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RPD
File #: VA2-01374, VA2-01722
VA2-01723, VA2-01724
Claimant(s): Steven Wynn KUBBY, Michele Renee KUBBY,
Brooke Kona KUBBY, Crystal Bay KUBBY
Date(s) of Hearing: March 5, 2003, March 6, 2003, March
7, 2003, March 10, 2003, April 8, 2003, April 10, 2003, April 11, 2003,
April 15, 2003, April 16, 2003
Place (s) of Hearing: Vancouver, B.C.
Date of Decision: November 17, 2003
Panel: Paulah Dauns
Claimant's Counsel: Nil
Refugee Protection Officer: Marilyn Babcock
Designated Representative: Michele Renee KUBBY for Brooke
Kona KUBBY & Crystal Bay KUBBY
Minister's Counsel: G. Starr and S. Buckoll
TABLE OF CONTENTS
THE GROUNDS
- MR. KUBBY'S CLAIM
- Convention Refugee (IRPA Section 96)
- Person in Need of Protection (IRPA Section
97)
- MS. KUBBY AND THE MINORS' CLAIMS
THE ISSUES
THE WITNESSES
SUMMARY OF EVIDENCE ADDUCED
MR. KUBBY'S MEDICAL HISTORY
MR. KUBBY'S NEED FOR MARIHUANA
MARIHUANA LEGISLATION IN THE UNITED
STATES
CONVENTION REFUGEE CLAIM PURSUANT
TO IRPA Section 96
- Definition and Burden of Proof
- Nature of Mr. Kubby's Convention
- Subjective Fear
CREDIBILITY
PROSECUTION vs.
PERSECUTION
- Introduction
- Fair and Independent Judicial System
- Laws of General Application
- Jury Trial
- Right to Counsel
- Independence and Impartiality of the Presiding
Judge
- Alleged Risk of Federal Prosecution
- Fugitive From Justice
- Summary
AVAILABILITY OF STATE PROTECTION
CLAIM PURSUANT TO IRPA Section
97
- Definition and Burden of Proof
- Nature of Mr. Kubby's Risk to Life Claim
- Lawful Sanctions
INTERNAL FLIGHT ALTERNATIVE
CLAIMS OF MICHELE KUBBY AND THE MINOR
CLAIMANTS
SUMMARY
DETERMINATION
- Steven Wynn KUBBY, aged 56 years, Michele Renee KUBBY, aged 37 years,
and their two minor children, Brooke Kona KUBBY, aged 7 years, and Crystal
Bay KUBBY, aged 3 years, are all citizens of the United States (US).
US Passports were
produced for all of the claimants;1
accordingly, identity is not an issue in their claims. I am satisfied
that the four claimants are all citizens of the US
and of no other country.
- The claimants were not represented by counsel at the hearing, although
they had the benefit of counsel's assistance in the preparation of their
Personal Information Forms (PIFs).2
Ms. Kubby was designated the representative
for the two minor children.
THE GROUNDS
- All four claimants are seeking refugee protection on several grounds.
I MR. KUBBY'S CLAIM
(a) Convention
Refugee (IRPA Section 96)
- Mr. Kubby is claiming to be
a Convention refugee3
on the basis of his political opinion and his membership in a particular
social group: patients who use cannabis medically (also referred to
herein as "medical marihuana patients").
96. A Convention refugee is a person who, by
reason of a well founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or
political opinion,
(a) is outside each of their countries
of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries;
or
(b) not having a country of nationality,
is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
(b) Person in Need of
Protection (IRPA Section 97)
- Mr. Kubby also claims to be
a "person in need of protection" because he alleges that he would be
jailed and denied the use of marihuana, which would put his life at
risk, if he returned to the United States.
- Section 97 provides:4
97. (1) A person in need of protection is a person
in Canada whose removal to their country or countries of nationality
or, if they do not have a country of nationality, their country of
former habitual residence, would subject them personally
(a) to a danger, believed on substantial
grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or to
a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that
risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person
in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent or incidental
to lawful sanctions, unless imposed in disregard of accepted international
standards, and
(iv) the risk is not caused by the inability
of that country to provide adequate health or medical care.
- Finally, he asserts that he fears a risk of torture pursuant to section
97(1)(a).
II Ms.
Kubby and the Minors’ Claims
- Ms. Kubby claims she is a Convention
refugee on the basis that she is a member of a particular social group:
Mr. Kubby's family. She claims,
on behalf of the minor children, that they too are Convention refugees
on the basis they are members of Mr. Kubby's family. She asserts that she and their two minor children are
at risk of harm as set out in section 97.
THE ISSUES
- The determinative issues of the claim are first, whether the claimants
have a subjective fear of persecution, specifically in the light of
their delay in making their claims. Second, whether, if a subjective
fear is present, that fear is objectively well founded. Under this
heading I will be canvassing the issues of state protection and prosecution
versus persecution. If I am satisfied that the claimants have a well
founded fear of persecution or are at risk of harm as set out in section
97 of IRPA, in Placer County in the State of California, I
will canvass whether there is an Internal Flight Alternative (IFA) to
another part of the United States.
THE WITNESSES
- The Board heard from a number of witnesses including journalist Patrick
McCartney; California Superior Court Judge James P. Gray; marihuana
activist Angel McCleary Raich; author Edward Rosenthal; British Columbia
cancer specialist Dr. Joseph Michael
Connors; California deputy district attorney Christopher Cattran; journalist
Peter Edmund Brady; California defence attorney William Gary Panzer;
Oregon Medical Marijuana Program manager, Mary S. Leverette and Washington
prosecuting attorney (Chief of Staff) Daniel T. Satterberg. We also
heard evidence from Mr. and Ms.
Kubby. The claim was heard over the course of nine hearing days, between
March 5, 2003 and April 16, 2003. Two conferences pursuant to Rule
205
were held, at which procedural and administrative issues were discussed.
- Both the Minister's counsel and the claimants in their submissions
used a similar Table of Contents to comment on the evidence. For reasons
of consistency, I have followed generally the same format in these reasons
for my decision. The analysis which follows, is regarding Mr. Kubby's claim. I will analyse the claims of his family immediately
thereafter.
SUMMARY OF THE EVIDENCE ADDUCED
- According to the evidence,6
Mr. Kubby was able to smoke marihuana
in California without incident for more than sixteen years (between
the early 1980's when he began to use marihuana and when he was arrested
in 1999), long before the passage of the Compassionate Use Act
(CUA)7
in 1996.
- Following a tip (an anonymous letter) on July 2, 1998,8
an investigation was launched into what the California state authorities
believed was a marihuana grow operation in Placer County, at the Kubby
residence. The letter alleged Mr. Kubby was growing approximately fifteen hundred plants and selling large
crops of marihuana. Since cultivation remained a state offence following
the enactment of the CUA, and following receipt of this letter,
law enforcement in Placer County began an investigation of Mr. Kubby.9
- Mr. Kubby allegedly retained
the services of Robert Raich, Attorney-at-law who arranged for Mr. Kubby to be deputised as an agent of the City of Oakland, as a medical
marihuana agent entitled to handle or possess medical marihuana for
medical patients.10
We do not have documentary evidence showing that Mr. Kubby was in fact deputised, however I accept that he was. Mr. Kubby's standard of living appeared to police and prosecutors to exceed
the Kubby family's apparent sources of income.11
- A search warrant was approved by a judge and executed at the Kubby
residence. The claimants allege the information provided to the judge
who ordered the warrant, was incorrect and a fabrication. The trial
judge made a pre-trial ruling with respect to the validity of the search
warrant and Mr. Kubby's motion
to suppress the search warrant. The motion to suppress was dismissed.12
The evidence obtained by the search warrant was considered as part of
the claimant's criminal trial, in Placer County, California. Mr. Kubby appealed the trial judge's dismissal of his motion to suppress
to the California Court of Appeal.13
- In January 1999, state police and federal DEA executed a search warrant14
at Mr. Kubby's residence and found
a two hundred and sixty-five plant indoor marihuana grow operation.
Mr. Kubby was subsequently arrested,
released on his own recognisance15
and together with his wife, charged with thirteen felony offences16
including cultivating marihuana, possession of marihuana for sale, conspiracy
to cultivate marihuana, possession of concentrated cannabis, possession
of mescaline, possession of psilocyn, possession of injection/ingestion
device, and unauthorised possession of hypodermic needle or syringe.
- According to California deputy district attorney Christopher Cattran,
the Federal Drug Enforcement Administration (DEA) assisted with the
search warrants due to "manpower issues." A videotape of the execution
of the warrant and seizure of evidence was filed in these proceedings.17
Mr. Cattran testified that he
was told that the DEA was not interested in pursuing the Kubby case
federally, and that they would defer to the state prosecution.18
- Two hundred and sixty-five marihuana plants was far in excess of medical
use based upon a police officer's expertise, and California State Prosecutor
Christopher Cattran approved prosecution in the case.19
Contained within the search warrant was the fact that Mr. Kubby had some medical condition. That was taken into consideration
as well; however it was determined that the amount was far in excess
of a medical use.20
Very few medical users can grow a sustainable supply without
growing 20, 30 or 40 plants minimum. That is a typical garden. Twenty,
30, 40 plants. Sophisticated growers grow 100 or 200 if they're experimenting
with varieties and so forth …21
- While in Canada pending the outcome of his refugee claim, Health Canada
has given Mr. Kubby permission
to grow one hundred and seventeen plants for medical purposes.22
Mr. Cattran testified that the
standard required in Placer Country to prosecute a defendant in a state
criminal Court, would be:
whether or not… the amount possessed, either in plants
or off of plants, is reasonably related… to the person's then
existing current medical condition.23
- Mr. and Ms.
Kubby were subsequently tried before a jury in the fall of 2000. Because
this was a state, and not a federal prosecution, Mr. Kubby successfully avoided conviction on the marihuana related charges,
by raising the defence of "medical necessity"24
provided for in the Mower25
decision and the Compassionate Use Act. Eleven of the jurors
accepted Mr. Kubby's medical marihuana
defence and voted in favour of acquittal. However, the judge was required
to declare a mistrial because one juror held out for conviction.26
The prosecutors subsequently informed the Court that they would not
be seeking to retry Mr. Kubby
on the marihuana related charges.27
The effect of the prosecution's position resulted, in practical terms,
in the end of the State's prosecution, at least on the marihuana charges.
- However, with respect to the non-marihuana related charges, the jury
convicted Mr. Kubby of possession
of mescaline and psilocyn (counts 5 and 6). This despite Mr. Kubby's assertion that his possession of mescaline was for research
for his book: "The Politics of Consciousness,” and was therefore
“protected”. He said he was told by someone that he could possess an
“unusable amount” of mescaline, pursuant to the Religious Restoration
Act of 1995.28
He alleged that the psilocyn was found in a guest room and
he knew nothing about it or where it came from. The jury did not accept
these explanations, and convicted him of the two non-marihuana drug
offences.
- Ms. Kubby was acquitted of all
charges.29
- Following his conviction on December 21, 2000, Mr. Kubby's matter was adjourned until March 2001 for sentencing.30
A pre-sentence report was prepared and a protracted sentencing hearing
was conducted before Judge Cosgrove, who sentenced Mr. Kubby to 120 days of house arrest, a fine, and three years probation.31
- The judge said, according to Ms.
Kubby, that "jail is not a place for [my husband]. "32
Possession of mescaline is a felony (the Canadian equivalent of an indictable
offence) whereas possession of psilocyn is a "wobbler" (the
Canadian equivalent of a hybrid offence). The judge chose to convict
on the basis of a misdemeanour on the psilocyn as he was entitled
to do, but erroneously reduced the conviction for possession of mescaline
to a misdemeanour as well.
- The Court directed that Mr. Kubby, who alleges that he has a medical need for marihuana, could use
marihuana during his period of house arrest and probation, in accordance
with the Compassionate Use Act (CUA).33
I think it useful to set out the full text of the Act.
The Compassionate Use Act of 1996
[Proposition 215]
Section 1. Section 11362.5 is added to the Health and Safety Code,
to read:
11362.5. (a) This section shall be known and may be cited as the
Compassionate Use Act of 1996.
(b) (1) The people of the State of California
hereby find and declare that the purposes of the Compassionate Use
Act of 1996 are as follows:
(A) To ensure that seriously ill Californians
have the right to obtain and use marijuana for medical purposes
where that medical use is deemed appropriate and has been recommended
by a physician who has determined that the person's health would
benefit from the use of marijuana in the treatment of cancer, anorexia,
AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or
any other illness for which marijuana provides relief.
(B) To ensure that patients and their primary
caregivers who obtain and use marijuana for medical purposes upon
the recommendation of a physician are not subject to criminal prosecution
or sanction.
(C) To encourage the federal and state governments
to implement a plan to provide for the safe and affordable distribution
of marijuana to all patients in medical need of marijuana.
(2) Nothing in this section shall be construed to supersede legislation
prohibiting persons from engaging in conduct that endangers others,
nor to condone the diversion of marijuana for nonmedical purposes.
(c) Notwithstanding any other provision of
law, no physician in this state shall be punished, or denied any
right or privilege, for having recommended marijuana to a patient
for medical purposes.
(d) Section 11357, relating to the possession
of marijuana, and Section 11358, relating to the cultivation of
marijuana, shall not apply to a patient, or to a patient's primary
caregiver, who possesses or cultivates marijuana for the personal
medical purposes of the patient upon the written or oral recommendation
or approval of a physician.
(e) For the purposes of this section, ‘‘primary
caregiver" means the individual designated by the person exempted
under this section who has consistently assumed responsibility for
the housing, health, or safety of that person.
Section 2. If any provision of this measure or the application thereof
to any person or circumstance is held invalid, that invalidity shall
not affect other provisions or applications of the measure that can
be given effect without the invalid provision or application, and
to this end the provisions of this measure are severable.
- Following sentencing, the prosecutor moved for dismissal of the marihuana
charges and appealed the judge's reduction of the outstanding charges
to misdemeanours from felonies. The prosecutor's appeal was successful
and the charge regarding possession of mescaline reverted to a felony.34
- In the meantime, Mr. Kubby tried
to make arrangements35
to serve his period of house arrest or electronically monitored home
detention in San Francisco36
rather than in Placer County because "there is a more tolerant attitude
and there are people that support [him] there. "37
Both Placer County and San Francisco County approved Mr. Kubby for electronic monitoring in San Francisco County and set out
the terms of the "house arrest".38
His period of house arrest was to begin on April 10, 2001.39
- Mr. Kubby filed a cross appeal
to the prosecution's appeal, on the grounds the search of his home was
"wrongful. " The California Appeals Court held that the cross appeal
could not be heard so long as Mr. Kubby was a "fugitive".40
The Appeals Court determined Mr. Kubby became a fugitive when he knowingly fled the jurisdiction before
he completed his sentence.
One who with knowledge that he is being sought pursuant
to court process in a criminal action, absents himself or flees is
a fugitive from justice. Accordingly, the defendant is, without question,
a fugitive from justice. As such, and based on the rationale of the
foregoing cases, he has forfeited his right to appeal his jail term
while he flaunts it.41
- In April 2001, Mr. Kubby filed
additional materials seeking to amend his sentence to provide for treatment
(pursuant to Proposition 36)42
rather than punishment. Although he had agreed to the terms of probation,
he was no longer prepared to comply with the Probation Order.43
Mr. Kubby's motion was originally
set to be heard on April 6, 2001, but it was later adjourned to April
27, 2001. Mr. Kubby's "surrender
date," the date on which he was to surrender himself to the Placer County
Jail to begin serving his period in custody, either under house arrest
or in jail, was extended to May 11, 2001.
- A hearing was held to deal with Mr. Kubby's request that he be permitted to serve the time in jail rather
than house arrest and probation. He felt that if he could have access
to cannabis while in jail, this would be a better outcome than serving
his time at home and being on probation for three years. He felt it
would be too difficult to find a home to rent to serve his sentence.
