that this had actually been 
struck down already. The law is already dead. No point in me 
trying to kill a law that's already dead.
And if it's not dead, then the Court -- someone should be 
able to produce an order from Judges Costigan and Lovecchio 
and Wittmann that says, yes, this is what happened. This was 
our ruling on it. And if they aren't willing to put that on 
paper, then why should it be give any credence? 
And to me it seems very plain that an interlocutory order is 
one that's granted up until the appeal, and that it was not 
Judge Acton's intention that her one-year suspension still 
be in effect almost five years later. I don't believe it was 
O'Leary's intention that his six-month extension until the 
appeal should still be living onward and onward and never 
dies. If the Charter of Rights and Freedoms is the supreme 
law of the land, then how can it be held down by a never-
ending, never-expiring interlocutory order that goes on just 
for as long as the Crown needs it to go. 
And other than that, sir -- or ma'am, to ask one more time, 
could someone please produce the order of the Court where it 
says that this is what has happened. Because I do not 
believe that the evidence of affidavits from lawyers is near 
sufficient for what's at stake, which is 1,000 people every 
week getting arrested under these laws and lives irreparably 
damaged. 
We should at least have the -- have it written down like 
Rogin said in the case that he quoted; It's --there should 
be no ambiguity. If people are going to be incarcerated the 
law should be there, it should be enacted by Parliament. It 
should be written down for everybody to read. There should 
be no doubt, and there is doubt in this case. And I ask that 
being the accused, that I be given the benefit of that doubt 
because there's nothing that I can do to produce that order. 
That is up to the Crown and the Court to produce the order, 
and until I see it, how am I to know that this law's in 
effect? Because what I do read is that Judge Acton struck it 
down, that the Appeal Court of Alberta upheld her decision 
to strike it down and that the Supreme Court of Canada 
dismissed the Crown's appeal to appeal that. There's no 
evidence other than this mysterious stay that never dies. 
It's like if the supreme law of the land, the Charter of 
Rights and Freedoms was Superman and the stay were 
kryptonite and it renders Superman helpless. The supreme law 
of the land can't do a thing because of this stay that never 
ends. 
And the normal way of doing things, as I understand it, is 
that Mr. Couper being the Crown should have asked the Court, 
should have -- he should have been the one making the 
application. Could we have an extension until the Superior 
Court of Canada can hear this. And in fact, he states that 
this was his intention to make that application and then lo 
and behold, the defence attorney says, May we please lift 
the order that, in my opinion, expired automatically because 
it was an interlocutory order. No need to have it lifted. 
And if the final ruling of the Judges had already been made 
and it was done as he indicates, everybody's getting ready 
to leave and he sticks up his hand, then believe that the 
term is functus officio. 
And I believe that the -- that the definition of that is, is 
that when it's over, the Court has no more authority to deal 
with the matter. So maybe they were playing a joke on our 
lawyer friends and they were saying, Oh, you can't lift 
that. That takes -- that takes three Judges, even though 
Judge O'Leary, one Judge, put it on with no evidence 
whatsoever other than, Well, you haven't had an appeal, so 
I'll give it to you until you appeal or until further order 
of the Court which is perhaps less than the appeal. 
Certainly not more, certainly not forever.
Is there any other example in Canadian law where an 
interlocutory order like that goes on and on and on forever. 
And who -- who can stop it? Can only Krieger take it off? Is 
every Canadian subject to Grant Krieger lifting that stay, 
and because he didn't lift that stay I got arrested, 1,000 
people a week are getting arrested because a private citizen 
doesn't bother to take the time and goes down to apply and 
have the stay lifted. 
It seems to me that's an absurdity, that the supreme law of 
the country being the Charter of Rights and Freedoms should 
reign supreme. And it shouldn't be up to one individual, 
Grant Krieger, to set everything right for everybody. And it 
shouldn't be up to -- to me to have to wonder if the law is 
still in effect or not. It should be a clear order from the 
Court, Yes, we granted it and then they would have to 
explain where they got the authority to grant it after it's 
functus officio, it's over and they have no more authority 
on that. I think they were playing a joke on our lawyer 
friends. I don't see what else it could be because if they 
weren't, they would have written it up in their memorandum 
because they know how important it is. They know how 
important it is.
So I can't assume that the Judges are forgetful and they 
forgot to do it or that they're negligent and just didn't 
put it in. I have to think that they knew they didn't have 
to lift the suspension, because the suspension expired with 
the order because it was granted by Judge O'Leary as a 
temporary interlocutory order to carry them over until the 
appeal was heard.
And once the appeal was heard, Crown was no longer the 
applicant, had no right to ask for an extension. The Judges 
were functus officio, had no more authority to grant the 
extension and were amazed by the fact that the defence 
lawyer even asked for it and decided in a moment to -- to 
say, We can't let that, you need three Judges --and -- and 
evidence. What kind of evidence would this be that they 
would need? 
