MARIJUANA USER, GROWER BRINGS RARE LEGAL PLOY TO OTTAWA

OTTAWA -- An ill Alberta man who admits to growing and distributing
marijuana for medicinal purposes will challenge his drug trafficking
conviction in Supreme Court today in a test of how far a jury 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 rule against a law in
exceptional cases.

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

He confessed at his trial but used 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 two jurors wanted to acquit him. "Jury
nullification runs contrary to the rule of law," federal lawyers
wrote in a legal brief submitted in 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 case of Saskatchewan farmer Robert
Latimer, the Supreme Court took a narrower view. "The law cannot
ignore jury nullification," said the 2001 ruling that refused 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."

Krieger is appealing his defeat in the Alberta Court of Appeal. It
ruled that, although trial judge Paul Chrumka made a mistake in
ordering the jury to convict, a new trial would result in the same verdict.

Chief Justice Catherine Fraser dissented on the grounds the jury in
Krieger's case didn't understand it had the final call on his guilt
or innocence.

Fraser noted judges have no obligation to raise the possibility of
jury nullification because "a criminal justice system would count for
little if jurors were free to simply ignore the law or rely on
improper myths and stereotypes in decision making."

But the judge in Krieger's case went too far in telling jurors they
had no choice but to convict, Fraser concluded.

The case reaches the Supreme Court automatically because of the
dissent in the lower court.

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