His family had by now moved to Canada to pursue business opportunities
under NAFTA.44
He claimed to no longer have a residence in the US,
even though he was only admitted to Canada temporarily. He objected
to the three-year probation order because it permitted searches of his
person, home and vehicle. He thought this would be subject to abuse
by probation and law enforcement officials. His application for Proposition
36 relief was denied.45
- On April 27, 2001,46
after considering the parties' submissions, Judge Cosgrove decided not
to commute Mr. Kubby's sentence
or terminate his probation.47
However, Judge Cosgrove extended Mr. Kubby's "surrender date" to July 20, 2001, at the request of jail staff
who were awaiting some guidance from the United States Supreme Court
as to what medical care could be provided to Mr. Kubby in jail if he chose to serve his period of custody in jail rather
than under house arrest.
- At the April hearing, a correctional official from the Placer County
jail submitted to the Court that they not be asked to take Mr. Kubby to jail as they were unsure whether they could provide marihuana
in the jail while Mr. Kubby served
his sentence.48
They were awaiting the US
Supreme Court's decision in the Oakland Cannabis Buyers' Cooperative49
case, which they hoped might give them some guidance on the issue.
- Mr. Kubby's "turn in" date of
July 20, 2001 was to be the day that the Electronic Monitoring Program
(EMP) was to be set up. If that failed, he was ordered to turn himself
in to Placer County jail officials.50
Mr. Kubby alleges he was given
the Court's permission to go to Canada in April 2001, and he was not
required to return to California until July 20, 2001. Ms.
Kubby stated that he also received the permission of his probation officer
to leave until July 20, 2001.51
This allegation is inconsistent with the court and probation documents
filed.52
- Mr. Kubby left the United States
at the end of April 2001, and came to Canada before serving his period
of house arrest and probation, while the details of how he would serve
his sentence, were being resolved.
- On July 20, 2001, Mr. Kubby
failed to surrender himself to the Placer County jail as ordered. The
Placer County Probation Department subsequently filed a petition for
revocation of probation based on Mr. Kubby's failure to report to the county jail and on his change of residence
without permission. On July 30, 2001, the judge issued a bench warrant
for Mr. Kubby's arrest as a result
of his violation of probation.53
- To date, Mr. Kubby has neither
paid his fines, nor complied with the terms of his probation. He has
not served his jail sentence.54
Ms. Kubby testified that they were
aware of the date, but made a conscious decision not to return for Mr. Kubby to serve his sentence.55
Mr. Kubby therefore has outstanding
convictions in the United States for one misdemeanour and one felony.
- In general terms, Mr. Kubby
claims that he is a Convention refugee because he was prosecuted by
the local authorities for his political opinion, namely his pro-marihuana
beliefs. He alleges that because he was an outspoken activist, a former
gubernatorial candidate, and well-known medical marihuana user, he was
targeted by law enforcement officials and others.
- In addition to his allegations about the state prosecution, Mr. Kubby also alleges that he is at risk of federal prosecution if he returns
to the United States and that this prosecution would amount to persecution
on the basis of his anti-government political opinion. He submits that
any jail term imposed after a federal prosecution would constitute a
risk to his life in that he would be denied the use of cannabis while
serving his federal sentence, which would result in his death, thereby
constituting cruel and unusual treatment or punishment.
MR. KUBBY'S MEDICAL HISTORY
- Mr. Kubby was diagnosed with
adrenal (pheochromocytoma) cancer in 1968. When he was diagnosed
with the disease, he was given only a few years to live, at most. In
fact, he has lived for thirty-five years since his diagnosis. He believed,
based on a medical diagnosis that he was going to die. After going
through surgery to remove an aggressive tumour, chemotherapy and radiation,
Mr. Kubby turned to non-traditional
means to deal with his illness. He testified that he was "preparing
to die"56
when a friend suggested he try marihuana to see if it helped with his
symptoms. Since he has been in Canada, he has undergone radiation therapy
in addition to the medical use of cannabis.
- Dr. Connors, an expert in the
area of adrenal cancers, and whose curriculum vitae57
suggests is highly knowledgeable in this area of medicine, testified
at the hearing about Mr. Kubby's
medical condition. According to Dr. Connors, Mr. Kubby's tumour releases,
in excess quantities, hormones normally found in the adrenal gland that
are called catecholamines. Excessive levels of catecholamines
in Mr. Kubby's blood cause a range
of separate symptomatic problems including paroxysmal headaches,
sudden flushing or pallor of the skin, palpitations (rapid and irregular
beating of the heart), hypertension (sudden dangerous rise in blood
pressure), excessive sweating, sudden abdominal cramps and diarrhea,
chest pain, shortness of breath, nausea, sudden severe weakness and
anorexia (loss of appetite). If not controlled, Mr. Kubby's symptoms could evolve further to the point where a myocardial
infarction (heart attack) or cerebral vascular accident (stroke) could
occur.58
- As previously mentioned, Mr. Kubby's cancer and related symptoms were treated for more than ten years
by conventional means, including surgery, chemotherapy, radiation and
medications. The life expectancy of a person with pheochromocytoma
is usually three to five years.59
- In the early 1980s, Mr. Kubby
began smoking marihuana and he stopped conventional treatments for his
cancer and related symptoms. Mr. Kubby has not tried any conventional treatments for the symptoms of
his cancer and related symptoms since he began using marihuana, except
for radiation therapy while in Canada. Dr. Connors testified that it may take months to years to fully accomplish
the radiation therapy, but there was no evidence that Mr. Kubby's tumour has responded to this therapy.60
MR. KUBBY'S MEDICAL NEED FOR MARIHUANA
- There is evidence before the Board, that marihuana controls the symptoms
of Mr. Kubby's cancer, including
hypertension.61
In Dr. Connors' opinion, marihuana
continues to be the best treatment available to Mr. Kubby.62
- The evidence is inconclusive as to whether Mr. Kubby's life would be at risk if he could not smoke marihuana to treat
his symptoms, and was forced instead, towards conventional treatments.
The Minister's counsel submits that the length of Mr. Kubby's survival is unusual but not unique. These are the words of Dr. Connors:
He has had a much longer than expected survival with this
kind of medical problem than is usually seen, but it's not unique.
There are recordings of other cases of equally long survivals and
equally slowly progressive disease, as he manifests.63
- Bearing Dr. Connors' opinion
in mind, it cannot therefore be stated with any degree of certainty,
that marihuana is the reason for Mr. Kubby's survival even though it remains the best treatment option at
this time. Mr. Kubby on the other
hand contends that the length of his survival is unique in medical history
and asserts that it was described by California cancer specialist Dr. DeQuattro as "miraculous".64
- These are the words of Dr. DeQuattro:
Faith healers would term Steve's existence these past 10
– 15 years as nothing short of a miracle. In my view, the miracle,
in part, is related to the therapy with marijuana.65
- The Minister raises the point that Mr. Kubby's cancer and symptoms were treated by conventional means for approximately
fifteen years, which is well past the average three to five years' life
expectancy of a person with his type of cancer, suggesting that conventional
means, at least while they were being employed, may have been successful
in keeping him alive.
- The only direct evidence from a doctor as to whether Mr. Kubby's life would be at risk if he could not use marihuana, is from
Dr. Connors. His evidence was
that cannabis has proven more effective than other medications in blocking
the symptoms caused by Mr. Kubby's
cancer. Because of this, Dr. Connors recommended that Mr. Kubby
continue to use cannabis as his treatment to suppress symptoms.66
He also stated the opinion that cannabis is the best treatment available
to Mr. Kubby.67
He did however concede that other medications, such as alpha and beta-blockers,
might be able to control Mr. Kubby's
symptoms but that marihuana appeared to be the best treatment.68
- In 1999, Dr. DeQuattro evaluated
Mr. Kubby's responses to marihuana
therapy and evaluated his future need for treatment. He referred Mr. Kubby to Dr. Weiss, who assessed
Mr. Kubby both before and after
ingesting marihuana. Dr. Weiss
concluded that Mr. Kubby's neuropsychological
profile is "indicative of intact to excellent cognitive functioning.
" She concluded that the "most significant improvement demonstrated
after his consumption of marihuana was reflected in both verbal and
visual recall memory functioning. "69
Dr. Weiss was not called as a
witness in these proceedings to confirm whether Mr. Kubby's use of marihuana assists in his treatment of the cancer. Nor
is it clear she would be capable of rendering such an opinion.
- Unfortunately, Dr. DeQuattro
died in an accident while on vacation in Hawaii70
and could not testify as to the results of his evaluation or provide
a medical opinion about the risk to Mr. Kubby's life if he did not have access to marihuana. Witness McCartney
testified that the email exchange71
between he and Dr. DeQuattro on
July 7, 2001, was the "last word" from Dr. DeQuattro on the subject. In this exchange of emails between Dr. DeQuattro and Mr. McCartney, Dr. DeQuattro was persuaded that the use of marihuana helped Mr. Kubby with his symptoms. There is therefore, some evidence before the
panel that marihuana has been effective in managing Mr. Kubby's symptoms and most likely, extending his life.
- Mr. Kubby filed a journal article72
post-hearing on the anticancer effects of cannabinoids. The document
was admitted on November 13, 2003. While I find the article is relevant
to his claim, it does not raise new issues. The issue to be decided
is not whether marihuana cures adrenal cancer, or any cancer, but whether
it is a useful treatment in Mr. Kubby's case. I have found Dr. Connors' evidence compelling on this point, as stated previously. The
journal article suggests that cannabis "inhibits the growth of tumour
cells in culture and animal models by modulating key cell-signalling
pathways".
- The article cautions:
Regarding effectiveness, cannabinoids exert notable anti-tumour
activity in animal models of cancer, but their possible anti-tumour
effects in humans has not been established.
It concludes that further research is required.
- Given my assessment of his evidence and in the interest of finality,
the Minister was not invited to make submissions on whether this document
should be admitted.
MARIHUANA LEGISLATION IN THE UNITED STATES
- By way of history, it is helpful to understand the issues surrounding
drug legislation and policy in the US,
in order to appreciate what was happening at the time of Mr. Kubby's investigation and prosecution, and at present.
- At that time and currently, there is a public debate in the United
States over whether marihuana has any medical value and whether persons
should be allowed to use marihuana for medical reasons. In California,
Proposition 215, which passed in 1996 by way of a ballot initiative,
was approved by a majority of California voters. The Compassionate
Use Act73
(formerly Proposition 215) provides that the sections of the state
Health and Safety Code prohibiting the possession and cultivation
of marihuana "shall not apply to a patient, or to a patient's primary
caregiver, who possesses or cultivates marihuana for the personal medical
purposes of the patient, upon the written or oral recommendation or
approval of a physician. "74
- The intent of the legislation is clear: to exempt medical marihuana
patients and their caregivers from criminal laws. No amounts were proscribed
by statute nor can amounts be prescribed by a doctor, and there is no
central registry of approved patients in California, as may be found
in other states.75
The fact that limits have not been proscribed has caused problems for
both law enforcement officials and medical marihuana patients. Interpretation
of the statute has been left to a county-by-county guideline system,
which is inconsistent amongst counties. Accordingly, enforcement and
interpretation of who can possess and cultivate marihuana legally, has
created friction.
- Many guidelines have been recommended to ensure patients and caregivers
are growing only what is necessary. For example, Dr. Mikuriya offered the following method for calculating a usable amount
of marihuana:76
Total number of plants (T)
Minus (-) Number of Immature plants (I)
Minus (-) Number of Unsuitable Plants (u)
Equals (=) Useable Number
Times (x) Height in Centimeters (H)
Times (x) Width (W)
Divided by (/) Density (D)
Minus (-) Water (w)
Minus (-) Lower Leaves and Stems (L)
Minus (-) Seeds (S)
Equals (=) Net Usable Amount
Divided by (/) Number of Strains (s)
Equals (=) Actual Usable Amount (A) in grams
Thus: A={[T - (I + U)] x (H x W) / D - (w + L + S)} is (/s)
- The conclusion of Dr. Mikuriya
was that a reasonable number of plants was fourteen. As it is readily
seen by this formula, law enforcement would have had a very difficult
task to establish what was reasonable in the circumstances. Not all
marihuana patients agreed with this formula, and several others are
found in the materials filed. Formulae, such as these did not advance
the debate over what constituted a reasonable number of plants.
- A new Bill was enacted by Governor Davis (California, Democrat) on
October 13, 2003. Bill 420 comes into effect on January 1, 2004.77
It deals with many of the issues raised in this claim regarding cultivation,
possession and transport of medical marihuana. Section 11362.71 permits
a medical marihuana patient to possess a valid identification card and
be immune from arrest and prosecution unless the card was obtained fraudulently.78
- In addition, Section 11362.77 provides that a medical marihuana patient
may possess eight ounces of dried marihuana and up to twelve marihuana
plants. If the patient's doctor recommends that this does not meet
the qualified patient's medical needs, the patient may possess an amount
of marihuana consistent with their needs.79
- The guidelines are intended to provide guidance for when police can
make arrests.80
- Sonoma County has enacted guidelines which allow three pounds and
ninety-nine plants.81
- The US federal
government and the American Medical Association have determined that
marihuana has no currently accepted medical use. Accordingly, the federal
Controlled Substances Act (CSA)82
still prohibits, among other things, the manufacture, distribution and
possession of marihuana. The CSA also provides that marihuana
is a Schedule I drug. Since a Schedule I drug has "no recognised medical
value", there is no defence of "medical necessity" against federal charges
of possession or cultivation of marihuana,83
even where the marihuana is allegedly being grown pursuant to a state
Act such as the Compassionate Use Act.
- The CUA not only permits a person to raise their status as a qualified
patient or caregiver at trial, but also permits a person to
make a motion to set aside the charges against them before trial.
This is significant because there is provision for the avoidance of
a trial if the defendant can demonstrate medical necessity.
- A person is only required to raise a reasonable doubt that they were
in possession of, or cultivating marihuana for their personal medical
purposes. It is not necessary that they prove this by a preponderance
of the evidence. In other words, the defendant need only establish
that the possession of marihuana is for medical reasons, and is using
the substance pursuant to a doctor's recommendation.84
- The CUA directly conflicts with federal law treating marihuana
as a substance with no medical value and high potential for abuse.
Drug busts of legitimate medical marihuana patients and Compassionate
Use Clubs by DEA officials, followed the enactment of the CUA.
Witness Patrick McCartney contended that the "first strategy of law
enforcement was to eliminate a public supply."85
- The Oakland Cannabis Buyers' Cooperative was formed by the city of
Oakland to grow and/or distribute marihuana to approved medical users.
The Federal government charged those who were distributing under the
city's auspices, with federal offences, including distribution and trafficking
in marihuana.
- People like Edward Rosenthal, a witness in this claim, who were "deputised"
by the city of Oakland to grow for third party patients, were not limiting
themselves to possession and/or cultivation for their own personal medical
needs, as Mr. Kubby claimed he
was. Several of the witnesses and US
Court proceedings mentioned throughout this hearing are intertwined
in ways large and small with the federal prosecution of the Oakland
Cannabis Buyers' Cooperative. Mr. Kubby "raised funds for them" in their appeal before the US
Supreme Court;86
Angel McCleary Raich was a buyer from this club, and her husband Robert
Raich (whom Mr. Kubby retained
in order that Mr. Kubby could
likewise be deputised by the City of Oakland), was one of the Co-operative's
attorneys.
- All of the federal prosecutions mentioned were connected with third
party distribution at one point or another. The US
government sued to enjoin the Oakland Cannabis Buyers' Cooperative arguing
it violated the CSA’s prohibitions on distributing and manufacturing
or possessing with intent to distribute a controlled substance. The
Ninth Circuit Court ultimately recognised the “medical necessity” defence
for the Oakland Cannabis Buyers' Cooperative but this decision was appealed
to the US Supreme
Court where it was overturned in May 2001.87
- In evidence is the brief from the Department of Justice to the US
Supreme Court arguing that the Ninth Circuit's decision was "outrageous"
and of "enormous legal importance" since marihuana was a Schedule I
substance with a high potential for abuse for which Congress had imposed
an outright ban.88
- In its decision, the US
Supreme Court held that there was no medical necessity exception to
the CSA's prohibitions on manufacturing and distributing of
marihuana. The Court's decision does not overturn state law but prevents
clubs and cooperatives from dispensing to third parties. Justice Clarence
Thomas, for the majority, held that:
the Controlled Substances Act cannot bear a medical
necessity defense to distributions of marijuana,
we do not find guidance in this avoidance principle.89
[Emphasis added]
- The Court held further:
this case does not call upon the Court to deprive all
such patients [with medical marijuana recommendations] of the benefit
of the necessity defense to federal prosecution, when the case itself
does not involve any such patients.90
[Emphasis in the original]
- Finally, the Court's reversal was on the basis that a "distributor
of marijuana does not have a medical necessity defense under the Controlled
Substances Act. "91
- It is significant to note that the judgment does not deal with simple
possession. Although the United States Supreme Court has spoken on
the issue of clubs' distribution of marihuana for medical purposes,
the debate regarding simple possession has not yet been litigated before
it, nor has the issue of growing for personal medical use been decided
by the Supreme Court.