Does Krieger have -- have to do the whole case all over 
again? Like, what possible evidence could they be asking 
for, and why it would take a full hearing of three Judges to 
lift an interlocutory order put on with no evidence by one 
Judge. And if they, in fact, did do this amazing thing the I 
would like to see an order in writing where this is stated 
that this is what they did. And if they're not able to 
produce it, then I would ask for the -- the judgment of the 
Court to give myself as the accused, the one facing 
incarceration, the benefit of the doubt if the law is in any 
way ambiguous and it's certainly ambiguous in this case and 
if it's not ambiguous and it's dead, because the only 
written thing says it's been struck down. Judge Acton, Court 
of Appeal, Supreme Court of Canada struck down. None of them 
say anything about a continuing suspension. And with that, 
madam, I think I would -- I would conclude my arguments and 
perhaps a chance to respond to Ms. Ozem if she has arguments 
to make.
THE COURT: Thank you, Mr. Cornelssen. Ms. Ozem.
MS. OZEM: My Lady, the accused gives only half the equation 
that has to be considered here. Certainly, whether the 
suspension is still extant is one of the issues that's 
before the Court for consideration, however, that issue may 
very well be moot. The other matter that is before the Court 
for consideration is whether by enacting the MMAR within the 
time period allotted by the suspension order given by Acton, 
J., the legislation was saved. 
It is the contention of the Crown that when Acton, J. 
allowed for a suspension period of one year and under the 
wording under which she said Section 7(1) was declared 
invalid and gave a period for which the Government could 
correct the problem, when the Government enacted the MMAR 
within that one-year period the Government corrected the 
problem. 
The legislation is then deemed valid until a court of 
competent jurisdiction rules otherwise. The only way a court 
of competent jurisdiction can rule otherwise is if someone 
constitutionally challenges the validity of the Government's 
response to that legislation. Then it is put into question 
that -- that the response has been invalid. Then do we only 
get into the issue as to whether or not the suspension is 
still extant. But my friend has jumped to part two before 
he's even addressed part one. And in Alberta there has been 
no constitutional challenge to the enacting of the MMAR 
since the Krieger case, until last week in fact. 
That was the very first time the -- there has been a 
challenge -- a written challenge to the Crown with respect 
to the MMAR. It was only just filed, it has never been 
litigated. So to this date, there has been no successful 
constitutional challenge to the MMAR in the Province of 
Alberta.
So this is where, first of all, the accused's argument 
fails. He seems to bypass the notion that once -- that when 
a Judge sus -- declares a piece of legislation invalid, they 
can do it under Section 52 only to the extent of the 
inconsistency. The legislation doesn't disappear, it's 
invalid only to the extent of the inconsistency. Once the 
Government rectifies the inconsistency within the time 
period allotted, there is a deemed presumption of validity 
until the Court directs otherwise.
Now, there was a situation that arose in Ontario in the case 
of Hitzig where the Government did enact the MMAR. The Court 
of Appeal didn't feel that it was fully enacted to their 
satisfaction. They struck down five provisions within the 
MMAR and found that by striking down five out of 71 
provisions within the MMAR, it made the rest of Section 4 
constitutional.
Consequently, what happened is when the suspension period 
expired, any charges that fell between the expiry of that 
suspension period and from the time that they corrected the 
MMAR themselves, charges within that time period were 
considered unconstitutional and ended up being stayed. 
But any charges from that time onward, October 7th, 2003 
were constitutionally valid and in force and effect, and 
this is the problem that Mr. Cornelssen is running into.
So I think might I'll -- what I might do is just maybe go 
start back with the beginning and some -- sort of some basic 
concepts. 
I appreciate that Your Honour or Your Ladyship has read the 
materials and so I'll try to be as brief as I can with 
respect to the issues here. But I'll deal with first of all 
his issue regarding the suspension, and then I'll deal with 
the fact that the law is still valid within the Province of 
Alberta.
First of all as applicant, the onus of proof is on him. He 
is the one who has to establish that the suspension no 
longer exists in the Province of Alberta. He has been trying 
to shift that onus to the Crown. That is not my burden to 
establish, it is his burden to establish that that 
suspension no longer exists.
What we have before this Court is an order from Justice 
O'Leary of the Court of Appeal that says that the effect of 
the declaration of invalidity of Acton, J. has been stayed 
until further order of this Honourable Court.
In order to discharge that burden, he has to show this Court 
an order that says that O'Leary, J.A.'s order has been 
vacated. 
He has not done that. He has not shown any evidence 
whatsoever that Justice O'Leary's order has been vacated. 
