The Little Brown Reader

CANADA DENIES REFUGEE STATUS TO US MEDICAL MARIJUANA EXILE

Drug War Chronicle
http://stopthedrugwar.org/chronicle/315/stevekubby.shtml

CANADA DENIES REFUGEE STATUS TO US MEDICAL MARIJUANA EXILE

Prominent American medical marijuana activist Steve Kubby
(http://www.kubby.com), who fled the US saying an impending jail sentence
would cause his death, has been denied refugee status by the Canadian
Immigration and Refugee Board. An adrenal cancer patient, Kubby has smoked a
dozen joints a day for year, which he says keeps him alive, and would have
been denied that medication while serving a misdemeanor sentence in
California. But Kubby did not have a well-founded fear of being persecuted
or tortured, nor was there any risk to his life if he returned to his home
state of California, the board ruled Monday.

He has said he will appeal, but the clock is ticking for Kubby and his
family, whose requests for refugee status were also denied. Under Canadian
law, he has 15 days to apply to the Supreme Court for a review of the
decision, and if the court chooses not to review his case, he and his family
would have to leave the country within 30 days. One option would be to apply
for a "pre-removal risk assessment," which would force immigration officials
to once again investigate whether he would face "cruel or unusual punishment
or risk to life" if returned to the US.

Steve Kubby Kubby, the 1998 Libertarian Party nominee for governor of
California, fled to Canada with his family in 2001 after being found guilty
of possession of a small amount of psychedelic mushrooms and peyote in his
home state. That conviction arose from a medical marijuana raid on Kubby's
home. The state could not convict on the marijuana charges -- California law
allows for its medical use -- but did manage to nail Kubby for the 'shrooms.
He was prepared to serve a 120-day sentence provided he could have access to
medical marijuana. But local authorities in California refused to allow him
to have his medicine in jail, so Kubby ran for his life to what he hoped
would be a friendlier clime.

He and his family entered Canada on tourist visas, but were detained by
Canadian immigration authorities after newspaper stories featured their
cause and described them cultivating a medical marijuana garden at their
home in Sechelt, British Columbia, a short ferry ride up BC's Sunshine Coast
from Vancouver. At that point, Kubby, his wife Michelle, and their two
daughters applied for asylum as refugees fleeing persecution by American
drug warriors. Since then, they have remained in Canada, where they produce
a program on Pot-TV (http://www.pot-tv.net), a web-based marijuana reform
broadcaster funded by marijuana seed magnate Marc Emery. They also received
a permit from Health Canada to cultivate marijuana for Kubby's medicinal use
are currently growing 117 plants, Kubby told the Toronto Globe & Mail.

In addition to the fear of persecution because of his well-known advocacy of
medical marijuana, Kubby argued that medical marijuana users were not
protected in California, and that he would die if deprived of his medicine.
The Immigration and Refugee Board, however, ruled that Kubby was not and
would not be persecuted, that California law in fact protects medical
marijuana users, and that he would not suffer serious health effects if
incarcerated without access to medical marijuana.

In an opinion written by board member Paulah Dauns, the board noted that
Kubby had not been convicted on medical marijuana charges, but on other drug
charges, and that California law protected him. "In effect, the process
worked, as it was designed to," she wrote. "He argues that a medical
marijuana patient should be protected from persecution. What he has
demonstrated is that in fact, they are." Dauns also wrote that while there
was little doubt marijuana relieved Kubby's cancer symptoms, there was no
evidence that depriving him of cannabis while incarcerated on the California
'shroom charge would kill him, despite testimony from Dr. Joseph Connors of
the British Columbia Cancer Agency, who told the court during an April
hearing that Kubby would die within four days if denied access to marijuana
for his condition. Kubby was not a refugee, wrote Dauns, but a "fugitive
from justice."

And while Kubby argued that his use of marijuana was akin to a diabetic's
use of insulin, Dauns was having none of that, either. "Insulin has been
approved by the medical community as a treatment, whereas marijuana has
not," she said. "The research on the benefits of marijuana is woefully
inadequate and inconclusive, making a comparison of these two treatments
illogical," she wrote.

The Kubby case is the first of a handful of similar "reefer refugee" cases
to be decided in Canada. Two Northern California men, Kenneth Hayes and
Steve Tuck, who fled federal marijuana charges related to California medical
marijuana grows, have cases pending before the author of Monday's decision,
board member Dauns. Some advocates had hoped Kubby, with his strong health
argument, had the strongest of any of the pending cases.

Canadian Kubby supporters denounced the decision. "This is yet another
example of the harms of cannabis prohibition," said Philippe Lucas, director
of Canadians for Safe Access (http://www.safeaccess.ca), a medical marijuana
defense organization based on its southern sister, Americans for Safe Access
(http://www.safeaccessnow.org). "The Kubbys are kind contributors to the
social well-being of Canadians -- under any other circumstances, Canada
would welcome this reverse brain-drain. It is only through the perversion of
justice caused by prohibition that a loving family like the Kubbys could be
condemned to an uncertain future at the hands of American prosecutors."

But it wasn't only abstract prohibition that had Lucas and other Canadian
activists irked, it was the harsh slap in the face from a traditionally
refugee-friendly country. "Are we as a nation really so quick to take a
chance on Steve Kubby's health?" asked Lucas. "Shouldn't a modern liberal
democracy like Canada err on the side of social justice when a man's life is
on the line? If Steve Kubby should suffer the same fate as Peter McWilliams
-- who died choking on his own vomit while being denied his medicinal
cannabis after his arrest -- the hands of those who denied his refugee claim
will be forever stained in his blood."

"Today, I'm ashamed of being a Canadian," concurred Tim Meehan, national
director of the anti-prohibition wing of the New Democratic Party
(http://www.ndpot.ca). "Here at home, our government constantly reminds us
of how important the refugee protection system is. Canada's reputation is
built on it. However, when they subject people like Steve Kubby and his
family to institutional prejudice because of their choice of medical
treatment, and are more concerned about angering a trading partner than
saving a human life, that demonstrates our government's priorities are very
seriously out of alignment. I hope Canadians remember that in the upcoming
federal election," Meehan added.

Visit http://www.mapinc.org/alert/0282.html for a letter-writing alert to
help Steve Kubby.

Read a summary of the decision at:
http://www.irb.gc.ca/en/decisions/kubby/va2_01374_e.htm#summary

Read the decision in full at:
http://www.irb.gc.ca/en/decisions/kubby/va2_01374_e.htm

Or to get right to the paragraphs where Dauns lays out her reasoning, go to:
http://www.irb.gc.ca/en/decisions/kubby/va2_01374_e.htm#determination