- In 2001, it was estimated that the number of persons using marihuana
for medical purposes in California under the Compassionate Use Act
ranged from twenty-five thousand to one hundred thousand. It has also
been estimated that there are more than thirty organisations that distribute
or dispense marihuana to persons for medical purposes currently operating
in California.92
- There are other examples of regulations enacted to deal with medical
marihuana patients in the US.
For example, Washington State permits a qualifying patient or designated
primary caregiver to possess a sixty-day supply of marihuana.93
At least nine states have medical marihuana laws in place, where there
has been a removal of criminal penalties.94
Many of the laws enacted in thirty-five states since 1978 are ineffectual
due to the federal government's overarching prohibition.95
The debate has many supporters at all levels of government. A recent
survey96
indicated that eighty percent of Americans think adults should be able
to use marihuana legally for medical purposes and forty-seven percent
say they have tried marihuana at least once. As the debate heated up,
so did the confusion for lawmakers and enforcers. If federal law "trumps"
state law, as we have heard repeatedly in the present case, how do state
law enforcement agencies decide how much marihuana is too much for a
grow operation, even if they are satisfied they are dealing with a bona
fide patient with a doctor's recommendation?
- Each state and county has developed its own guidelines, and some are
more generous than others. What the Mower decision succeeded
in doing was to ensure that those who were legitimately growing marihuana
for their own medical purposes, could raise the medical necessity defence
in a state prosecution. What it could not do, was reach into
federal prosecutions and ensure the same protection and necessity
defence could be raised in Federal Court. The confusion amongst the
medical marihuana community became problematic for prosecutors and triers
of fact.
- The debate between federal and state jurisdiction grew and some claimed
that medical marihuana patients were caught in the middle.97
There were images in the media of those purporting to be legitimate
medical marihuana patients being arrested in a series of drug busts
of Compassionate Use Clubs, in 2002 in California. According to at
least one news article filed,98
the DEA was seen:
dragging paraplegics and cancer patients who were legally
growing pot, according to California statutes, to jail in a federal
building in San Jose, for breaking federal law. "I opened my eyes
to see five federal agents pointing assault rifles at my head. ‘Get
your hands over your head. Get up. Get up. ' I took the respirator
off my face and I explained to them that I'm paralysed, " said Susanne
Pheil, 44 a paraplegic disabled by childhood polio.99
- These images did not enhance the DEA's image with some of the American
public. Mr. Kubby as a self-proclaimed
"med-pot activist," made it a point to communicate his disgust with
federal and state officials when he ran for governor, and whenever he
was in front of a microphone. He testified that he believed he was
under surveillance for a long time, that authorities were aware he was
growing marihuana, and he was targeted because he is an activist.
- However, it is important to be mindful of the fact that despite the
federal CSA not permitting persons to cultivate or possess
marihuana for medical purposes, state laws allowing the medical use
of marihuana still have real value because ninety-nine percent of marihuana
arrests are made by state or local officials who enforce state or local
laws, not federal laws.100
California and Washington have very generous and sympathetic state laws
regarding the medical use of marihuana. In short, favourable state
laws can effectively protect ninety-nine out of one hundred medical
marihuana users who otherwise would have been prosecuted.101
- It is clear that the medical marihuana debate is on-going in the US.
Since the hearing into Mr. Kubby's
claim, several important things have taken place which I feel are significant.
Governor Davis signed Bill 420 which recognises that even prisoners
may require guidelines to ensure medical marihuana is available for
their use.
- This Bill grew out of consultation with patient rights groups, medical
cannabis growers, law enforcement officials, prosecutors and defence
attorneys. Not all of these groups are satisfied with the Bill, however
in the main, it has been lauded as a step forward for medical cannabis
users.
- It is clear that in the seven years since the CUA came into
force the vexing question that has remained unresolved is: How much
marihuana should a patient be allowed to possess and cultivate? It
is not altogether clear whether Bill 420 will answer this question to
the satisfaction of prosecutors or patients. Some medical marihuana
advocates have thrown their weight behind the Bill, while more radical
advocates have objected to any limits being placed on the amount a patient
may possess or cultivate. Mr. Kubby submits there is no guarantee that Bill 420 will have any impact
on his situation. What is clear is that the debate is far from over.102
- In addition, the United States Supreme Court let stand a ruling by
the 9th
Circuit Court of Appeal in Conant v.
Walter, no. 00-17222 (formerly
Conant v. McCaffrey,
Ninth Circuit Court of Appeal), that doctors have a right to recommend
or approve marihuana as treatment for their seriously ill patients.
This ruling has been described as a major victory for medical marihuana
patients. The ruling applies to nine states, including seven that have
decriminalised the use of marihuana for medical purposes. California
is one of the nine states affected.103
- Doctors see this ruling as a favourable outcome which will permit
them to have ‘real conversations' with [their] patients about
medial marihuana as part of their treatment option.104
- In the Conant decision, the Court held:
The evidence supporting the medical use of marijuana does
not prove that it is, in fact, beneficial. There is also much evidence
to the contrary, and the federal defendants may well be right that
marijuana provides no additional benefit over approved prescription
drugs, while carrying a wide variety of serious risks. What matters,
however, is that there is a genuine difference of expert opinion in
the subject, with significant scientific and anecdotal evidence supporting
both points of view.105
- Mr. Kubby is not confident that
Bill 420 will "guarantee" he will be permitted medical cannabis while
in jail. As will be seen below, a "guarantee" is not required.106
CONVENTION REFUGEE CLAIM PURSUANT
TO IRPA Section 96
(a) Definition and Burden
of Proof
- As set out above, section 96 of the Immigration and Refugee Protection
Act requires Mr. Kubby to
establish a well founded fear of persecution.107
- He must establish the facts of his case on a balance of probabilities.
Once the facts are established on a balance of probabilities, he must
show that there is a serious possibility of persecution for a Convention
reason and that there is no state protection available. He must also
establish that he does not have an Internal Flight Alternative (IFA).
He is only required to show that there is "more than a mere possibility"108
he will be persecuted should he return to the United States.
(b) Nature Of Mr. Kubby's Convention Refugee Claim
- Mr. Kubby, is claiming that
he is a Convention refugee because he was prosecuted by state authorities
for his political opinion and further that his prosecution was persecutory.
He alleges that he was targeted for harassment because he is an outspoken
advocate for medical marihuana patients.
- Mr. Kubby claims that his investigation
and prosecution by Placer Country law enforcement officials under the
state Health and Safety Code amounted to persecution. He compares
his treatment by law enforcement in California, to the Nazi treatment
of the Jews. He alleges that the court process is being used as cover
for persecution.
And, you know, during the Nazi regime every Jew got adjudicated,
every trial was heard. You could have listed all these -- all these
same kind of things could have been marshalled for any Jewish person
that was sent to a death camp, because it is the appearance of justice
without any real justice ever intended.109
- He alleges the police harass medical marihuana patients because the
police identify them as "undesirable". It appears to be Mr. Kubby's opinion that law enforcement officials are hiding behind the
courts to harass and persecute those who advocate for medical marihuana
patients.
- In addition to his allegations about the state prosecution, Mr. Kubby also alleges that he is at risk of federal prosecution if he returns
to the United States and that this prosecution would amount to persecution
for his political opinion.
(c) Subjective Fear
- I am satisfied that Mr. Kubby
has a subjective fear of being jailed in the US.
I note that there was a significant delay between Mr. Kubby's arrival in Canada (May 4, 2001) and when he advised Canadian
Immigrant Officials of his intention to seek Canada's protection as
a Convention refugee (May 17, 2002). I do not find that this delay
demonstrates a lack of subjective fear in Mr. Kubby's case. He had legal status when he arrived in Canada, and on
the advice of counsel, believed that he lacked the circumstances required
to make a successful refugee claim. I find this is a plausible explanation
for the delay in making his refugee claim. In addition, I do not find
delay determinative nor do I find it indicative of a lack of fear of
persecution.
- Therefore, Mr. Kubby has established
a subjective fear of persecution in the US.
CREDIBILITY
- Mr. Kubby is passionate about
his beliefs, including his belief that marihuana has saved his life.
Dr. Connors testified that marihuana
seems to be controlling his deadly adrenal cancer. It would have been
helpful to have had one witness testify with greater certainty that
what Mr. Kubby alleges is true
- marihuana keeps him alive. Dr. Connors came the closest to this without
ever actually saying this was the case. In fact, it was Dr. Connors' evidence that any treatments that are available to Mr. Kubby medically in Canada would be available to him in the United States.
- I do not think Mr. Kubby lied
when he testified, and found him to be an intelligent, knowledgeable
though at times, excitable witness. However, in my opinion, he was
prone to exaggeration, and speculation. He made decisions he thought
were reasonable in the circumstances such as leaving the US
with outstanding, unresolved criminal convictions. However, the basis
for his decisions, the underlying premises, have not been borne out
by the facts.
- An example of an exaggeration is the fact that the Kubbys appeared
to take credit for Proposition 215 coming into force as the Compassionate
Use Act. Witness Patrick McCartney on the other hand, testified
that Mr. Kubby had a "small but
important" role in it's passing. Ms.
Kubby reiterated several times: "I passed a law"110
that would allow Mr. Kubby to
smoke marihuana for medical purposes. Many people worked long and hard
to enact the Compassionate Use Act, yet the Kubbys appeared
at times to take most of the credit for its enactment.
- Another example of exaggeration or mis-statement of facts is regarding
Mr. Kubby's legal representation
at his California criminal trial. Mr. Kubby alleges that he was let down by his court appointed public defender
Ms. Mumma who allegedly refused to
answer his or Mr. McCartney's
calls. Mr.Kubby said that he had been left to his own devices while
he was in Canada. He alleges he was effectively "unrepresented" in
his California proceedings going on while he was here. A fair reading
of the court transcripts111
demonstrates that Ms. Mumma was extremely
persistent and diligent in raising defences and making submissions to
the court regarding Proposition 36 relief – the limited purpose
for which she was retained. Ms.
Mumma may not have felt it appropriate, due to solicitor-client privilege
to speak to Mr. McCartney. The
transcripts filed demonstrate that Ms.
Mumma was present and made submissions on Mr. Kubby's behalf on April 27, 2001 and on July 20, 2001, at a time Mr. Kubby testified he was no longer represented by her.112
- An example of speculation is Mr. Kubby's belief that Mr. was involved
in some way with the anonymous letter that began his prosecution. There
is no evidence that this is true.
- Another example of speculation (and there are others described below),
is the fact that Mr. Kubby remains
convinced federal DEA charges were looming on the horizon when he left
the United States in 2001, yet none have materialised to date, some
two years later (and four years after the original investigation).
He believed he would be extradited from another state and indeed perhaps
from Canada. In fact, no such proceedings have been commenced.
- In addition, it was witness Satterberg's post hearing evidence that
even with the change on the mescaline charge from a misdemeanour to
a felony, it was his opinion that financial constraints would mean it
was highly unlikely Mr. Kubby
would be extradited from any other state to California.113
In addition, witness Cattran said there was no federal warrant outstanding
for Mr. Kubby.114
- The evidence suggests that Mr. Kubby's move to Canada was premature. Mr. Kubby is highly suspicious of US
drug enforcement officials (particularly the DEA), yet rather than discuss
with state authorities how much marihuana he required for medical purposes
(including providing medical evidence of need), he chose to communicate
his need for cannabis to the police while he was under surveillance,
by leaving notes in his garbage which he believed would be intercepted
by the police.
- A Guide for Patients and Physicians in Washington State,
demonstrates how a medical marihuana patient might deal with authorities
if investigated by law enforcement. It is suggested:
[t]hough the Act does not specifically prevent
arrests, police officers are now being trained in ways to determine
legitimate medical versus illegal, social use, when they discover
a person with marijuana. You can make a police officer's job easier,
and protect yourself, by carrying written documentation of your medical
need for marijuana, including a copy of your doctor's authorising
medical records.115
- There was nothing stopping Mr. Kubby from attending the police station, the DEA or the District Attorney's
(DA) offices, accompanied by his attorney, to tell them why he was growing
so many plants and to elicit cooperation and develop a working relationship
with law enforcement, as Angel McCleary Raich has done. He has powerful
evidence with Dr. DeQuattro's
and Dr. Connors' letters that
could be given over to law enforcement officials to establish his need
for medical marihuana. The fact is, Mr. Kubby did not do this. The investigation and prosecution that resulted,
at least in Mr. Kubby's mind,
was a conspiracy against him because he was an outspoken medical marihuana
activist who ran alongside the State Attorney General for California,
in the gubernatorial campaign. In my opinion, it was nothing more than
the state authorities' attempt to satisfy their obligation to protect
the public good from drug dealers.
- I am in no way suggesting Mr. Kubby is a drug dealer. Quite the contrary. However, were we to step
into the shoes of the police, it would be difficult to infer malicious
intent.
- I accept Mr. Kubby is ill with
adrenal cancer, and that he has determined using marihuana is the treatment
that works best with his particular symptoms. He has received a Health
Canada exemption,116
which suggests he is a bona fide ill person in need of medical
marihuana. It is noteworthy that Mr. Kubby was investigated and charged with marihuana related criminal offences
in Canada. Those Canadian charges were later stayed by the Crown, and
his marihuana grow equipment was returned to him by the RCMP after the
charges were stayed. This suggests the Government of Canada believes
he has a medical necessity for marihuana.117
- His tendency to speculate and his exaggerated "conspiracy theory"
notions aside, I find his testimony on the whole, to be generally credible.
In summary, while I have concerns about Mr. Kubby's tendency towards exaggeration and speculation, there are no
major credibility concerns.
PROSECUTION vs. PERSECUTION
(a) Introduction
- Mr. Kubby argued that the criminal
charges against him were politically motivated. He alleges that he
had a role in the enactment of the Compassionate Use Act.
When qualified patients continued to face arrest and prosecution after
passage of the CUA, Mr. Kubby ran for the office of governor of the state of California. One
of his opponents was Attorney General Daniel Lungren, the man Mr. Kubby believed had undermined the implementation of the CUA.
- It is Mr. Kubby's belief that
Mr. Lungren or others acting for
him, had a role in the anonymous letter that began the prosecution.
Mr. Kubby's local opposition to
the actions of the DEA and state authorities allegedly did not make
him popular in some law enforcement circles. The authorities' interest
in him was likely prompted by his outspoken and vocal opposition on
an issue that was controversial. Mr. Kubby was provocative, as he is entitled to be. He was exercising his
constitutional right of free speech.
- However, this does not lead me to find that the entire system of criminal
justice in the US
has been impeached in the manner envisioned by Satiacum.118
The issue I must determine is whether the prosecution against Mr. Kubby was politically motivated.
(b) Fair and Independent
Judicial System
- It is clear that the United States is a democratic country with a
system of checks and balances amongst its three branches of government:
the executive branch, the legislative branch and the judicial branch.
Mr. Kubby alleges the US
system of government is not fair or independent, in part because it
allegedly leads the world in incarceration of its citizens, although
he filed no documentary evidence to support this assertion. In addition
he relies upon the opinion of Judge Gray, a former US
prosecutor and sitting superior court judge, as evidence to support
this view. I will have more to say about the testimony of Judge Gray
below.
- According to the Canadian Federal Court of Appeal, a claimant must
establish "exceptional circumstances" exist in his case such that one
would be left to assume a fair and independent judicial process did
not occur in his US
criminal trial. Furthermore, the events leading up to Mr. Kubby's prosecution and his criminal trial must likewise be taken to
be merged into the judicial system and are not open to review by a Canadian
tribunal.