In fact, the only evidence that is before this Court is that 
Justice O'Leary's order is still extant.
The -- we have two affidavits before you that say that -- 
specifically that there were discussions that took place 
before the application. That when Mr. Couper went before 
Justice O'Leary, he went before Justice O'Leary as 
appellant. Within the body of his application he asked that 
it be granted until the appeal was resolved. 
He had discussions with members of the Department who said, 
We may need to go beyond that point because facts have 
changed since the date that Mr. Krieger was charged. 
The MMAR had since been enacted. The Flinflon (phonetic) 
Project had since come up, facts had changed since that 
time. 
So, in the event that we lose the appeal, we want to be able 
to call a hearing to show that the suspension should not be 
lifted.
So Mr. Couper approached Mr. Iovinelli, they had a 
discussion about the specific wording of the order. When 
they approached Mr. Justice O'Leary they pointed out the 
differences between the two wordings, i.e., until the 
expiration of the appeal or the resolution of the appeal. 
Or, until further order of the Court, which would be sine 
die. 
Mr. Justice O'Leary chose sine die. He didn't have a problem 
with that. Defence counsel didn't have a problem with that 
and I would suggest there's a very good reason defence 
counsel wouldn't have had a problem with that, and it's 
because his client's personal exemption was also tied into 
that one-year suspension period. 
Had that one-year suspension period expired before any 
appeal was heard or in the event that that appeal was lost, 
his client would have lost his personal exemption as well.
So it isn't only the Crown that could have appealed, gone 
before Justice O'Leary and made that application, it was 
also Mr. Iovinelli that could have done that as well. 
But that still bespeaks the fact that there's no order 
saying that O'Leary, J.A.'s order was vacated.
And in fact, the Crown went one step further, it produced 
two affidavits to say that when the appeal before the Court 
of Appeal was actually heard, that after the decision was 
rendered from the Bench Mr. Iovinelli applied to have the 
suspension lifted. According to his affidavit, his 
application was dismissed. 
So when Mr. Cornelssen says they're mirror images of one 
another, he is mistaken. Mr. Iovinelli says the application 
was dismissed. Mr. Couper says the Court of Appeal declined 
to hear it. They are both ad edam when they said the Court 
of Appeal would not deal with the matter in the absence of 
having an application where there was a full hearing with 
evidence being called. 
And that was a very prudent thing for the Court of Appeal to 
have done because they would have to have the full set of 
circumstances as to why you would lift a suspension on -- on 
a very important piece of legislation that is very regularly 
used to control the production of marijuana in this 
province.
So they did not deliberately lift that suspension order, and 
he can't prove that they did and it's his burden, not mine. 
It's his. He has not shown that that suspension order was 
lifted.
He then says that the Supreme Court of Canada dismissed the 
appeal. That isn't what happened in the Supreme Court of 
Canada. Application was made by the Crown for leave to 
appeal to the Supreme Court of Canada and leave to appeal 
was denied. The Supreme Court of Canada never heard the 
appeal on the merits, it never got that far. 
And in fact, there was a one-liner issued from the Supreme 
Court of Canada in it's usual fashion, Leave to appeal is 
dismissed. They never dealt with the issue of the suspension 
so the suspension is still extant.
And as Mr. Couper so rightly puts it, for all intents and 
purposes he still is the appellant in the original Krieger 
case because that one issue is still alive. 
It has never been dealt with to this date. So that deals 
with the suspension issue but again, that only kicks into 
place whe -- if -- if we totally ignore the other issue 
which is, the Government did respond by enacting the MMAR in 
time.
Now, Mr. Cornelssen may argue that the Court of Appeal in 
Ontario didn't particularly like the MMAR as originally 
drafted. That's irrelevant. The Court of Appeal of Ontario 
has no jurisdiction over the courts in Alberta. 
That -- while their decisions may be persuasive, that did 
not in any way shape how we administer justice in this 
province. 
Section 7(1) and Section 4(1) were still alive and well 
after the Hitzig judgments or the Parker judgments were 
granted and delivered from the Benches in that province.
So the fact that the MMAR were never challenged here and 
have never been successfully challenged here leaves him in a 
bind, because the legislation is presumptively valid until 
such time as it is successfully constitutionally challenged.
And in Mr. Cornelssen's case, he's got an even further 
problem because in Hitzig they didn't like how the 
Government had dealt with the MMAR up until the time that 
Hitzig had been charged. But Mr. Cornelssen's offence date 
is August 31st, 2004, yet the MMAR had been amended several 
times since. 
So the only way that Mr. Cornelssen can effectively 
challenge and say that this law in this province is not in 
effect, is to constitutionally challenge Section 1 and the 
provisions of the MMAR up until the date of his offence, 
which he has not done. No one's done that. 
