Update
Time running out for medical pot 'refugee'
The Globe and Mail
By SHANNON KARI
Monday, January 9, 2006
VANCOUVER -- Medical marijuana "refugee" Steve Kubby, his wife, Michele, and their two daughters are scheduled to be deported to the United States this week unless they can delay a removal order at a Federal Court of Canada hearing this morning.
The family is asking for an emergency stay of the order by Immigration Canada, arguing that Mr. Kubby's health will suffer if he is deported and has to serve a 120-day jail sentence in California without marijuana to deal with his adrenal cancer. They have been in Canada since 2001 when Mr. Kubby was convicted of possession of a minute amount of mescaline and psilocin. Immigration Canada rejects Mr. Kubby's claim for refugee status and says there is no risk to the health of the Kamloops resident if he is deported to the United States.
The deportation would be another legal defeat for medical-marijuana advocates and supporters of legalizing the possession of cannabis.
Court rulings in recent years have upheld the criminal prohibitions against possession of marijuana as well as the system that is in place for people to use the drug for medical reasons. However, some people say this system is flawed and makes it difficult to acquire their medicine. Michele Kubby, who represents the family in court, remains optimistic about the last-ditch appeal. "If you never give up, you will never lose hope," said Ms. Kubby, who said her husband should not be deported for a misdemeanour. "You have to be convicted of a serious offence" to be deported, Ms. Kubby said.
She said her husband has been targeted by U.S. authorities, because of his pro-marijuana profile and his run for governor of California in 1998 as leader of the Libertarian Party. "They have been keeping their eye on him for a long time," Ms. Kubby said.
As part of their legal battle, Ms. Kubby challenged the validity of the Marijuana Medical Access Regulations (MMAR), the scheme that governs how people can possess marijuana for medical reasons.
She contends it is constitutionally unsound.
The British Columbia Court of Appeal ruled against Ms. Kubby last month and said she failed to present evidence "her own Charter rights regarding marijuana usage were likely to be infringed." The court also found support for the MMAR in an Ontario Court of Appeal ruling in 2003 that upheld the overall legislation, but struck down some of the sections as being unconstitutional.
The Ontario court was critical of a section that permitted registered producers to grow marijuana for only one person. It described the MMAR rules as constituting "significant state interference with the human dignity of those who need marijuana for medical purposes." It ordered Health Canada to allow registered growers to distribute the drug to more than one person, so users did not have to rely on the black market.
Health Canada repealed the section, but a few months later, it quietly re-enacted the exact same restriction on producers. An "analysis statement" issued with the new regulations referred to the court's ruling as "untenable" and said it would result in Canada violating its international treaty obligations to restrict the distribution of marijuana.
The medical regulations also permit designated users to grow their own marijuana or purchase it from the federal government's supply, produced by Prairie Plant Systems in Manitoba.
About 75 kilograms of marijuana was sold to medical users in 2005. "We can easily meet current demands," said Health Canada spokesman Christopher Williams.
But Michelle Rainey, vice-president of the B.C. Marijuana Party, contests the belief that there is a sufficient supply for the 1,118 people in Canada who are currently authorized to possess marijuana for medical use.
"There is not enough, not at all," said Ms. Rainey who along with Marc Emery and Greg Williams is facing extradition to the U.S. for selling cannabis seeds on-line.
Ms. Rainey, who suffers from Crohn's disease, said there are other problems with the government supply, including the quality of its marijuana. "It is like prescription drugs, not every strain works," said Ms. Rainey. She noted that the government marijuana is about $200 for 30 grams, which is "just under street prices."
It took Ms. Rainey seven years to be granted an exemption for medical use.
Ms. Rainey said another obstacle for those interested in using marijuana for medical purposes is the Canadian Medical Association. She said it discourages doctors from giving the necessary approval so their patients can acquire marijuana.
Ruth Collins-Nakai, president of the association, said "we are not taking a pro or con position. What the CMA is opposed to, is the current MMAR because we don't have the scientific evidence about the risks or benefits [of marijuana use]," Dr. Collins-Nakai said.
She said doctors who approve the use of marijuana may be at legal risk if a patient suffers complications.
In addition to complaints about the procedures in place for medical marijuana users, it seems unlikely that criminal sanctions for simple possession of marijuana will be eased in the near future.
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