- In order to rebut the presumption that the American judicial system
is fair and independent, Mr. Kubby
must provide evidence that tends to impeach the total system of prosecution,
jury selection, and judicial oversight. He cannot pick and choose discrete
indiscretions or illegalities by individual participants to demonstrate
a failure of the entire system of government.119
Even if Mr. Kubby could prove
that individual police officers or prosecutors abused their power, in
my opinion, these isolated incidents would be subject to "self-correcting
mechanisms"120
contained within the process itself. He has not demonstrated a failure
of the entire system, nor has he established any persecutory intent
on the part of law enforcement officials, prosecutors or judges in the
state of California or elsewhere in the US.
(c) Laws of General Application
- I must presume that a law of general application, such as the California
Health and Safety Code, is valid and neutral. The onus is on the
refugee claimant to show that the law is inherently or for some other
reason persecutory.121
No evidence was filed which would suggest that the state is in some
way singling out Mr. Kubby for
a Convention reason, in its application of the California Health
and Safety Code. Mr. Kubby's
anti-government political opinion is the reason alleged for abuse of
his prosecution for alleged California Health and Safety Code
violations. In fact, Mr. Panzer
testified that in his opinion, as a criminal defence lawyer, the charges
in the Kubby case were justified in the circumstances.122
Mr. Kubby alleges that Mr.
Panzer's testimony would have been different had they been able to show
him that the DEA report on Pete Brady was a lie.123
In my opinion, this would not have changed Mr.
Panzer's evidence because he based his opinion on the number of plants
found at the Kubby residence.
- Mr. Kubby alleges that he is
not contesting the California Health and Safety Code, but rather
the failure, by the court system, to provide the necessary protection
a bona fide medical marihuana patient such as Mr. Kubby requires to be safe from prosecution and conviction as a drug
criminal. He argues that any system of law including California's is
clearly unjust and persecutory, if seriously ill patients are being
denied protection from police raids and are being blocked from accessing
their medically approved therapy. While I do not take issue with this
proposition, what the claimant fails to address is how he was denied
access to approved therapy, after he was acquitted of marihuana charges.
He has also failed to establish he would not be permitted the benefit
of the exemption in the CUA with a doctor's recommendation,
in future.
- In my view, it is reasonable for the state of California to put restrictions
on the use of medical marihuana. It is not reasonable for Mr. Kubby to assume the state should let him decide what amount is appropriate
to cultivate and process. For example, in Canada, it is Health Canada
that determines the number of plants he can grow. Likewise, in California
he needed to persuade law enforcement that the amount he possessed was
reasonable, given his medical need. Without clear guidelines, it was
for Mr. Kubby to persuade prosecutors
his grow operation was legitimate. He failed to do this, so a trial
was the proper forum to litigate the issue.
- There is no doubt in my mind that if the Compassionate Use Act
had created a neutral body to determine the number of plants a patient
is allowed to grow, medical marihuana patients would have fewer problems
in the US. This
was not done however, and I cannot re-write the CUA to deal
with its perceived frailties.
(d) Jury Trial
- In addition to my comments above, the Minister's counsel submits that
because Mr. Kubby was tried by
a jury of his peers (meaning that the outcome of his trial was in the
hands of his peers, not the police, the prosecutors or the judge), I
should conclude that he received a fair trial. Mr. Kubby on the other hand, submits that the jury was not comprised of
his peers from Placer County, since the prosecution succeeded in obtaining
a change of venue. I find that the facts of the trial were decided
nonetheless by a jury of his peers of US
citizens. Mr. Kubby points to
the trial of Edward Rosenthal as evidence of the unfairness of the system.
Jurors in that case felt betrayed by the judge for not being told that
Mr. Rosenthal was growing marihuana for sick patients and was not a drug
dealer. He ignores the fact that the lower courts are bound by the
US Supreme Court's
decision in the Oakland Cannabis Buyers' Cooperative and as
such, the judge was precluded from permitting Mr.
Rosenthal to advance the "medical necessity" defence because he was
growing for others. In the end, Mr.
Rosenthal received a one-day jail sentence.
- Mr. Kubby alleges further that
the prosecutors tried to improperly exclude persons from the jury, as
further proof of bias and an unfair trial. However, there is no evidence
to support his allegation and certainly no evidence that would tend
to impeach the total system of jury selection or otherwise rebut the
presumption of a fair and independent judicial system in the United
States. To the contrary, the very fact that eleven of the jurors were
in favour of acquitting him on his marihuana related charges demonstrates
that the jury was not biased against him.
(e) Right to Counsel
- A careful reading of the court documents filed demonstrates that Mr. Kubby was asked at each appropriate juncture whether he wanted a court-appointed
public defender. Sometimes he declined124
and other times, he accepted. He was represented much of the time by
able counsel, and when he was not, it was his choice not to be. I find
that he was extended the right to counsel as required by the US
Constitution, for the entirety of his court process.
(f) Independence and Impartiality
of the Presiding Judge
- With respect to the evidence adduced regarding the impartiality of
the Judge who presided over Mr. Kubby's trial, from reading the documents filed, I am satisfied that
Judge Cosgrove was independent and impartial and that Mr. Kubby's trial was fair. Mr. Kubby
has previously acknowledged that he believed that Judge Cosgrove was
independent and that he had acted fairly throughout his trial. During
court proceedings on April 6, 2001, Mr. Kubby stated to Judge Cosgrove:
I do believe that the judiciary is independent, and I believe
that you have in your hand the key to ending this nightmare for my
wife and my family and myself.125
I think that you are the kind of Judge, I think that you
have shown throughout this whole trial, allowing us to look at whatever
both sides wanted to come up, and there were times where we were unhappy,
and I am sure there were times when the prosecution was unhappy, but
you certainly have shown a willingness to look at the total picture.126
- In addition to Mr. Kubby's admission,
there is an abundance of other evidence indicating that Mr. Kubby was treated fairly by Judge Cosgrove and the other judges who
have presided over his proceedings at various points. The Minister's
counsel sets these out in his submissions:
a) Mr. Kubby was permitted to raise a full answer and defence to the charges
against him, including raising the medical marihuana defence provided
by the Compassionate Use Act, a defence which ultimately
proved successful;
b) Mr. Kubby was granted numerous adjournments of his trial to allow him
to prepare his defence;
c) Judge Cosgrove accommodated Mr. Kubby's medical condition by shortening the court day and allowing
him to smoke marihuana on courthouse property during the trial;
d) After Mr. Kubby had been convicted by the jury, Judge Cosgrove, over opposition
from the prosecutors, reduced Mr. Kubby's charges from felonies to misdemeanors and directed that Mr. Kubby could continue to possess and use marihuana in accordance with
the CUA while he was on probation; and
e) Judge Cosgove sentenced Mr. Kubby to serve his jail time at home.
- In the US, judges
are elected officials and may only serve at the pleasure of the electorate.
Judge Gray, one of the witnesses called by Mr. Kubby, is an elected judge in California, and is a good example of the
independence of the American judiciary. He has maintained his position
as a judge even though he has been a public critic of American drug
policies for years. He apparently is not fettered by his position from
expressing his opinion on US
drug policy.
- In addition, I find it noteworthy that the federal judge who presided
over Mr. Rosenthal's marihuana
trial, sentenced Mr. Rosenthal
to a jail term of one day and ordered that it be time served. This,
even though the federal prosecutors had been seeking a six-year jail
sentence for Mr. Rosenthal, demonstrates
that on balance, the system is independent. It would appear that the
judge, by imposing this sentence, did what he was precluded in law from
doing in the trial.
- It seems Mr. Kubby believes
the only just recourse would have been for the judge presiding over
his drug trial to order state and local law enforcements to keep their
hands off of the Kubby medical marihuana garden and permit Mr. Kubby to grow as much marihuana as he feels he needs to stay alive.
Anything short of this seems to be labelled "unfair". Mr. Kubby compares his medical need for cannabis to a diabetic who needs
insulin. "No judge would deny a diabetic their insulin" he submits.
The distinction is clear: insulin has been approved by the medical community
as a treatment for diabetics, whereas marihuana has not. The research
on the benefits of marihuana is woefully inadequate and inconclusive,
making a comparison of these two treatments illogical.
- In his submissions he argues:
The judge should have handed Mr. Kubby a court order spelling out exactly how many plants he could
grow safely, without having to worry about another raid. Instead,
he placed Mr. Kubby and his
family in the direct line of fire of law enforcement by putting him
on three years of probation. Law enforcement had carte blanche to
come into Mr. Kubby's life and
judge whether he and his family were living up to police standards
or not.127
- Mr. Kubby lacks an understanding
of judicial limitations. The trial judge was deciding a criminal case,
not setting guidelines for how much marihuana he could grow. The number
of plants found at the Kubby residence warranted the laying of charges,
as his own defence lawyer, Mr.
Panzer, conceded. I am not persuaded by Mr. Kubby's argument with respect to a lack of due process regarding his
criminal prosecution in California. It is clear to me from the evidence
adduced in this case, that Mr. Kubby was given a fair trial in the US.
(g) Alleged Risk of Federal
Prosecution
- Mr. Kubby is alleging that he
is at risk of a federal prosecution either for his past or future actions.
Several witnesses gave their opinion that Mr. Kubby would be prosecuted by the federal authorities if he returned
to the United States. Mr. Kubby
argues that if he were prosecuted on federal drug charges, he would
be denied the right to advance the "medical necessity" defence he is
afforded under the CUA for state prosecutions. His fear is
that his continued need for marihuana will cause him to eventually run
afoul of federal laws by growing and cultivating marihuana. He fears
he will expose himself inadvertently to a federal prosecution thereby
inviting a lengthy sentence at the end of a successful prosecution.
- Clearly it is against federal law in the United States to cultivate
and use marihuana for any reason. Accordingly, Mr. Kubby would be committing a federal offence if he were to grow and/or
cultivate marihuana outside of the protection afforded in the CUA.
- However, the evidence on the whole indicates that the DEA's focus
is on large scale drug trafficking. As we have heard repeatedly in
this hearing, the DEA does not generally get involved in minor drug
investigations and prosecutions, largely because of limited resources.
Mr. Satterberg testified:
I spoke this morning with [DEA] chief criminal deputy there,
and there are no specific guidelines. They are pretty flexible about
what cases that they look at … they typically will not handle
a case unless it's at least 500 plants or/and at least 50 pounds of
processed marihuana. Those are kind of general guidelines that they
follow … they are interested in getting drug traffickers.128
- On the one hand several witnesses expressed their opinion that Mr. Kubby would likely be prosecuted by the federal authorities because
he was a high profile marihuana advocate. Based on this evidence, Mr. Kubby alleges that he is at significant risk of being prosecuted by
the federal authorities if he returns to the United States.
- On the other hand, there was also evidence that some prominent marihuana
advocates have not been charged by the DEA. Angel McCleary Raich, who
described herself as a medical cannabis activist,129
was a most compelling and articulate witness. She has several caregivers
who are responsible for growing 500 marihuana plants for her use. She
testified that she and her caregivers have not been investigated or
prosecuted by the federal authorities, although she lives in fear the
day will come when the federal DEA will come for her. In part to deal
with this fear, she has established a good rapport with local law enforcement.
She did however add that the identity of her caregivers is kept secret
to protect them from prosecution. It is not clear from the evidence
what Ms. McCleary Raich fears, given
she has never been targeted by law enforcement and maintains a good
relationship with them. It is a non-specific, generalised fear that
she describes, because she is ill and therefore vulnerable.130
- The testimony of Mr. Satterberg
directly contradicted the opinion expressed by some witnesses that Mr. Kubby would be prosecuted by the federal authorities because of his
political opinions. It was his evidence that the federal government
authorities do not have a policy on medicinal marihuana patients and
it is not their practice or intent to try to prosecute a medicinal marihuana
case simply to make some sort of political point.131
Of course, he was describing his relationship with federal prosecutors
in Washington state and was not expressing an opinion on what the DEA's
position might be in California.
- However, it is noteworthy that the DEA is a federal institution and
one would assume that theirs is a national policy. What Mr.
Satterberg was saying about Washington state would likely be their drug
policy throughout the US.
- By way of example, the city of Seattle Vice and Narcotics Section
Commander wrote to the US
Department of Justice, seeking clarification of consequences to police
officers who returned medicinal marihuana seized pursuant to drug investigation,
if a recommendation by a doctor was verified. The police were concerned
that by returning a Schedule I controlled substance (marihuana) they
would be in violation of federal law.132
- The US Attorney
responded that while Washington State's medical marihuana initiative
was clearly in conflict with federal laws prohibiting cultivation, possession,
distribution of marihuana, and drug control policies of their Administration
(that legalised medical use of controlled substances should be based
on medical research) they understand that the conflict between state
and federal laws puts the Seattle Police Department in an "uncomfortable
position."133
- Speaking for the US
Department of Justice, the Attorney stated:
Given our limited funding and overwhelming responsibilities
to enforce an ever larger number of federal offenses, we simply cannot
afford to devote prosecutive resources to a case of this magnitude.
- In short, she would decline to prosecute, and confirmed they have
no interest in the police investigating and forwarding cases involving
medical marihuana patients
- The federal authorities did not handle Mr. Kubby's prosecution at the time he was arrested. One would think that
if they were interested in doing so, the time to have done this would
have been when he was arrested in 1999. At that time he was a prominent
medical marihuana advocate. He had recently finished his campaign to
become the Libertarian governor of California and during that campaign,
he had publicly criticised drug polices in the United States and supported
the legalisation of marihuana. Despite Mr. Kubby's public profile as a marihuana advocate and the DEA involvement
in the execution of the warrant at his residence, he was not charged
federally. Nor has he been charged federally since his acquittal on
state charges in the US.
- Moreover, there is no evidence that the federal authorities have taken
any steps to lay federal charges against Mr. Kubby following his acquittal on state marihuana charges. Several witnesses
alleged that they had heard that a federal prosecutor wanted to arrest
Mr. Kubby, but there is no evidence
to support these allegations. Even Mr. Kubby appeared to acknowledge that he had no evidence that the federal
authorities intend to revive the charges against him.134
- It has been four years since Mr. Kubby was arrested in California. I do not have any evidence the Federal
Drug Enforcement Administration is interested in him today. Gerald
Uelmen, a Professor of Law at Santa Clara University Law School who
was involved in both the Mower case before the Supreme Court
of California and the Oakland Cannabis Buyers' Cooperative case
before the United States Supreme Court, has stated that the federal
government has never prosecuted a cancer or AIDS patient for simple
possession of marijuana for personal use and expressed his opinion that
it never will, because government officials realise no jury would ever
convict in such a case.135
(h) Fugitive From Justice
- Mr. Kubby urges me to find that
he is not a fugitive from justice, but rather a victim of arbitrary
arrest and prosecution, the result of which was a jail term, which he
alleges will cause his death, if he is forced to serve it in a prison.
In his submissions, Mr. Kubby
alleges that the allegation that he is a fugitive has never been adjudicated
in the US and that
in Canada, where it has, the Immigration Adjudicator ruled that Mr. Kubby entered Canada legally and is not a fugitive.136
On July 30, 2001, a bench warrant was issued in California for Mr. Kubby's arrest, as a result of his violation of probation. Accordingly,
I agree with the characterisation of Mr. Kubby as a fugitive from US
justice, notwithstanding the fact that he entered the country legally.
In addition, Judge Kolkey of the California Court of Appeal made the
finding that Mr. Kubby is a fugitive.137
- Mr. Kubby also urges me to accept
that he is a victim of a justice system whose priorities, for reasons
of his political opinion, have gone astray. That in its aim of eradicating
drug use and thereby prevailing in the "War on Drugs," it has ignored
its own US Constitution
and trampled on individual civil liberties. He expects that the commission
of an offence, in this case the failure to appear in Court to serve
his sentence, coupled with fleeing the jurisdiction contrary to the
terms of his probation order, should not automatically lead to the conclusion
that his fear is of prosecution and punishment, rather than of persecution
on one of the grounds specified in the definition.
- Having made the finding that Mr, Kubby is a fugitive from justice,
it is important to draw a distinction between a "fugitive" and a "refugee"
facing persecution. The United Nations High Commissioner for Refugees
(UNHCR) has considered this distinction in its handbook.
… a fugitive from justice [may] not use the Convention
as a shield, and therefore abuse the Convention refugee process.