And until it's done, that law's still valid in this 
province.
So he runs into that -- that hiccup right off the path, and 
unless he can get by that hiccup he doesn't even get to the 
part of his argument as to whether or not the suspension is 
still extant.
I have provided to Your Ladyship copious materials with 
respect to various issues Mr. Cornelssen -- despite the fact 
that he says he's limiting this to Section 7, has provided 
voluminous materials as to whether or not Section 4 is still 
extant in Alberta and that sort of thing. I don't know if 
Your Ladyship wants me to get into any of that.
I've provided voluminous materials from the Court of Appeal 
in Ontario which shows that certainly in Ontario as of 
October 7, 2003, that Section 4 is still alive and well and 
in force and effect. 
That on that same day, Mr. Cornelssen's ghost writer, Mr. 
Turmel lost his own appeal by attempting to get the word 
marijuana struck from Schedule II, saying that since, you 
know, the suspension period had passed in Parker that 
marijuana was lost for all intents and purposes within 
Schedule II of the CDSA. He lost that appeal, in fact he 
tried to appeal that to the Supreme Court of Canada and 
never filed his materials in time. And -- and they deemed 
his appeal as abandoned and dismissed that for want of 
following through.
Mr. Turmel also as a civil intervener, was one of the 
parties in the Hitzig app -- in the Hitzig appeal. Mr. 
Turmel lost his application in the Hitzig appeal and again 
attempted to appeal to the Supreme Court of Canada, and 
again never filed his materials in time and provided no 
reason for the delay. And again, the Supreme Court of Canada 
denied him leave to appeal and considered his appeal as 
abandoned.
They did not provide the companion cases which I have he has 
been arguing vociferously that the Court of Appeal of 
Ontario has jurisdiction over this province, which is why I 
went on at some length about stare decisis which I normally 
would not insult a Court of Queen's Bench Justice with 
doing, but he has been referring to it relentlessly 
throughout his materials.
The -- ironically while he is suggesting that the Court of 
Appeal in Parker and to one extent in Hitzig, should have 
binding power in this province, he completely came out on 
the very same day from the Court of Appeal in Ontario, and 
believes that you should ignore those entirely. His view is, 
is that if something happened to Section 4 or to Section 7, 
the only way that the Crown can proceed and legitimately 
prosecute people would have been to re-enact the section. 
That, in fact, is not the case. The Court of fact, where 
he'd been producing lower court decisions for you, they've 
all been specifically overruled by the Court of Appeal. He 
then produced Justice Rogin's decision which was the 
specifically overruled and it was done so for proper 
reasons.
In -- both Judges failed to appreciate that in 
constitutional interpretation it is Section 52(1) of the 
Constitution Act that is implied, not the Interpretation Act 
or Re-enactment Provisions. The difference is, is that 
Section 52 states right within the body of the section that 
the Constitution is the supreme law of Canada, not the 
Interpretation Act. The Constitution is. 
And Section 52 states that the -- that the law is invalid 
only to the extent of the inconsistency. It doesn't wipe out 
the entirety of the legislation unless the entirety of the 
legislation is inconsistent with the Constitution. Only that 
tiny aspect of it that may be inconsistent. And if that 
inconsistency can be remedied, then it becomes valid again. 
It does not require re-enactment, it does not require Appeal 
of Ontario was very specific on that point. Parliament does 
not have to re-enact it, it can be re-enacted by legislation 
and also that it doesn't have to be re-enacted period. In 
fact, that it could never have been repealed in the first 
place. They were very clear on that and I would note that 
Mr. Cornelssen has not provided any appellate authority from 
any jurisdiction that contradicts the decision in J.P. He's 
not even provided Superior Court judgments from any other 
jurisdiction that contradict the Court of Appeal in J.P. 
other than the one decision that was overturned. So the -- 
the only Superior Court decision he has provided in his most 
recent materials a decision again which is not binding on 
this Court. It's a Provincial Court decision of Judge Chen 
from the B --from the British Columbia Provincial Court.
Judge Chen has gone through extensive work reproducing many 
of the cases in which this argument that this is an offence 
unknown to the law has been put before the Court. And to 
Judge Chen's credit, has done considerable background and 
gone through the Judges -- or the judgments that have been 
issued basically from coast to coast. And it -- and has 
pointed out that the judgments go both ways at the 
Provincial Court level.
What happened is and where Mr. Cornelssen has a problem with 
this particular decision, (a) it's a Provincial Court 
decision, it's not binding. (b) It was issued on September 
Ontario Court of Appeal came out. So it's pre-Court of 
Appeal cases.
And the problem is, is that at that point the only Superior 
Court judgment that was really out for circulation was the 
we all know that that has since been overturned.
