WOMAN CANNOT GROW POT FOR HUSBAND: APPEAL COURT

We Should Pay Decision Some Mind As Incoming Parliament Promises New
Marijuana Law

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."