'Persecution must be distinguished from punishment for a common-law
offence. Persons fleeing from prosecution or punishment for such
an offence are not normally refugees. It should be recalled that
a refugee is a victim, or potential victim, of injustice, not a fugitive
from justice.'138
(i) Summary
- Despite his impassioned evidence, Mr. Kubby has failed to demonstrate that he did not receive a fair trial
in California. In my view, he was afforded numerous procedural and
substantive legal rights in the United States. Mr. Kubby submits that his witnesses, some of whom are similarly situated
to him, have demonstrated the shortcomings of the US
judicial process. What is clear to me from reading the cases that have
come out of the US
Courts of Appeal, and the US
Supreme Court, and carefully listening to the witnesses who have testified
in this case, is that matters are being considered and judgments are
being made on the issue of medical use of marihuana in the United States.
The debate is still very much alive.139
- The fact that the outcome does not always please the litigants is
not evidence of bias, unfairness, breach of Constitutionally protected
rights, or persecution. It is evidence of an on-going debate in a politically
charged area of the law: that is, the issue of the use and abuse of
marihuana for medical reasons. The sad reality is that this in an area
of law subject to abuse by drug users, traffickers, and those who would
benefit from taking advantage of the medical marihuana laws, to the
detriment of legitimately ill and dying patients.
- The marihuana debate is underway in many countries today, including
Canada, and it will not be easily or quickly resolved. Based upon the
documents filed, Mr. Kubby was
given a fair and impartial trial in the US
and was afforded multiple avenues of appeal. He has therefore failed
to establish that the trial process was not fair. He has likewise failed
to establish the process was persecutory.
- I reject his evidence that he was the victim of a "witch hunt" by
prosecutors, law enforcement officials and judges. I prefer the evidence
of a lack of persecution presented by the witnesses of the Minister's
counsel because their evidence, coupled with the documentary evidence
filed, demonstrates that the United States government is bound by its
Constitution and affords legal protections where individual
rights are concerned.140
- Although the Preamble of the US
Constitution is not a source of power for any department of the
Federal Government, the US
Supreme Court has often referred to it as evidence of the origin, scope,
and purpose of The Constitution. The Fifth Amendment guarantees
a person the right against self-incrimination and double jeopardy in
a criminal proceeding. The Sixth Amendment affords an accused person
a "speedy and public trial, by an impartial jury of the State and district
wherein crimes shall have been committed … and to be informed
of the nature of the [crime] and to have the assistance of counsel for
his defence. " 141
- I find that the US
Constitution and its entire system of justice, are devised to afford
individual civil liberties, and extensive fundamental rights.
- As noted above, with the exception of one brief period following his
arrest in January 1999, Mr. Kubby
has been able to use marihuana in the United States for more than fifteen
years without incident. Even following his arrest, Mr. Kubby was able to continue smoking marihuana without any interference
by law enforcement even though he alleges he was forced to purchase
marihuana illegally. Furthermore, during his trial, the Court facilitated
Mr. Kubby's use of marihuana.
- While I accept Mr. Kubby fears
returning to the US
to serve out his sentence, I do not accept that his fear is objectively
well founded. It is clear to me that Mr. Kubby and some of his supporters, have lost faith in the judicial process
in the US. There
has been much written about the federal versus state mandates in the
"War on Drugs", that has been unflattering to the Federal "drug Czar"142
and the DEA. There is no doubt that the US
must reconcile two opposing legal doctrines: the states that have passed
Compassionate Use Acts (or their equivalent) as against federal
laws which declare that possession of a Schedule I drug should net the
convicted felon substantial jail time. In the words of the United States
Attorney, this is a "complex and contradictory area of drug enforcement."143
AVAILABILITY OF STATE PROTECTION
- There is a requirement in the definition of Convention refugee that
the claimant be unable, or by reason of his fear of persecution, unwilling
to avail himself of the protection of the country of nationality (citizenship),
in this case, the United States. The Supreme Court of Canada in Ward
extensively canvassed the issue of state protection.
Having established that the claimant has a fear, the
Board is, in my view, entitled to presume that persecution will be
likely, and the fear well-founded,
if there is an absence of state protection. The presumption goes to
the heart of the inquiry, which is whether there is a likelihood of
persecution.
Having established the existence of a fear and
a state's inability to assuage those fears, it is not assuming too
much to say that the fear is well founded. Of course, the persecution
must be real – the presumption cannot be built on fictional
events – but the well-foundedness
of the fear can be established through the use of such a presumption.144
[Emphasis added]
Although this presumption increases the burden on the claimant,
it does not render illusory Canada's provision of a safe haven for
refugees. The presumption serves to reinforce the underlying rationale
of international protection as a surrogate coming into play where
no alternative remains to the claimant. Refugee claims were never
meant to allow a claimant to seek out better protection than that
from which he or she benefits already.145
- The state's ability to protect the claimant is a crucial element in
determining whether the fear of persecution is well founded, and as
such, is not an independent element of the definition. The issue of
state protection goes to whether the fear of persecution is objectively
well founded.
- The claimant has come to Canada seeking refugee protection. The responsibility
to provide international protection only becomes engaged when national
or state protection is unavailable to the claimant. This is referred
to in Ward as "international" or "surrogate" protection. If
the state in question is able to protect the claimant, then his fear
is not, objectively speaking, well founded.
- Moreover, except in situations where the foreign country is in a state
of complete breakdown, states must be presumed capable of protecting
their citizens. This presumption can be rebutted by "clear and convincing"
evidence of the state's inability to protect. The danger that the first
presumption (set out above), will operate too broadly, is tempered by
a requirement that clear and convincing confirmation of a state's inability
to protect must be advanced.
Absent some evidence, the claim should fail, as nations
should be presumed capable of protecting their citizens. Security
of nationals is, after all, the essence of sovereignty. Absent
a situation of complete breakdown of state apparatus, such as
that recognized in Lebanon in Zalzali146
it should be assumed that the state is capable of protecting a claimant.
[Emphasis added]
The quantum of clear and convincing evidence required to
rebut the presumption of a state's ability to protect will depend
on its democratic processes.147
- Mr. Kubby adduced evidence
of similarly situated individuals whom he alleges have been let
down by the state protection arrangements. He alleges that the state
is singling out medical marihuana users for abuse and endangering their
lives thereby. He argues the state cannot or will not protect him from
the ambiguity of the laws in the US.
- In Satiacum, the Federal Court of Appeal held:
In the absence of exceptional circumstances established
by the claimant, it seems to me that in a Convention refugee hearing,
as in an extradition hearing, Canadian tribunals have to assume a
fair and independent judicial process in the foreign country. In
the case of a non-democratic State, contrary evidence might be readily
forthcoming, but in relation to a democracy like the United States
contrary evidence might have to go to the extent of substantially
impeaching, for example, the jury selection process in the relevant
part of the country, or the independence or fair-mindedness of the
judiciary itself. [Emphasis added]
- In Kadenko,148
the Federal Court of Appeal noted that the burden of proof to establish
the absence of state protection is:
directly proportional to the level of democracy in the state
in question. The more democratic the state's institutions, the more
the claimant must have done to exhaust all the courses of action open
to [him].
- The claimant bears the burden at all times of rebutting the presumption
that the state is capable of protecting its citizens. Decisions following
Ward have established that state protection need not be perfect.149
- A review of Satiacum150
is helpful to the analysis of whether the claimant's subjective fear
of persecution is objectively well founded because the facts of that
case have similar elements to the present case. In that case, a Hereditary
Chief from Tacoma Washington, Robert Satiacum, made the claim that he
was a Convention refugee and could not obtain the protection of the
US government.
- In May 1982, Mr. Satiacum was
indicted and, after a trial with a jury, Mr.
Satiacum and two other co-accused were found guilty. He was never sentenced
because he fled to Canada while out on bail awaiting sentencing, therefore,
he was not present when his co-accused were sentenced.
- Mr. Satiacum was arrested in
Canada in 1983 and claimed refugee status. In a 77-page decision, the
Immigration Appeal Board (IAB, as it then was) rendered a split - decision.
Two of the three Members determined Mr.
Satiacum was a Convention refugee. Pursuant to the law at the relevant
time, this resulted in a positive determination of Mr.
Satiacum's claim. The third panel Member dissented, and held that Mr.
Satiacum did not have a well founded fear of persecution, in part based
on the fact the US
was a democracy and therefore the claimant's fear was not objectively
well founded.
- Mr. Satiacum feared being murdered
while in jail serving his sentence on criminal charges. The IAB held
this fear was reasonably justified, both for the past and in the present.
- They arrived at this conclusion based on the evidence adduced at the
hearing. It was not suggested that the US
government took an active role in the persecution, but it was alleged
the government could not protect him.
- The Board relied upon Rajudeen151
and Surujpal152
and held:
It is not necessary to the success of the applicant's claim
that active harassment by federal authorities be shown, as long as
they were shown to be unable or unwilling to effectively protect the
applicant.
- A majority of the IAB held there was an objective basis to Mr.
Satiacum's fear of persecution because the federal government did not
protect him against strong and vocal state interests, which he challenged.
It is significant that the panel did not know the reason for the inactivity
by federal officials, since there was no evidence tendered, either way.
The IAB found that Mr. Satiacum
feared for his life if incarcerated in a federal prison.
- The Federal Court of Appeal held that the degree of risk, or likelihood
of persecution was that established in Adjei.153
What is evidently indicated by phrases such as "good grounds"
or "reasonable chance" is, on the one hand, that there need not be
more than a 50% chance (i.e., a probability), and on the other hand
that there must be more than a minimal possibility. We believe this
can also be expressed as a "reasonable" or even a "serious possibility",
as opposed to a mere possibility.
- For this reason, Mr. Justice
MacGuigan, speaking for the majority in Satiacum, held that
Rajudeen was inappropriately applied to the facts of Mr.
Satiacum's case. In Rajudeen there was illegal and violent
harassment by intolerant majorities with police acquiescence or indifference,
which amounted to state complicity in the persecution. In both Rajudeen
(Sri Lanka) and Surujpal (Guyana) there was no federal state
(as in the US) and
there was no judicial system in play.
Both cases clearly deal with the kind of law enforcement,
which may amount to persecution. Neither relates in any way to the
judicial process, let alone to a fair and independent judicial process.
The Board majority therefore erred in law in applying Rajudeen
to the facts in the case at bar.154
- The Federal Court was clear in its guidance:
Again, in the absence of proof by the refugee claimant,
Canadian tribunals must assume a fair trial. The notion of a fair
trial in a fair and independent judicial system must make allowances
for the self-correcting mechanisms within the system, e.g.,
the trial judge's control over the excesses of the participants, and
the control of the appellate Courts over any errors of the trial judge.
In all but the most extraordinary circumstances
all the events leading up to a prosecution and all of the events of
a trial in a free and independent foreign judicial system must be
taken to be merged into the judicial process and not open to review
by a Canadian tribunal. Extraordinary circumstances would
be those, for example, which tended to impeach the total system of
prosecution, jury selection or judging, not discrete indiscretions
or illegalities by individual participants which, even if proved,
are subject to correction by the process itself.155 [Emphasis
added]
- In Ward, the Supreme Court of Canada, commented on Satiacum:
The Federal Court of Appeal's disposition in Satiacum
may best be explained as exemplifying such a case of presumption of
a state's ability to protect and of objective unreasonability in the
claimant's failure to avail himself of this protection.
- Whether one applies the reasoning of Satiacum (decided before
Ward) or the presumption set out in Ward, it amounts in
effect in the same result.
- Canadian tribunals must assume a fair and independent judicial process
in a foreign democracy such as the United States. Mr. Kubby, through his evidence, has attempted to demonstrate that the US
Federal Government, through its Drug Enforcement Administration (DEA),
post September 11, 2001 and under the Bush administration, has become
non-democratic. I do not find this amounts to the "exceptional circumstances"
envisioned in Satiacum.
- Although Mr. Kubby and his witnesses
were passionate when they testified that the United States is no longer
a democracy, and is denying the most fundamental of rights to patients
who use cannabis medicinally,156
insufficient evidence has been advanced to support this assertion, in
Mr. Kubby's specific case.
- In the present case, the claimant has failed to establish there exists
"exceptional circumstances" that would warrant international protection.
"Exceptional circumstances" do not exist in relation to the search of
Mr. Kubby's home, nor in the charges
which followed that search. The state of California charged Mr. Kubby with cultivation and conspiracy – very serious charges –
as well as other drug-related offences arising from his marihuana grow-operation.
Law enforcement believed he was growing too many plants to be a bona
fide medical marihuana user. Witness Patrick McCartney testified
there were no limitations on plants grown and possessed, in the Compassionate
Use Act, by "design," and they were "vague".157
Mr. Kubby alleges he stuck to
the "Oakland Guidelines"158
on the number of plants he could grow. These Guidelines have been amended
since Mr. Kubby's arrest,159
and Bill 420 which comes into force in January 2004 would radically
change the guidelines for medical marihuana patients.160
Because the instructions to law enforcement in 1999 were vague, the
proper procedure when in doubt, was to have a deputy district attorney
make the call, which happened in Mr. Kubby's case. Prosecutor Christopher Cattran attended the Kubby residence
when the warrant was executed161
and made the decision that charges were reasonable in the circumstances.
He was aware that Mr. Kubby intended
to raise the defence of medical necessity. The recourse Mr. Kubby had was to the courts. Both Mr.
and Ms. Kubby were provided the full
benefit of due process, the result of which is that they no longer face
any marihuana-related charges. In effect, the process worked, as it
was designed to. I do not wish to minimise the trauma and expense to
the Kubbys of such a process, however, I am guided by law, and do not
have the mandate to apply humanitarian and compassionate considerations.
- The United States has a court system which is very similar to Canada's.
There are safeguards built into the justice system – the right
to counsel, the right to remain silent, the right against self-incrimination,
are some examples. Satiacum stands for the proposition that
the Refugee Protection Division must be extremely careful when dealing
with cases from a democracy such as the United States, before affording
international protection. Even where, as here, there are allegations
of an abuse of power or authority within the democracy, it is necessary
to be mindful of "self-correcting mechanisms". In this case, Mr. Kubby had able counsel representing him and he had full appeal rights,
some of which he exercised. Prosecutors and law enforcement officials
are subject to complaints procedures that Mr. Kubby could have used if he felt there was an abuse of power or process.162
- The state law enforcement officials are responsible for criminal charges
in drug cases where the seizure is for a smaller number of plants than
the Federal DEA would be interested in prosecuting. Several minimum
numbers of plants were discussed, and it is not entirely clear in which
cases the DEA would determine their intervention was necessary. However,
the prosecutor in the case, Mr.
Cattran testified that somewhere around one thousand plants might be
needed to involve the limited resources of the DEA. Mr.
Satterberg said less than five hundred plants or fifty pounds of dried
marihuana would likely not result in federal prosecution. Mr. Kubby seems to concede this in his submissions.
It is well known in criminal justice circles that federal
prosecutors are only interested in pursuing cases involving more than
500 plants or 1000 plants in some jurisdictions.163
- Around two hundred and sixty-five plants were seized from the Kubby
residence, well below the number of plants that would be of concern
to the DEA. While it was the DEA who executed the warrant at the Kubby
residence, it was clear from a review of the videotape164
of that search, that the DEA was interested in the preservation of evidence,
not in persecuting Mr. Kubby.
After the seizure, the investigation was handed over to the state authority.
There is no evidence of an on-going interest by federal authorities,
in Mr. Kubby's case, as he alleges.
The significance of this is that Mr. Kubby testified that he would be precluded from raising the defence
of "medical necessity" in a federal prosecution and as I have already
noted, he has failed to establish he is likely to face federal prosecution.
- The problems between the enforcement of state medical marihuana laws
and the Federal DEA's interest in abolishing drug trafficking and possession
are not mutually exclusive. They can co-exist with cooperation between
the two departments. Mr. Satterberg
testified this is the case in King County.