He also applied at that time the Superior Court decision in 
Hitzig, and that was changed by the Court of Appeal. So 
there are numerous factual situations which make the Chen 
decision wrong. First of all, at paragraph 56:
"Implicit in the question of whether the MMAR could save 
Section 4 of the Controlled Drugs and Substances Act, I am 
unable to agree with the conclusion of Stanfield, P.C.J. 
that Section 4(1) remains valid legislation until a Court 
decides that the MMAR does not save it. 
I adopt the reasons in Parker as Section 4 was declared 
invalid as it relates to marijuana. The legislation is 
invalid unless Section 4 is re-enacted." 
And that's where he made his mistake. He followed the -- our 
-- Ontario Court of Justice decision in J.P. which was 
overturned. So that was actually an error. The Court of 
Appeal said that reasoning was in error, it didn't have to 
be re-enacted. And then he made a further error on paragraph 
66. He states if he's wrong in his other analyses and it is 
possible for regulations actually to halt the declaration of 
invalidity, he agrees with the decision in Hitzig, which at 
this point is the Superior Court one, that the MMAR were 
inadequate for the purpose. However, Hitzig from the Court 
of Appeal had not come out where they struck down five 
provisions and said, Now it is constitutional and in force 
and effect. So he wasn't aware of that decision either.
And what really hurts him actually is contained right in the 
very body of his own decision, and I -- I am most impressed 
actually with the fairness of Judge Chen because he states 
right in his own decision at paragraph 61: Wilson, J. sets 
out the situations in which it is permissible to depart from 
the requirements of judicial comity.
Those situations are described there as follows: (a) 
Subsequent decisions have affected the validity of the 
impugned judgment. Here we have at least three Court of 
Appeal judgments that have been issued since that were not 
around when Chen was issued. (b) It is demonstrated that 
some binding authority in case law or some other relevant 
statute was not considered.
Well, clearly we have highly persuasive authority that was 
never considered, and we also have relevant sta --statutes 
that were not considered in that significant amendments to 
the MMAR were enacted in December of 2003, again in 2004 and 
again in 2005 which were not before him in September of 
2003. So that again really negates the effectiveness of this 
particular judgment. 
Thirdly, the relevant statute that was not considered in his 
judgment was Section 52 of the Constitution Act. He applied 
the reasoning that the Court of Appeal found to be 
incorrect, and didn't apply Section 52 which is what the 
these other Judges didn't apply. So right within his own 
decisions -- his own decision, he indicates where his own 
weaknesses lay because he certainly wouldn't have been aware 
of the decisions that were going to be coming out in about 
one month's time.
So with respect to those issues, unless you have any further 
questions regarding that, the only other comments I would 
make essentially would be relating to whether or not Mr. 
Iovinelli still needs to be produced.
THE COURT: Okay, well I will deal with that question 
separately. I want to hear if Mr. Cornelssen has any 
argument in response. Mr. Cornelssen, I want to caution you. 
I do not need to hear your argument again. I simply want to 
hear your response to anything that arose as a consequence 
of what Ms. Ozem had to say that you have not had a chance 
to deal with before,
THE ACCUSED: However, it'll be tough to do that, madam. One 
point that she made was that Ontario Courts do not have an 
influence on what happens in -- here in Alberta and yet it's 
our position that when a court acts constitutionally in 
striking down a bad law and that is upheld by the Court of 
Appeal of that province then, yes, that should be followed.
THE COURT: It should be?
THE ACCUSED: It sho -- it should apply across the country if 
it's held up by the -- by the Court of Appeal, so that would 
apply in the Krieger case in other places and in the Parker 
appeal case in -- in Alberta. And as proof of that, the 
Crown dropped charges against 4,000 people when this law was 
considered to be invalid.
What they should have done, they should also have expunged 
the criminal records of another 100,000 people that were 
convicted during that period, but they did drop the charges 
against 4,000 people and it was all across country, here in 
Alberta too. 
Now, they wouldn't have done that just out of kindness, they 
must have done it because they thought that they were 
required to do it.
Ms. Ozem makes the point that the MMAR corrected the 
deficiency and yet it was proven that it did not, which was 
why the 4,000 cases were dropped. 
Now, the Hitzig case apparently heals the MMAR by cutting 
off five of the cancers that makes it unconstitutional, and 
it seems to me though that that's like trying to cure a dead 
person. 
