ACTIVIST TAKES POT LAW TO TOP COURT

Test of rare defence seeking 'jury nullification'; Medical marijuana
crusader admitted providing drug, but argued his only option was to
break the law

JANICE TIBBETTS, CanWest News Service

An ill Alberta man who admits to growing and distributing marijuana
for medicinal purposes will challenge his drug trafficking conviction
in the Supreme Court today, in a test of how far juries can go in
acquitting people who openly break the law.

A lawyer for Grant Krieger, a longtime medical marijuana crusader,
will square off against Ottawa over a rare

legal safety valve, called jury nullification, which allows jurors to
override a law in exceptional cases.

Krieger, 51, was sentenced to a day in jail after being caught with
29 marijuana plants seven years ago. The Calgary man, who uses pot to
control his multiple sclerosis symptoms, runs a "compassion club"
that sells or gives marijuana for medical purposes.

He confessed at his trial, but invoked the seldom-successful defence
of necessity, arguing he had no choice but to break the law to ensure
a reliable supply of pot for patients who have federally approved
exemptions to use marijuana.

The judge in the case instructed the jurors to convict Krieger,
despite strong indications that two jurors wanted to acquit him.

"Jury nullification runs contrary to the rule of law," federal
lawyers wrote in a legal brief submitted to the Supreme Court. "It is
animated by sentiment and sympathy rather than logic and consistency."

Although judges are supposed to encourage jurors to stick to the
letter of the law, Krieger's lawyer, John Hook, argues the Supreme
Court formally recognized jury nullification in the 1988 acquittal of
abortion doctor Henry Morgentaler.

At the time, the bench described the jury's power as "the citizen's
ultimate protection against oppressive laws and the oppressive
enforcement of the law."

But 13 years later, in the 2001 case of Saskatchewan farmer Robert
Latimer, the Supreme Court took a narrower view, refusing to clear
Latimer of a minimum mandatory life sentence for killing his severely
disabled daughter.

"Saying that jury nullification may occur is distant from
deliberately allowing the defence to argue it before a jury or
letting a judge raise the possibility of nullification in his or her
instructions to the jury," the court ruled.

Krieger is appealing his defeat in the Alberta Court of Appeal, where
Chief Justice Catherine Fraser dissented on grounds the jury in
Krieger's case didn't understand it had the final call on his guilt
or innocence.

Krieger, who lives on a disability pension, will fly to Ottawa for
the Supreme Court hearing, after supporters raised money for him to go.