- The United States government has grappled with this dichotomy, between
federal and state powers, and many legal minds have turned their attention
to the issues involved.165
- Mr. Kubby chose to leave the
US after all of the
criminal charges against him and his wife had been prosecuted, and a
sentence rendered. He took extraordinary steps to ensure he received
approval for electronic monitoring and could therefore serve his sentence
in the comfort of his home, in order that he might medicate with marihuana,
as he needs to. His objection to the sentence was in part due to the
imposition of a three-year term of probation, one of the terms of which
would permit his probation officer to search his home if illicit drug
use was suspected. This Probation Order provided an exemption for the
growth and consumption of marihuana.166
Mr. Kubby decided it would be
too difficult to find someone who could rent him a home under these
circumstances, yet advanced little evidence other than his testimony,
that this was so. He decided it would be an unnecessary violation of
his civil rights to have a probation officer possessed with such power,
for three years, yet advanced no concrete evidence of a problem. Prosecutor
Christopher Cattran noted there is recourse for a defendant who alleges
a probation officer is improperly using the search clause.167
- In summary, Mr. Kubby has not
rebutted the onus upon him to establish that his state is able to protect
him from rogue probation officers or law enforcement acting beyond the
scope of their power. In addition, he has not established the state
as a whole, is in a situation of complete breakdown. I am satisfied
the US government
is able to protect Mr. Kubby from
persecution, if he were to actually face persecutory acts in the US.
CLAIM PURSUANT TO IRPA
Section 97
(a) Definition and Burden of
Proof
- [184] As stated above, section 97 of the IRPA168
requires a person claiming refugee protection to establish that they
face a risk to their life, or a risk of cruel and unusual treatment
or punishment, in their country of origin. This risk is to be assessed
using the standard of "serious possibility."169
Section 97 also provides protection to individuals who establish there
are good grounds to believe they will be tortured within the meaning
of Article 1 of the Convention Against Torture.170
(b) Nature of Mr. Kubby's Risk to Life Claim
- Mr. Kubby alleges he will be
incarcerated in a prison if he returns to the US.
Mr. Kubby alleges further that
he will be denied his drug of choice, cannabis, if incarcerated, and
that he will die as a result of the denial of cannabis. I find that
this is speculation on his part.
- Governor Davis' Bill 420 previously mentioned, contains section 11362.785(c)
that provides as follows:
Nothing in this article shall prohibit a jail, correctional
facility, or other penal institution in which prisoners reside or
persons under arrest are detained, from permitting a prisoner …
to use marijuana for medical purposes under circumstances that will
not endanger the health and safety of other prisoners or the security
of the facility.171
- There is insufficient evidence that Mr. Kubby would not be afforded appropriate medical attention, should he
need it, while serving his sentence in a state prison. The evidence
he proffered of what transpired while he was briefly detained when he
was initially charged with drug offences, is inconclusive. Mr. Kubby alleges he will go into adrenal failure, his blood pressure would
become elevated, and he could have a stroke or heart attack, if left
unattended. Dr. Connors agrees
with Mr. Kubby's description of
what is likely to happen, should he be cut off from marihuana.172
- There is insufficient evidence that Mr. Kubby would not be removed from his jail cell and taken immediately
to a hospital for treatment if a medical crisis occurred. We have no
evidence that Mr. Kubby would
not be permitted to treat himself in a US
hospital, with marihuana for medicinal purposes, through the use of
a vaporiser, for example.
- In fact, we have evidence to the contrary, from Angel McCleary Raich.
Ms. Raich testified173
she was permitted to use a vaporiser while in hospital, in order to
medicate with marihuana. Mr. Kubby
has not established his hospital placement if required, would result
in different treatment. Dr. Connors
was asked whether he had ever treated a patient with adrenal cancer
who was incarcerated. He replied:
you need to understand that his is a very rare problem,
and the chance that an incarcerated prisoner would happen to have
this condition has to be astronomically small.174
- Therefore, it is reasonable to assume that if the state correctional
authorities are presented with a medical history, treatment for Mr. Kubby's illness would factor in the rarity of his condition and authorities
may conclude that permitting Mr. Kubby to ingest cannabis or marinol175
while in jail, would not set a dangerous precedent for future patients
in similar situations, because his illness is so rare. That fact alone
suggests a unique handling of Mr. Kubby's case is likely. Mr. Kubby
was asked if he had ever used marinol and he said he had not and would
not, because he feared side-effects. Marinol is a substance used in
place of cannabis where smoking is not permitted, as it can be ingested
orally.176
- The evidence tendered by Mr. Kubby to establish a failure of the justice and medical systems in the
US that would amount
to risk of harm to he and his family, has been described by Mr. Kubby. He has described undergoing surveillance, the execution of a
search warrant, threats of federal charges that have never materialised,
uncertainty that he would be permitted to ingest marihuana in a federal
or state prison, the refusal to extend the one hour he was permitted
to be outside his home while serving his house arrest sentence, the
refusal to revoke the "searchable probation" clause, the threat to involve
state child welfare authorities should he smoke marihuana in front of
his children, and the refusal to drop all criminal charges against him.
In my opinion, all of the allegations Mr. Kubby presents are subject to the "self-correcting mechanisms" described
by Mr. Justice MacGuigan in Satiacum.
They do not, even cumulatively, lead me to conclude Mr. Kubby is a risk of cruel and unusual treatment or punishment, or a risk
to his life.
- Mr. Kubby alleges that he cannot
serve his 120-day prison sentence because he will die once cut off from
marihuana. The medical evidence does not establish that he would (a)
die if cut off from marihuana, or (b) be denied appropriate medical
care while in a US
correctional facility if he suffered an acute medical crisis as a result
of not ingesting cannabis.
- He asked Judge Cosgrove in the proceedings on April 6, 2001 if the
court would "pay particular attention to my arguments regarding my life
and death medical necessity for marijuana if I am jailed" to which the
Judge replied: "I am sure if you are jailed, that situation can be taken
care of one way or another."177
He also went on to consider the 8th
Amendment and whether it would amount to cruel and unusual punishment
and held: "I have considered it. It's certainly not unusual treatment
if you are treated like any other person similarly situated. That's
not cruel and unusual."178
- Many high-profile prisoners are protected during the whole of their
terms of imprisonment. Protection includes ensuring the personal safety
of the prisoner and that person's physical and mental well-being. I
am not persuaded that the US
correctional system will be unable or unwilling to ensure Mr. Kubby survives his penal incarceration, if indeed he is incarcerated
in a prison, a fact that has not been established. I think it is fair
to say that either the Department of Corrections (for state prisoners)
or the Bureau of Prisons (for federal prisoners) are capable of taking
care of Mr. Kubby's special needs,
if he is in danger while in prison. They are charged with the duty
to protect Mr. Kubby while he
is in one of their institutions. Mr. Kubby has not established that they would fail to do so in his case.
- A document filed by Mr. Kubby
discusses this issue.179
This paper, written by John Gordiner, a senior assistant Attorney General
for the state of California states:
… County and state operated correctional facilities
are generally deemed to be responsible for insuring that persons committed
to custody receive proper and necessary medical care. This duty carries
with it the right to independently evaluate the medical condition
of an inmate to determine the appropriate treatment.
Thus, it would appear that a physician working for the facility
may independently determine whether any inmate has the right to use
marijuana as medicine. [footnote: Mere disagreements between treating
physicians, or between an inmate and his treating physician, about
the kind of medical care that is adequate or necessary in his case
fails to state a constitutional violation and thus, a cause of action
under paragraph 1983 of the Federal Civil Rights Act. (see Sanchez
v. Vild, 897 F. 2d 240,
242 (9th
Circ. 1989); Franklin v.
Oregon, 662 F. 2d 1337, 1344 (9th
Circ. 1981)].
- The decision about inmates use of cannabis is left to the attending
physician at the prison.
While there are concerns about inmates in the state's jails
and prisons claiming illness and the need for marijuana, the physician
working at the facility must independently determine whether an inmate
should be provided marijuana, consistent with facility security policies.180
- I infer from this that the provision of cannabis to a prisoner might
be available in certain circumstances, such as those presented by Mr. Kubby.
- Notwithstanding Mr. Kubby's
assertions he will not be provided cannabis in jail, we have further
evidence to the contrary, in the testimony of Judge Gray:
I can tell you there is a constitutional right to medical
treatment if you are in custody of the Marshall's office … that
is why it gets too expensive to keep older people in prison.181
- Judge Gray goes on to say that the Preamble to the US
Constitution confirms the government's obligation to promote
the general welfare.182
- In addition, there was the evidence of William Panzer who testified
that Mr. Kubby would be permitted
to serve his time in a prison hospital if it was necessary for his health,
and that there is a fundamental right to receive medical treatment without
unreasonable interference from the government. He described this as
"substantive due process. "183
He described what happens in situations involving prisoners with AIDS,
those on heart-lung machines, or in need of dialysis. In his opinion,
there is a fundamental right under the Constitution to get
access to medical care, but questioned whether it would be appropriate
or adequate care.184
- Both Judge Gray and Mr. Panzer,
by virture of their roles in the US
justice system, have knowledge of its correctional system. This evidence,
given objectively, as officers of the court, suggests a very different
scenario than that described by Mr. Kubby.
- Finally, Mr. Satterberg testified
there are national corrections standards for prisoners who are in need
of medical care and are wards of the state. It was his evidence that
there would be liability to the county for its failure to provide proper
medical care.185
- In addition, Mr. Cattran's testimony
indicates that once Mr. Kubby
serves his time on the pending convictions, there are no other charges
he will face, and the state of California has no intention of reviving
the charges upon which Mr. Kubby
has been tried.186
- The Common Law recognises the difference between "reasonable inference"
on the facts in evidence, and "pure conjecture. " It would be pure
conjecture on my part to accept that correctional officials would ignore
an acute medical crisis while Mr. Kubby is under their care, for political or other reasons, as he serves
his sentence. The words of Lord Macmillan are instructive:
The dividing line between conjecture and inference is often
a very difficult one to draw. A conjecture may be plausible but it
is of no legal value, for its essence is that it is a mere guess.
An inference in the legal sense, on the other hand, is a deduction
from the evidence, and if it is a reasonable deduction it may have
the validity of legal proof. The attribution of an occurrence to
a cause is, I take it, always a matter of inference.187
- Mr. Kubby's case is unique,
in that no other person has advanced a similar claim before the Immigration
and Refugee Board and in that Dr. Connors has testified his situation is extremely rare. In fact, William
Panzer testified that he has no knowledge of any case where an accused
had a "life and death necessity" for marihuana as Mr. Kubby alleges to have. Mr. Kubby
alleges that by virtue of his unique medical condition, any period of
incarceration would endanger his life. However, on both occasions that
Mr. Kubby was incarcerated, he
was afforded medical attention immediately upon complaining of a medical
crisis. No witness was able to say that Mr. Kubby would not obtain the medical treatment he required if incarcerated.
- There are facts to the contrary: (1) a penitentiary system that has
the ability to protects its inmates, (2) a Probation Order permitting
him to serve his sentence in his home; (3) Dr. Connors ability to speak authoritatively on Mr. Kubby's behalf before this Board, and presumably if he needed a medical
opinion in the US;
(4) the notoriety of Mr. Kubby's
public assertion that he will die without marihuana. These facts could
permit an inference that the claimant's life would not be in danger
if imprisoned. There are no facts on the record that would found the
opposing inference – that Mr. Kubby would die if incarcerated in a US
prison. On that side there is only conjecture.
(c) Lawful Sanctions
- In analysing Mr. Kubby's risk
to life and risk of cruel and unusual treatment or punishment, above,
I have found he has not established such a risk. I have found that
what Mr. Kubby alleges he risks
is criminal prosecution pursuant to lawful sanctions. Mr. Kubby must establish that the risk to his life is inherent and incidental
to lawful sanctions that have been imposed in disregard of international
standards.
- Mr. Kubby cannot be sent to
jail other than through the imposition of lawful sanctions. The United
States is a signatory to international treaties, some of which are intended
to control international and domestic trafficking in controlled substances.
The CUA is in place in part to fulfill the US
obligation under these treaties. Canada's apparently more flexible
laws on marihuana for medical use are the first in the world.188
Possession (at least for the moment) and distribution of marihuana remains
illegal in Canada. The Health Canada medical exemption afforded to
Mr. Kubby provides amounts permissible
to possess and grow depending on individual need.189
- The Canadian Medical Association (like its US
counterpart), opposes the medical exemption because there is insufficient
empirical scientific research available to permit doctors to properly
prescribe dosage. While there is currently a source of the drug legally
available through Health Canada, many medical doctors are reluctant
to have marihuana in their offices due to the high potential for abuse.190
There is no evidence before the panel that US
marihuana laws and sanctions arising from them are imposed in disregard
of international standards.
- I find there is insufficient evidence to conclude Mr. Kubby's medical condition would be ignored if he were sentenced to a
penal institution. He has therefore not established that he is a person
in need in protection.
- The analysis with respect to state protection applies to the analysis
of his claim under section 97 as well.
INTERNAL FLIGHT ALTERNATIVE
- We heard from witnesses from other jurisdictions, notably from Washington
State (Mr. Satterberg) and from
Oregon (Ms. Leverette) about their
medical marihuana drug policies. Mr. Kubby has not established he has a well founded fear of persecution
or a risk under IRPA section 97, in California, in that his
subjective fear and risk to his life, have not been objectively established,
as discussed above. Accordingly, it is not necessary to analyse whether
he has an Internal Flight Alternative to another part of the United
States.
CLAIMS OF MICHELE KUBBY AND THE MINOR
CLAIMANTS
- Ms. Kubby has made her claim on
the basis of her husband's. She claims to be at risk to her life independently
of her husband. She testified that she suffers from irritable bowel
syndrome and ingests marihuana as her drug of choice. While she is
in possession of a medical recommendation to use marihuana in the US,
she did not provide this to the Board. I accept that she was granted
this recommendation in California. She concedes that hers is not a
medical necessity need for marihuana and that other drugs might help
her with her medical problem, though not as well as marihuana does.
She also conceded that many doctors do not believe her illness warrants
a recommendation that she use marihuana for medical purposes.191
- Ms. Kubby testified that she could
use medical marihuana in the US
but she does not possess a doctor's recommendation or a Health Canada
exemption, in Canada. In my opinion, Ms. Kubby is in a worse position vis-à-vis her use of medical marihuana
in Canada, where she is not permitted to use it, than she is in the
US, where she is
permitted to use cannabis.
- While she alleges that the quality of her life is affected when she
does not use cannabis, she conceded that there is not a risk to her
personally if she is denied its use.
- Her risk is based upon the fact, in part, that she was arrested along
with her husband because the marihuana was grown at their residence.
She fears she will be charged with other crimes related to assisting
her husband because she tends their marihuana garden. She fears charges
of cultivation, and perhaps conspiracy. She alleges that she will be
prosecuted by federal authorities for her work on Pot TV and her reporting
on US drug policies.
She also fears what would happen to her and their children if Mr. Kubby
had to return to the US.192
I note that Ms. Kubby was acquitted
of all charges she was accused of along with Mr. Kubby and there are no outstanding charges against Ms.
Kubby at present. Ms. Kubby alleges
that she fears "prosecution."193
- The Minister on the other hand submits that Ms.
Kubby has not shown that there is a serious possibility she would be
persecuted if she were to return to the US
with or without her husband. Ms.
Kubby did not file any evidence to suggest that she is of interest to
law enforcement officials in the US,
either federally or in the state of California, or any other state.
- In addition, Ms. Kubby concedes
that her use of marihuana for irritable bowel syndrome is a choice for
her and not a medical necessity. She has not advanced any evidence
of a risk to her life, or a risk of cruel and unusual treatment or punishment
if she returns to the US.
She has alleged that she fears her children will be taken from her if
she returns to the US,
however, she has not persuaded me that this is a real possibility in
the circumstances.
SUMMARY
- What Mr. Kubby alleges does
not amount to persecution. He was prosecuted for a breach of a law
of general application. His prosecution ultimately resulted in all
marihuana charges being dealt with, none by conviction.
- Mr. Kubby likens his situation
to that of a diabetic. He asserts that the state would never deprive
a diabetic of their insulin and he should not be denied life-saving
marihuana. As I have said, there is a clear distinction between insulin,
which has been approved by the American Medical Association, and cannabis,
which has not. Not only has cannabis use not been approved, it has
been denounced in some quarters and described as "snake oil" by others.
I do not agree. It is clear from the evidence advanced in this case,
that marihuana is helping control Mr. Kubby's cancer symptoms. However, more research is needed to draw a
medical connection between Mr. Kubby's longevity with a terminal illness, and his ingestion of marihuana
as the cause of this longevity.194
- As the sentencing judge said:
This case started off as a marijuana case. It's not a marijuana
case today. It went through a trial and the jury essentially decided
that the issue of marijuana … [is] out of the picture. This
is a case regarding possession of two illegal substances, mushrooms
and peyote buttons. Much of this argument has revolved around marihuana.