Because if the law has been declared dead because they did 
not change the law within the period of the time of the 
Parker case, it was so ruled by the Court of Appeal, that 
then it has to be re-enacted before it can be cured. Because 
otherwise, it's like amputating body parts off a dead body, 
that doesn't bring the body back to life. And even if it 
did, two months after they did that, Health Canada added 
back two of the cancers so it would have been 
unconstitutional again even if it had been deemed 
constitutional for that period. Ms. Ozem makes several 
references to my -- my coach and mentor in this matter 
because as I mentioned earlier, my original intention was a 
constitutional challenge on energy. To Mr. John Turmel that 
I would introduce to the Court as being present, and if we 
get together again or even for this afternoon if it's 
possible if we have 20 minutes, I would ask permission of 
the Court as Mr. Turmel is a friend of the Court could act 
as my agent and respond to what Ms. Ozem has raised.
Now, if that's not possible, this is why I wanted to 
simplify things in the beginning, go with Section 7(1) in 
Alberta since stare decisis has been mentioned by Ms. Ozem. 
And to me it seems to be very simple, that a Judge in 
Alberta is required to follow the ruling of the Appeal Court 
of Appeal, of the higher Court of Alberta. 
And the higher Court of Alberta in their written decision 
have upheld Judge Acton's order that 7(1) is struck down and 
they make no mention whatsoever of the stay being extended.
And I would think that before this matter is solved, it's 
going to have to go back up again in front of the Court of 
Appeal so we can see what their thinking really is because 
there seems to be a great deal of confusion about that. They 
did not write down anything about the stay still being in 
effect.
So to me it would seem that if they could produce an order 
stating that the -- that this happened the way that it was 
said that it would happen, or else it should go back to the 
Court of Appeal under stare decisis and that this Court 
should decide to go on what is written and a written 
memorandum, rather than any affidavits which contained 
mistakes in the original affidavit which are not from 
disinterested parties. Should rather go with the memorandum 
of the three Judges of the Court of Appeal, that the law is 
struck down. And if the Crown wishes to appeal it again to 
the Court of Appeal, then that would be their choice.
THE COURT: Thank you. Now, the last issue that we need to 
deal with is the subpoena to Mr. Iovinelli. Mr. Cornelssen, 
may I assume that you still wish to have Mr. Iovinelli 
appear.
THE ACCUSED: I believe so, yes, madam.
THE COURT: Okay, tell me why.
THE ACCUSED: Well, because identical mistakes were made in 
the affidavit and I don't see how identical mistakes could 
be make -- made in the affidavit unless there was collusion 
between the witnesses. And since the affidavits come from 
the Crown, I would have to think that it really shouldn't be 
the position of the Crown to write out affidavits for its 
witnesses and say, Here, sign this, this is the way it was. 
On March 18th, you made an application, it came down. Now, 
I'm not saying that the application wasn't made, but I'm 
saying there's no evidence of it. It certainly wasn't made 
on March the 18th. Had it been, it would have been an ex -- 
an explanation for why there wasn't any written thing 
because they didn't have time to write it up. If it was made 
on December the 4th, then why isn't that extension, why 
isn't that most important application of Iovinelli's to have 
a non-existent suspension lifted? And I say non-existent 
because it was interlocutory and it expired when the appeal 
was over. It was functus officio at that time, that the 
Judges did not have the power to extend the stay --
THE COURT: I understand your argument --
THE ACCUSED: Yes. 
THE COURT: -- but my question is related particularly to Mr. 
Iovinelli. Having questioned Mr. Couper, why is it that you 
think you still need to question Mr. Iovinelli when, as you 
say, the two -- the two affidavits are very similar?
THE ACCUSED: Well, I'm wondering how they're very similar, 
unless the witness are coordinated. And it's my 
understanding and I get my legal education from, you know, 
reading Perry Mason novels. Witnesses -- an affidavit of a 
witness, that's what the witnesses saw, that's not what the 
Crown says, Here, say this, say this, say this because it 
backs their case. And then when they feel, oh, March 18th, 
that doesn't look very good, well then we'll have to change 
it back to this, and then they both discover the same 
mistake at the same time. It just seems like it's not 
totally arm's length from that.
And as to whether it's -- it's -- you know, I hate to put 
them to the inconvenience, but it's also an inconvenience -- 
if Mr. Iovinelli is the only person who can apply to have 
that suspension lifted if it's still in effect, then I would 
like to ask him why he hasn't applied to have it lifted and 
thereby, you know, save it for all Canadians, not just for 
his client. And if he's doing it only because he'd rather 
get them off one at a time and collect a fee every time, 
that's, you know, quite disappointing. That's why people 
tell lawyer jokes, you know.
So I would like to -- to talk to Mr. Iovinelli and there is 
another counsel that was present at the time, and I don't 
have the name in front of me right at the moment, but it 
seems to me maybe they could shed some light on it. If there 
were three counsel there --
THE COURT: Well, there has been no subpoena issued in 
respect to any third party, and that issue is not before me 
today, I assure you.
