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Monday, January 2, 2006

Woman cannot grow pot for husband: appeal court

We should pay decision some mind as incoming Parliament promises new marijuana law

Ian Mulgrew
Vancouver Sun

Former California gubernatorial candidate Steve Kubby and his wife Michele got a Scrooge-like Christmas gift from the B.C. Court of Appeal which unequivocally dismissed her attempt to have the country's medical marijuana regime declared unconstitutional.

The decision got substantially overlooked, however, because the family who has lived in B.C. since 2001 also has been ordered out of Canada by Jan. 12.

But we should pay it some mind -- especially since the incoming Parliament promises a new pot law, either one from the Conservatives with much tougher penalties, or a new one from the Liberals touted as moving us towards decriminalization for possession and meaner treatment for producers and traffickers.

Back in July, Federal Court Judge Sandra Simpson rejected the couple's complaints about an Immigration and Refugee Appeal Board decision to deny them sanctuary.

And on Nov. 22, the Canadian Border Services Agency turned down their 11th-hour request for protection saying: "It has been determined that you would not be subject to . . . risk to life...if returned to your country."

The Kubbys and their two daughters, who live in the Interior at Sun Peaks Village, are making a last-ditch plea to the Federal Court Jan. 9.

Kubby fears returning to the U.S. because he may be imprisoned and denied the marijuana he consumes to ease the symptoms he suffers from a rare adrenal cancer.

"How can I be denied my medicine and returned to the U.S.?" he asked.

Four years ago, Kubby left California after he was arrested ostensibly for growing marijuana -- in the eyes of many, he is a victim of a split in the legal authority and a clash of political opinion on medicinal pot between the U.S. federal and state government.

A Libertarian Party candidate for governor in 1998, Kubby was a licensed state medical marijuana patient but fell afoul of the federal Drug Enforcement Administration, which does not recognize the California Compassionate Use Act.

While cleared on the pot charges, Kubby was convicted for possession of mescaline and psilocybin -- minute quantities of hallucinogens police reputedly extracted from a few peyote cacti and a magic mushroom found during the search of the family's Placer County home.

Since arriving in Canada, Kubby has applied for and received a medical exemption to possess and grow marijuana from Health Canada but his wife's application was turned down.

As a result, the eloquent and poised Mrs. Kubby went to B.C. Supreme Court representing herself and argued the medical marijuana regime was unconstitutional. The court this spring dismissed her petition, prompting this appeal.

There has been significant debate over the status of the marijuana law in light of two significant Ontario court decisions questioning the constitutionality of provisions related to the drug's medicinal use.

And our appeal court in recent rulings has indicated it is no friend of the criminal prohibition of cannabis, so Kubby got as sympathetic a forum as you can find. Yet her point of view was pronounced wrong.

Parliament has every right to criminalize the possession of pot if it wants to, emphasized Justice Anne Rowles in a written decision supported by Justices Richard Low and Peter Lowry.

Most importantly, along the way, Rowles weighed the legal effect of two important Ontario decisions.

In the first, called Parker, the Ontario Court of Appeal in 2000 declared invalid the section of the Controlled Drugs and Substances Act that placed a total ban on the possession of marijuana because it did not provide for medical access to the drug.

But the court also said that ruling was to be held in abeyance for one year so Ottawa could fix the problem.

Rowles said the Medical Marijuana Access Regulations that came into force July 1, 2001 remedied the constitutional deficiency.

She dismissed Kubby's suggestion the law could be resurrected only via legislative amendment.

In the second decision, called Hitzig, the same appellate court in 2003 determined certain provisions of those regulations were constitutionally flawed (such as the need for the support of two specialists to obtain an exemption), but upheld the others.

Rowles was unconvinced that case had relevance either.

"Contrary to the appellant's submissions...the MMA Regs and s. 4(1) of the CDS Act [today] constitute valid legislation," she concluded.

Citing the landmark December 2003 rulings by the high court on three unrelated pot cases -- involving two men from B.C. and one from Ontario -- in which the criminal prohibition was upheld, she added:
"Appellate courts are bound by the decisions of the Supreme Court of Canada."

Contact: sunletters@png.canwest.com

vancouversun



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