That's not the issue.195
- Mr. Kubby is still trying to
make this a case about the denial of his right to cultivate and possess
marihuana. That is not what this refugee case is about. He argues
that a medical marihuana patient should be protected from prosecution.
What he has demonstrated is that in fact, they are.
- Despite Mr. Kubby's evidence
that he has a well founded fear of persecution in the United States,
it is important to note that as a medical marihuana patient with a recommendation
to use marihuana in California, Mr. Kubby has limited immunity from prosecution.
- The state of California in Proposition 215 and later under the CUA,
has chosen not to decriminalise the use and possession of medical marihuana
for patients. Instead, the decision was made to permit sick and dying
Californians to possess and cultivate marihuana so long as its conditions
are satisfied—and have made it no more criminal than possession
and acquisition of any prescription drug with a physician's prescription.196
- The burden (at least for the present) is on the patient to satisfy
law enforcement of a medical need and a supply of the medicine to address
that need. Anything beyond this, would be litigated in a court for a
judge to decide. This is what Californians decided would be a fair
process in order to provide marihuana for patients and also to deal
with the high potential for abuse. It is not for the Immigration and
Refugee Board to look behind this process decided by the public and
the courts in California.
- Chief Justice Ronald M. George wrote for the Court:
In light of its language and purpose, [Proposition 215]
reasonably must be interpreted to grant a defendant limited immunity
from prosecution, which not only allows a defendant to raise his or
her status as a qualified patient or primary caregiver as a defense
at trial, but also permits a defendant to raise such status by moving
to set aside an indictment or information prior to trial on the ground
of the absence of reasonable or probable cause to believe that he
or she is guilty.197
- Mr. Kubby has the option open
to him when he returns to the US
to raise the defence at the time of any future investigation, that he
is a qualified patient, growing an amount as required by him. If charged
he may yet again raise the medical necessity defence in a pre-trial
motion, or at trial. At each step, he is entitled to full answer and
defence. His preferred process would be for someone to advise him how
much he can safely grow and then he would grow that amount, thereby
being guaranteed not to be prosecuted. Perhaps this would be the best
approach. Certainly it is the approach that Canada has adopted. But
it is not the only approach and governments are entitled to choose from
amongst a variety of approaches in order to deal with this difficult
issue. There are fifty-two states in the US
– some, like Washington and California, have very liberal and
clear medical marihuana laws. Mr. Kubby is free to choose to live in whichever state he feels best meets
his medical needs.
- Mr. Kubby does not fear persecution
in the US. Moreover,
he has not rebutted the presumption that the state is capable of protecting
him, for the reasons given above.
- In addition, I find that Mr. Kubby is not at risk of cruel and unusual treatment or punishment, or
a risk to his life. He asserts he is at risk of being jailed and will
die if imprisoned because he will be cut off from cannabis. He has
failed to demonstrate this is even remotely likely. The scope of section
97(1)(b) is very narrow. The provisions will benefit mainly those who
face a risk which is not generalised.
- Moreover, Mr. Kubby's risk is
incidental to lawful sanctions and a claimant is not a person in need
of protection if the risk faced is inherent or incidental to lawful
sanctions. Lawful sanctions however, cannot be imposed in disregard
of accepted international standards. I have carefully analysed his claim
and find that the laws in the United States that are relevant to Mr. Kubby's claim do not offend international norms and as such, he has
not established there is a risk to his life or a risk of cruel and unusual
treatment or punishment.
- Finally, I have adjudicated this claim on the basis of domestic law,
that is, the Immigration and Refugee Protection Act, but I
have done so with the understanding that there is a common law presumption
that Canada's laws have been enacted with the intention of giving force
to Canada's international obligations. Accordingly, I have considered
domestic law such as Canada's Charter of Rights and Freedoms, which
states that everyone has the right to life, liberty and the security
of the person.198
I have also considered the Canadian Bill of Rights, which contains
similar provisions dealing with the fundamental human right of protection
of the person,199
and which state that no law of Canada shall be construed or applied
so as to impose or authorise the imposition of cruel and unusual treatment
or punishment. I have also considered international instruments such
as the Universal Declaration of Human Rights which provides
that no one shall be subjected to cruel, inhuman or degrading treatment
or punishment;200
and the International Covenant on Civil and Political Rights (ICCPR)
which discusses cruel and unusual treatment or punishment.201
- I do not take these internationally protected rights lightly. However,
I am not satisfied that what Mr. Kubby describes amounts to cruel and unusual treatment or punishment,
or that if it does, his state is unwilling or unable to protect him
from such a risk. Accordingly, I am satisfied that what Mr. Kubby describes is not a risk of harm that is envisioned by the IRPA
or the international instruments.
- Finally, I have considered whether there is a danger that Mr. Kubby will be tortured if he returns to the US.
In section 97(1)(a) "Torture" has been described as:
… any act by which severe pain or suffering, whether physical
of mental, is intentionally inflicted on a person for such purposes
as obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or
a third person, or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation
of or with the consent or acquiescence of a public official or other
person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions.202
- What Mr. Kubby alleges does
not fit this definition. He is arguing he will be denied medication,
not that he would be tortured while incarcerated to extract information
by a state agent or with the acquiescence of the state. This is simply
not what was envisioned when the Convention Against Torture
was enacted. I find further, that the lawful sanctions exception applies
here as well.
- In summary, Mr. Kubby has not
established he has either a well founded fear of persecution under section
96 (IRPA), or a risk to his life under section 97 (IRPA).
DETERMINATION
- I find that Steven Wynn KUBBY is not a Convention refugee as he does
not have a well founded fear of persecution for a Convention ground
in the United States. I also find that the claimant is not a person
in need of protection in that his removal to the United States would
not subject him personally to a risk to his life or to a risk of cruel
and unusual treatment or punishment, and in that there are no substantial
grounds to believe that his removal to the United States will subject
him personally to a danger of torture. Accordingly, for the foregoing
reasons, the claim for refugee protection of Steven Wynn KUBBY is hereby
rejected.
- There is no reasonable basis upon which to conclude Ms.
Kubby faces a reasonable chance of persecution for a Convention reason
should she return to the US.
Likewise, she has not advanced any evidence of a risk to her life or
a risk of cruel and unusual treatment or punishment, or a danger of
torture.
- Because her husband's claim for refugee protection has been dismissed,
to the extent her claim is dependent upon his, her claim too must fail.
She has not established a well founded fear of persecution on the basis
of her membership in Mr. Kubby's family. Nor has she established any
evidence she would suffer harm for any other reason, independent of
his claim.
- Ms. Kubby alleges her children
might be taken away from her because of her husband's use of marihuana.203
Brooke was not taken into protective custody by state child welfare
authorities at the time the Kubbys were arrested in 1999, even though
there was an allegation of child abuse contained in the anonymous letter
that started the investigation.204
There is no independent evidence of persecution of the children, nor
any evidence of a risk of harm, and Ms.
Kubby confirmed that they have not been threatened. The claims of the
children must fail for the same reason.
- I find that Ms. Kubby and her daughters
are not Convention refugees as they do not have a well founded fear
of persecution for a Convention ground in the United States. I also
find that these three claimants are not persons in need of protection
in that their removal to the United States would not subject any of
them personally to a risk to their lives or to a risk of cruel and unusual
treatment or punishment, and in that there are no substantial grounds
to believe that their removal to the United States will subject them
personally to a danger of torture. Accordingly, for the foregoing reasons,
I conclude that Ms. Kubby and her
two daughters are not Convention refugees and they are not persons in
need of protection. I therefore reject their claims.
- Accordingly, the claims for refugee protection of Michele Renee KUBBY,
Brooke Kona KUBBY, and Crystal Bay KUBBY are hereby rejected.
Signed by: Paulah Dauns
Date: November 17, 2003
- Exhibit 3.1.
- Exhibits 1.1, 1.2, 1.3, and 1.4.
- Section 96 of Immigration and Refugee Protection
Act, S.C.
2001, c. 27.
- Section 97 of Immigration and Refugee Protection
Act, S.C.
2001, c. 27.
- Section 20 RPD
Rules SOR/2002-228 11 June 2002.
20. (1) The Division may require a party to participate at a conference
to discuss issues, relevant facts and any other matter in order to
make the proceedings more fair and efficient.
- Evidence of Steven Wynn Kubby, Transcript, March
7, 2003, page 23, lines 22 - 27; page 24, lines 23 - 39; page 25, lines
23 - 31; and page 44, lines 14 - 22.
- Compassionate Use Act, 1996, Health and
Safety Code paragraphs 11357 - 11362.9; Exhibit 11.2, page 1.
- Exhibit 17, page 1 – 3 and Exhibit 21, page
174 – 176, Anonymous Letter and Covering Memorandum
- Exhibit 21, page 212 – 280, Investigative
Reports, Placer County, July 2, 1998, and related documents.
- Evidence of Steven Wynn Kubby, Transcript, March
7, 2003, page 47, lines 31 – 37.
- Evidence of prosecutor Christopher Cattran, Transcript,
April 11, 2003, page 36, line 8.
- Evidence of prosecutor Christopher Cattran, Transcript,
April 11, 2003, page 45, lines 19 - 28.
- Infra, Footnote 41.
- Exhibit 21, pages 169 – 173 and pages 177
– 211, Search Warrant and Affidavit; see also Exhibit 24, video
of search of the Kubby residence and seizure of evidence.
- Exhibit 21, pages 281 – 287, Arrest and
Bail Documents.
- Exhibit 21, pages 288 – 291, Original Felony
Complaint. (Mr. Kubby –
Counts 1 – 7 and Ms. Kubby
– Counts 1 – 6).
- Exhibit 24.
- Evidence of prosecutor Christopher Cattran, Transcript,
April 11, 2003, page 33, lines 25 - 26.
- Evidence of prosecutor Christopher Cattran, Transcript,
April 11, 2003, page 35, line 35.
- Evidence of prosecutor Christopher Cattran, Transcript,
April 11, 2003, page 35, lines 13 - 15.
- Evidence of Patrick McCartney, Transcript, March
5, 2003, page 57, lines 18 - 21. [Public]
- Exhibit 44, [Filed post hearing ] Health Canada
"Personal Use Production Licence valid to 11/09/04 permitting a maximum
of 117 plants indoor, and 0 plants outdoor."
- Evidence of prosecutor Christopher Cattran, Transcript,
April 11, 2003, page 50, lines 26 - 30.
- Evidence of Steven Wynn Kubby, Transcript, April
8, 2003, page 99, lines 12 - 39.
- People v.
Mower, (2002) DJDAR 8025 (unanimous decision of all seven Justices
of the California Supreme Court), found at Exhibit 7, page 148 (full
text of the decision).
- Exhibit 11.1, Tab 4, pages 7 – 8, Minute
Order.
- Evidence of Christopher Cattran, Transcript,
April 11, 2003, page 42, lines 1 - 3.
- Evidence of Steven Wynn Kubby, Transcript, March
7, 2003, page 54, lines 20 - 24.
- Exhibit 11.1, Tab 4, page 7, Minute Order.
- Ibid, pages 9 - 11 and Exhibit 21, pages
44 – 45.
- Exhibit 21, pages 77 – 89. Motion to Declare
Offenses to be Misdemeanors and to Limit Terms of Probation.
- Evidence of Michele Renee Kubby, Transcript,
March 6, 2003, page 88, line 33 [Public]; see also Claimant's Submissions
– July 30, 2003, at page 8 referring to the trial transcript April
6, 2001, marked as Exhibit 39(B).
- Supra, footnote 7.
- Exhibit 41, [Filed post-hearing] P. v.
Kubby CA 3, 6/23/03, where
the Court of Appeal reversed the trial judge's decision to reduce possession
of mescaline to a misdemeanour. The trial judge ruled that because
possession of peyote was a "wobbler" (the US
equivalent of a "hybrid offence") and the more serious of the two crimes
–possession of mescaline should be reduced to a misdemeanour as
well as the peyote charge. The Court of Appeal held that the Rules
of statutory interpretation do not permit a Court to rewrite section
11350 and ignore its plain language, which unambiguously makes possession
of mescaline a felony. The judgment was modified to reflect that the
conviction is a felony. Except as modified, the judgment was affirmed.
- Exhibit 21, page 68. Letter from Placer County
Probation Department.
- Exhibit 21, pages 53 – 67. San Francisco
Electronically Monitored Home Detention Program Information.
- Exhibit 39(a), [Filed post-hearing] Transcript
of Court Proceedings – April 27, 2001, page 3, line 28 and page
4, line 1.
- Exhibit 21, pages 69 – 71. San Francisco
Home Detention Applicant Instructions.
- Exhibit 11.1, tab 4, pages 10 - 11.
- Evidence of Christopher Cattran, Transcript,
April 11, 2003, page 45, lines 22 - 40.
- Exhibit 25, page 662, People v.
Steven Wynn Kubby, California Court of Appeal, C038631, (Kolkey,
Blease, Hull), J. Kolkey speaking for the Court. (Case referred to Estate
of Scott, 150 Cal. App. 2d at page 592).
- Evidence of prosecutor Christopher Cattran, Transcript,
April 11, 2003, page 44; see also Exhibit 17, pages 11 – 22.
Proposition 36 – Substance Abuse and Crime Prevention
Act of 2000 was passed by the electorate on November 7, 2000, and
regulates how the California criminal justice system will deal with
substance abusers who violate the criminal laws of California. The
statutes enacted by Proposition 36 mandate probation and drug treatment
for defendants convicted of a "non-violent drug possession offence."
Incarceration is prohibited as a condition of probation when the defendant
is first sentenced. Mr. Kubby
had hoped the bar against incarceration would apply in his case. It
did not apply to Mr. Kubby because
it only applied to those who committed an offence after July 1, 2001. Since
Mr. Kubby
was charged in 1999, he was not entitled to sentencing under Proposition
36 provisions. Any new convictions would be subject to these provisions.
- Evidence of Michele Renee Kubby, Transcript,
March 6, 2003, page 90, lines 7 – 20. [Public]
- North American Free Trade Agreement Between the
Government of Canada, the Government of the United Mexican States and
the Government of the United States of America, December 17, 1992, [1994]
Can. T.S. no. 2, Arts. 1015(4)(d), 1017, Annex
1001.1b-1, Art. 5(h), Annex 1001.1b-2,
Art. J019, Annex 1001.2b.
- Evidence of Steven Wynn Kubby, Transcript, April 8, 2003, page 32, line 34; see also Exhibit 21, page 46.
- Exhibit 39(a), [Filed post-hearing] Transcript
of Court Proceedings – April 27, 2001.
- Exhibit 21, pages 72 – 75. Points and
Arguments in support of Drug Treatment in lieu of Punishment.
- Evidence of Michele Renee Kubby, Transcript,
March 6, 2003, page 94, line 29 [Public]; see also evidence of Steven
Wynn Kubby, April 8, 2003 page 61, line 39, and see Exhibit 39(a), [Filed
post-hearing] Transcript of Court Proceedings – April 27, 2001.
- United States v.
Oakland Cannabis Buyers' Cooperative et al., (2000) Certiorari
to the USCA
for the 9th
Circuit, USSC,
found at Exhibit 7, page 125 (full text of the decision).
- Evidence of prosecutor Christopher Cattran, Transcript,
April 11, 2003, page 44, lines 9 - 11.
- Evidence of Michele Renee Kubby, Transcript,
March 6, 2003, page 96, line 24 [Public], see also Exhibit 21, page
29: Travel Permit, dated 4-6-01 which says "subject is directed
to report to probation upon return; to return by 4-27-01." And
see: Exhibit 25, page 659" The People vs.
Kubby CA 3, at page 664,
where Judge Kolkey held that "he was only granted permission to go to
Canada and to return on April 27, 2001. In no way did that give defendant
permission to ignore his subsequent surrender date of July 20, 2001
and remain in Canada."
- Exhibit 17, pages 658 – 695.
- Exhibit 17, pages 663 – 671 and Exhibit
2.1, Bench Warrant.
- Evidence of prosecutor Christopher Cattran, Transcript,
April 11, 2003, page 45, lines 2 - 3.
- Evidence of Michele Renee Kubby, Transcript,
March 6, 2003, page 116, line 14. [Public]
- Evidence of Steven Wynn Kubby, Transcript March
7, 2003, page 23, lines 22 & 23.