THE ACCUSED: Yeah. Now, I would put it this way, I would not 
insist upon it, madam, and -- but if the Court feels that 
there is valid argument being made here, and that they would 
need further convincing as far as the likelihood or the 
unlikelihood that this has come down the way that it's been 
presented in the affidavits, then we should do it. If they 
can see that if it actually happened that way, if the Judges 
meant that it be taken seriously, they would have written it 
up in the memorandum and they did not write it up in the 
memorandum. They make no mention of the suspension still 
being in effect. Judge Acton does, Judge O'Leary does, but 
the Appeal Court of Appeal do not. It is like it expired 
when the appeal expired.
And we have affidavit evidence saying different but we don't 
have it in their written record and I believe if they meant 
it to be the law of the land, it would be in the written 
record. Thank you.
THE COURT: Thank you.
MS. OZEM: Just very briefly. Had the Court of Appeal vacated 
the order of O'Leary, J.A. they would have stated it in 
their order and they didn't. 
So Mr. Cornelssen's argument can also be used in the 
converse and again, the onus is on him. So in that sense he 
still runs into his same problem.
With respect to the production of Iovinelli, again I return 
to my original argument that I put before Your Ladyship. It 
-- perhaps the wisest option may be to have a ruling 
rendered with respect to the substantive arguments put 
before the Court. In the event that Your Ladyship agrees 
with the Crown's position that by enacting the MMAR within 
the time allotment given by Acton, J., that the legislation 
is presumptively valid in the absence of a successful 
constitutional challenge, then it makes the issue of whether 
the suspension is extant moot and we really don't need to 
get into it, and Mr. Iovinelli's presence doesn't really 
need to be determined. So that may be one issue to deal with 
on that -- just from a practical purpose in dealing with it.
With respect to Mr. Cornelssen's argument about collusion 
between the witnesses, Mr. Couper was very clear in terms of 
his evidence on the stand, that the information contained in 
the affidavit had been given by him to me. He received a 
draft, he made a change with respect to the date. He 
overlooked the date that had been in there, hence the second 
affidavit before the Court. But he was extremely clear that 
he had had no discussion with Iovinelli before he executed 
the affidavit and that he never saw the draft affidavit of 
Iovinelli before he executed his affidavit. So there's no 
evidence currently before this Court of any collusion 
whatsoever.
Mr. Cornelssen says that one of the questions he wants to 
ask Mr. Iovinelli is, you know, if this suspension still 
exists. You know, why haven't you bothered to lift it.
THE COURT: That would be irrelevant and I would not permit 
that question to be asked.
MS. OZEM: Well, we also have the additional problem of 
solicitor/client privilege. He's basically trying to get 
into conversations that may have taken place between Mr. 
Iovinelli and his client, and that may very well be 
privileged communications.
THE ACCUSED: I would have one question, Your Honour. As a 
stakeholder, and by stakeholder I mean that I've been 
arrested under these laws and I face whatever penalties 
these laws carry with them, is that could I apply to have 
the suspension lifted? Could anyone else other than Grant 
Krieger apply to have the suspension lifted?
THE COURT: You made that point in your --in your written 
materials as well, I think. I am certainly well aware that 
that is your question.
THE ACCUSED: So if that could be included in your decision 
when it comes, because although I -- we feel that the 
suspension died December the 4th, it was still alive --
THE COURT: You do not need to repeat your argument.
THE ACCUSED: Okay.
THE COURT: I am sometimes a quick study, I get it the first 
time.
THE ACCUSED: Okay, thank you.
THE COURT: I am going to have to take some time to make a 
decision, I think I can make it today. I am going to ask for 
-- I do not want to try to -- I am going to try not to keep 
the clerk into overtime, which means that I should try to 
give it before 4:30. Madam Clerk, if I was to start at 20 
after 4 and if  as a consequence you were a few minutes late 
leaving, would that inconvenience you terribly?
THE COURT CLERK: Not at all.
THE COURT: Okay, that would be wonderful. Why do we not 
start at 20 past 4, I think it is going to take me that 
long.
(ADJOURNMENT)

*Reasons for Judgment

THE COURT: This is an application by the accused Mr. 
Cornelssen to quash an Indictment on the basis that it does 
not disclose offences known to law. 
In argument, Mr. Cornelssen confined his application only to 
the charge laid under Section 7(1) of the Controlled Drugs 
and Substances Act, or as it is more commonly known, the 
CDSA, and I will therefore confine my decision to that 
charge. The decisions at various court levels and in the 
course of proceeding in the case of Regina v. Krieger were 
argued both by Mr. Cornelssen and counsel for the Crown, and 
I will briefly review this case as a consequence. 