- Exhibit 35.
- Exhibit 11.1, tab 5, pages 28 – 29, Letter
from Dr. Connors dated August
8, 2002.
- Evidence of Dr. Connors, Transcript, April 11, 2003, page 27, line 40 and page 28, lines
1 & 2.
- Evidence of Dr. Connors, Transcript, April 11, 2003, page 12, lines 10 – 20.
- Exhibit 11.1, tab 2, pages 3 – 4, Letter
from Dr. DeQuattro dated February
4, 1999; Exhibit 11.1, page 41, Letter from Dr. Connors dated August 16, 2002.
- Evidence of Dr. Connors, Transcript, April 11, 2003, pages 14, lines 39 – 40 and
page 15, line 1.
- Evidence of Dr. Connors, Transcript, April 11, 2003, page 17, lines 25 - 29.
- Exhibit 17, page 4 and 5, (Letter from Dr. DeQuattro, February 4, 1999) and Exhibit 11.1, page 41 (Letter from
Dr. Connors, August 16, 2002),
Exhibit 9, videotape.
- Exhibit 11.1, tab 2, page 3 (Letter from Dr. DeQuattro, February 4, 1999); Exhibit 24, videotaped interview of Dr. DeQuattro.
- Evidence of Dr. Connors, Transcript, April 11, 2003, page 9, lines 1 & 2.
- Evidence of Dr. Connors, Transcript, April 11, 2003, page 15, line 1; Exhibit 24, videotaped
interview of Dr. Connors.
- Evidence of Dr. Connors, Transcript, April 11, 2003, page 18, lines 27 - 40 and page
19, lines 1 - 16; Exhibit 24, videotape of interview of Dr. Connors.
- Exhibit 3.6, Neuropsychological Evaluation of
Steve Kubby on April 15, 1999 by Dr. Dorothy Weiss, Clinical Neuropsychologist, at page 5.
- Evidence of Patrick McCartney, Transcript, March
5, 2003, page 14, lines 35 - 38. [Public]
- Exhibit 17, pages 6 - 10.
- Exhibit 45, [Filed post hearing] "Cannabinoids:
Potential Anticancer agents", Nature, October 2003, page
745, by Manuel Gugman.
- Supra, footnote 7 .
- Exhibit 11.2, pages 1 - 9, California Health
and Safety Code, sections 11357 – 11362.9.
- See however Bill 420 which set out guidelines
to assist patients, their caregivers and physicians, at Exhibit 4, infra,
footnote 77.
- Exhibit 21, page 140.
- Exhibit 43, [Filed post hearing] Bill 420, Senate
Bill introduced by Senator Vasconcellos February 20, 2003 and is an
Act to add Article 2.4 (commencing with Section 11362.7) to
Chapter 6 of Division 10 of the Health and Safety Code, relating
to controlled substances. This Bill passed the Assembly 42 to 32 and
the State Senate 24 to 14.
- Exhibit 43, page 5.
- Exhibit 43, page 8.
- Exhibit 43, page 12.
- Exhibit 43, page 12.
- Controlled Substances Act, 84 Stat.
1242, 21 U.S.C. 801.
- Evidence of Judge James P. Gray, Transcript,
April 10, 2003, page 52, lines 31 - 37.
- Supra, footnote 25, People v.
Mower.
- Evidence of Patrick McCartney, Transcript, March
6, 2003, page 69, lines 2 – 3. [Public]
- Evidence of Steven Wynn Kubby, Transcript, March
7, 2003, page 59, lines 17 – 20.
- Supra, footnote 49.
- Exhibit 6, United States vs.
Oakland Cannabis Buyers' Cooperative, Department of Justice Reply
Brief, pages 40-45.
- Ibid., page137.
- Ibid., page 146.
- Ibid., page 147; see also: Exhibit 7,
page 122, GayLesbian News "Reefer Madness: The DEA Raids WeHo Cannabis
Club" Karen Ocamb, stating the USSC "ruled 8 to 0 that the club
itself could not claim the ‘medical necessity' exception defense
traditionally afforded individual defendants" which suggests the Court
saw distributors acting out of choice to assist suffering and not from
medical necessity as patients do.
- Exhibit 27, tab 2, page 40, State-By-State
Medical Marijuana Laws; Marijuana Policy Project, February 2001,
Richard Schmitz and Chuck Thomas; see also Exhibit 39 (a), [Filed post
hearing], "Pot Grower Spared prison time - medical marijuana advocates
claim victory in pivotal Rosenthal sentencing". San Francisco Chronicle,
June 4, 2003.
- Exhibit 11.2, tab 3, page 20 – 24, Washington
State Medical Marijuana Legislation.
- Exhibit 27, tab 2, page 8: the state are: AK,
AZ, CA,
CO, HI,
ME, NV, OR, WA. Thirty-five others have enacted legislation recognising
marihuana's medicinal value. See also: Exhibit 26, Times article titled:
"Is America Going to Pot?", November 4, 2002, pages 35
- 46.
- Ibid.
- Exhibit 26, Times article titled: "Is America
Going to Pot?", November 4, 2002, pages 35 - 46.
- Exhibit 17, pages 313 – 395.
- Exhibit 26, Times article titled: "Is
America going to Pot?”, November 4, 2002, pages 35 – 46.
- Ibid., at page 38.
- Exhibit 27, tab 2, pages 12 – 13, Washington
State Medical Marijuana Legislation.
- Ibid., at page 12.
- Exhibit 43, [Filed post hearing] page 16.
- Exhibit 43, [Filed post hearing] page 36.
- Ibid., page 37.
- Exhibit 43, page 65.
- [Filed post hearing] Steven Wynn Kubby's submissions
filed October 27, 2003, at page 3.
- Supra, footnote 3.
- Adjei v.
Canada (Minister of Employment and Immigration), [1989] 2 F.C.
680; (1989), 7 Imm. L.R. (2d) 169 (C.A.).
- Evidence of Steven Wynn Kubby, Transcript, April
8, 2003, page 72, lines 25 – 28.
- Evidence of Michele Renee Kubby, Transcript,
March 6, 2003, page 107, line 40 and page 108, lines 1 – 3 and
line 17. [Public]
- Exhibit 39 (b).
- Exhibit 39, pages 35 – 43.
- Exhibit 42, page 3.
- Exhibit 42, page 4.
- Exhibit 11.2, page 151.
- Exhibit 44 [Filed post hearing] Personal
Use Production Licence.
- Exhibit 24, television news report re: Kubby
criminal charges in Sechelt, Canada.
- Canada (Minister of Employment and Immigration)
v. Satiacum (1989), 99 N.R.
171 (F.C.A.).
See the anlysis of the issue of state protection below.
- Ibid.
- Ibid.
- Zolfagharkhani v.
Minister of Employment and Immigration [1993] 3 F.C.
540 (F.C.A.).
- Evidence of William Gary Panzer, Transcript
April 15, 2003, page 54, lines 13 – 18.
- Claimant's submissions July 30, 2003, page 26.
- For example, Exhibit 39, page 15, lines 20 -
21.
- Exhibit 39(a) [Filed Post-Hearing], Transcript
of evidence of court proceeding, April 6, 2003, page 11, lines 26 –
28, and page 12, line 1.
- Ibid., at page 12, lines 23 –
28.
- Claimant's submissions, July 30, 2003, page
17.
- Evidence of Daniel T. Satterberg, Transcript,
April 16, 2003, page 23, lines 14 – 40 and page 24, lines 8 -
13.
- Evidence of Angel McCleary Raich, Transcript,
April 10, 2003, page 6, line 7.
- Evidence of Angel McCleary Raich, Transcript,
April 10, 2003, page 19, and Exhibit 25, Declaration of Angel McCleary
Raich.
- Evidence of Daniel T. Satterberg, Transcript,
April 16, 2003, page 23 – 25.
- Exhibit 11.2, tab 4, page 25.
- Exhibit 11.2, tab 4, page 26.
- Evidence of Steven Wynn Kubby, Transcript, April
8, 2003, page 101, lines 21 – 28.
- Exhibit 27, Compassion and Common Sense,
G. Uelmen, San Jose Mercury News, July 23, 1999, tab 13, pages
134 – 135.
- Claimant's submissions, July 30, 2003, page
29.
- Supra, footnote 41 .
- UNHCR Handbook on Procedures and Criteria
for Determining Refugee Status under the 1951 Convention and the
1967 Protocol relating to the status of Refugees, reedited Geneva, January
1992, page 15, paragraph 56, as cited in CRDD
V99-02159, Dauns, Vanderkooy, October 6, 1999 (reasons signed October
20, 1999).
- People v.
Mower, (2002) DJDAR 8025; United States v.
Oakland Cannabis Buyers' Cooperative et al. (2000) Certiorari to
the USCA for the 9th
Circuit, USSC; People v. Steven
Wynn Kubby, California Court of Appeal, C038631; US
v. Edward Rosenthal, CR02-0053CRB, US District Court
for the Northern District of California, Exhibit 40, herein and Exhibit
43.
- The United States Constitution states
in it's Preamble: "We the People of the United States, in order to form
a more perfect Union, establish Justice, insure domestic Tranquility,
provide for the common defence, promote the general Welfare, and secure
the Blessings of Liberty to ourselves and our Posterity, do ordain and
establish this Constitution for the United States of America.
- Jacobson v.
Massachusetts, 197 U.S.
11. 22 (1905).
- John P. Walters, Director, White House Office
of National Drug control Policy, often referred to as the "Drug Czar".
- Exhibit 11.2, tab 4, page 27.
- Canada (Attorney General) v.
Ward, [1993] 2 S.C.R.
689, 103 D.L.R. (4th)
1, 20 Imm. L.R. (2d) 85 (SCC),
page 722.
- Ibid., page 725.
- Ibid., page 726.
- Canada (Minister of Citizenship and Immigration)
v. Smith (T.D.) [1999] 1
F.C. 310, paragraph 23.
- M.C.I.
v. Kadenko, Ninal (F.C.A.,
no. A-388-95), Hugessen, Décary, Chevalier, October 15, 1996. Reported:
Canada (Minister of Citizenship and Immigration) v.
Kadenko (1996), 143 D.L.R. (4th)
532 (F.C.A.).
- M.E.I.
v. Villafranca, Ignacio (F.C.A.,
no. A-69-90), Hugessen, Marceau, Décary, December 18, 1992. Reported: Canada
(Minister of Employment and Immigration) v.
Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.).
- Supra, footnote 118.
- Rajudeen v.
Canada (Minister of Employment and Immigration) (1984), 55 N.R.
129 (F.C.A.).
- Surujpal v.
Canada (Minister of Employment and Immigration) (1985), 60 N.R.
73 (F.C.A.).
- Adjei v.
Canada (Minister of Employment and Immigration), [1989] 2 F.C.
680; (1989), 7 Imm. L.R. (2d) 169 (C.A.), paragraph 8.
- Supra, footnote 118.
- Supra, footnote 118, at page 5.
- Evidence of Judge James P. Gray, Transcript,
April 10, 2003, page 35, lines 12 – 17; page 41, lines 16 –
26; page 43, lines 36 – 40; page 44, lines 3 – 5; page 47,
lines 22 – 30.
Evidence of Angel McCleary Raich, Transcript, April 10, 2003, page
23, lines 28 – 40, page 24, lines 1 – 11, page 25, lines
39 - 40; page 26, lines 1 - 2.
Evidence of Patrick McCarthy, Transcript, March 5, 2003, page 20,
lines 29 - 40; page 21, lines 1 – 16. [Public]
Evidence of William Gary Panzer, Transcript April 15, 2003, page
54, lines 18 – 22.
- Evidence of Patrick McCarthy, Transcript, March
5, 2003, page 55, line 37, page 56, line 30, page 57, lines 9 –
11. [Public]
- Exhibit 21, pages 138 – 139.
- Exhibit 31.
- Exhibit 43, [Filed post hearing] Minister's
Counsel's evidence, filed October 15, 2003, page 1.
- Evidence of Christopher Cattran, Transcript,
April 11, 2003, page 53, line 24.
- Evidence of Christopher Cattran, Transcript,
April 11, 2003, page 71, lines 11 – 30, "arbitrary and capricious
searches may be taken before the courts," line 13.
- Claimant's submissions, July 30, 2003, page
20.
- Exhibit 24.
- People v.
Mower, (2002) DJDAR 8025 (unanimous decision of all seven Justices
of the California Supreme Court), found at Exhibit 7, page 148 (full
text of the decision).
- Supra, footnote 29 (Court Minute Order)
and footnote 31 (Probation Order).
- Supra, footnote 161.
- Supra, footnote 4.
- Supra, footnote 152.
- Article 1 of the Convention against Torture
and other Cruel, Inhuman or Degrading Treatment of Punishment (the
"CAT”), Can. T.S. 1987 no. 36;
G.A. res.
39/46 [annex, 39 U.N. GAOR Supp. (no. 51)
at 197, U.N. Doc. A/39/51 (1984).
- Exhibit 43, page 9.
- Evidence of Dr. Connors, Transcript, April 11, 2003, page 8, lines 1 – 20.
- Evidence of Angel McCleary Raich, Transcript,
April 10, 2003, page 14, lines 23 – 24.
- Evidence of Dr. Connors, Transcript, April 11, 2003, page 13, lines 6 – 8.
- An online medical dictionary published by the
Department of Medical Oncology at the University of Newcastle upon Tyne
defines marinol as "an appetite stimulant composed of THC, the active
ingredient in marijuana." (http://cancerweb.ncl.ac.uk/cgi-bin/omd?marinol)
- See also Bill 420 which may affect what a jail
is willing to do for medical marihuana patients.
- Exhibit 39(a), [Filed post-hearing] Transcript
of Court Proceedings – April 27, 2001page 15, lines 24 - 28.
- Ibid., page 16, lines 8 – 10.
- Exhibit 17, page 193.
- Ibid.
- Evidence of Judge James P. Gray, Transcript,
April 10, 2003, p. 51, lines 14 - 17.
- Ibid., at page 51, line 24, also see
footnote 140.
- Evidence of William Gary Panzer, Transcript,
April 15, 2003, page 57, lines 5 - 8.
- Ibid., page 60, lines 3 - 7.
- Evidence of Daniel T. Satterberg, Transcript,
April 16, page 37, lines 1 – 40.
- Evidence of Christopher Cattran, Transcript,
April 11, 2003, page 42, line 3.
- Jones v.
Great Western Railway Co.
(1930), 47 T.L.R. 39 at 45, 144 L.T. 194 at 202 (H.L.).
- Exhibit 7, page 14.
- Exhibit 6, pages 4, 6, 7 and 8.
- Exhibit 7, page 15.
- Evidence of Michele Renee Kubby, Transcript,
March 6, 2003, page 86, lines 9 – 16. [Public]
- Evidence of Michele Renee Kubby, Transcript,
March 6, 2003, page 82, lines 5 – 11. [Public]
- Evidence of Michele Renee Kubby, Transcript,
March 6, 2003, page 82, lines 10 - 11. [Public]
- Exhibit 45 demonstrates scientific research
regarding the use of cannabis for cancer patients is on-going.
- Exhibit 39(a), Transcript of proceedings, April
6, 2001, Superior Court of the State of California, page 13.
- Exhibit 11.2, page 154, San Jose Mercury News,
July 19, 2002, "Medicinal Marijuana is Legal, Court Says"
by Lori Aratani.
- Exhibit 11.2, page 195, "Medical Pot Patients
Afforded Same Legal Protections as Other Prescription Drug Users, California's
Top Court Rules”, NORML News, July 24, 2002.
- Charter of Rights and Freedoms, Section
7.
- Canadian Bill of Rights 1960, c. 44, Sections 1 and 2.
- Universal Declaration of Human Rights,
G.A. res.
217A (III), U.N. Doc. A/810 (1948), Article 5.
- International Covenant on Civil and Political
Rights, G.A.
res. 2200A (XXI), 21, U.N. GAOR Supp. (no. 16)
at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force
March 23, 1976. Ratified by Canada in 1976.
- Supra, footnote 169.
- Evidence of Michele Renee Kubby, Transcript,
March 6, 2003, page 83, lines 32-39 and page 84, line 1. [Public]
- Exhibit 17, page 3.
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