The Trial Judge in Krieger, Justice Acton, struck down 
Section 7(1) of the CDSA in her decision but stayed the 
effect of that decision for one year. By Order of Justice 
O'Leary of the Court of Appeal of Alberta which he made on 
November 28th, 2001, that stay was extended until further 
order of the Court of Appeal.
Subsequent to the trial level decision in Krieger, the 
Government of Canada passed the Marijuana Medical Access 
Regulations which have been referred to by both parties here 
as the MMAR. These were originally passed on June 14th, 2001 
and have been amended from time to time since then. These 
regulations permit possession and, in some cases, production 
of marijuana by individuals or, in some limited cases, their 
designates who meet the medical criteria established in the 
MMAR.
There has been no successful challenge in Alberta of the 
MMAR. There has been a challenge or challenges in other 
jurisdictions in Canada, notably in Ontario. Ontario 
decisions, including Ontario Court of Appeal decisions are 
persuasive for me, but not binding upon me as an Alberta 
Judge.
Mr. Cornelssen argues that the effect of Justice Acton's 
decision in Krieger was effectively to repeal Section 7(1). 
He refers to it as being dead as a consequence. He offers 
Superior Court and Provincial Court authority for this 
proposition. 
In my view, these authorities have been overruled by the 
Ontario Court of Appeal and are therefore no longer good 
law.
In my view, a Court has no jurisdiction to repeal a statute. 
Only Parliament has that jurisdiction. At most, under 
Section 52 of the Constitution Act, a Court can determine 
that a provision of a statute is of no force and effect if 
it offends the Constitution. That, in my view, is what 
Justice Acton did in making her decision in Krieger. By 
bringing forward the MMAR, the Government of Canada altered 
the scope of Section 7(1). Therefore, the question now is 
whether the prohibition against cultivation of marijuana as 
modified by the MMAR is Constitutional. If it is, then 
Section 7(1) is in force. That decision has not yet been 
made in Alberta and is not a decision that is before me 
today. 
I am not hearing a Constitutional challenge to Section 7(1), 
I am hearing a motion to quash. Section 7(1), in my view, 
was in full force and effect as of the date of the charges 
against Mr. Cornelssen and remains so. Therefore, in my 
view, the application to quash should be dismissed and I 
therefore dismiss it. Because of the view I take of the 
effect of the passage of the MMAR, I need not address the 
question of whether the stay remains operational in Mr. 
Krieger's matter. 
As Mr. Iovinelli's evidence only relates to what application 
was made before the Court of Appeal panel that heard Krieger 
and what the Court of Appeal's decision was regarding the 
stay, it cannot affect my decision. As a consequence, in my 
view, there is no need to inconvenience Mr. Iovinelli by 
requiring him to attend, and I therefore quash as well the 
subpoena. That is my decision. Is there anything further I 
need to deal with today?

MS. OZEM: One housekeeping matter, My Lady. Part of the 
original notice of motion and part of the very recently 
filed notice of motion was an application by Mr. Cornelssen 
to bring in a tape recorder, pursuant to a provision of the 
Ontario Court of Justice Act.
In my original materials I indicated that the Ontario Courts 
of Justice Act has no authority over the Courts in Alberta, 
and no grounds were provided by the accused for bringing in 
a tape recorder. The court -- the court clerks record the 
proceedings of the court as a matter of record, so unless 
there are any further issues he wishes to address with 
respect to that issue, I don't know if you need to hear from 
me further.
THE COURT: That -- that was not argued before me at all 
today. I had not understood that that was part of your 
application today, Mr. Cornelssen. It is 4:30 and I wonder 
if you want to -- to try arguing that now or if you would 
prefer just to leave that for another day?
THE ACCUSED: I think we will leave that for another day.
THE COURT: Okay.
THE ACCUSED: Not much to record now.
THE COURT: Sorry?
THE ACCUSED: There's not much left to record now.
THE COURT: I do not think so. Thank you.
MS. OZEM: Thank you, My Lady. The return date then for Mr. 
Cornelssen is November 25th for pre-trial conference. That 
is also his deadline for filing his Constitutional 
challenge.
THE COURT: Mr. Cornelssen, I am sure you are aware of that.
THE ACCUSED: I understood this.
THE COURT: Madam clerk, there is a pile of materials here. 
It is completely a mess and not sorted at all, it does need 
to be carefully sorted.
THE COURT CLERK: Yes, My Lady.
THE COURT: There are two packages there that need to be 
dealt with separately.
THE COURT CLERK: Yes, My Lady.
PROCEEDINGS CONCLUDED
Certificate of Record
I, S. Smithies, certify that this recording is a record of 
the oral evidence of proceedings in the Court of Queen's 
Bench, held in courtroom 311, at Edmonton, Alberta, on the 
16th day of November, 2005, and I was in charge of the 
sound-recording machine.