BETWEEN THE SPIRIT AND THE LETTER OF THE LAW

A Convicted Pot Activist Whose Appeal Is Heading to the Top Court Says
the Jurors, Not the Judge, 'Should Have Had the Final Word'

A drug-trafficking conviction handed to Alberta medicinal-marijuana
activist Grant Krieger will come under the scrutiny of the Supreme
Court of Canada tomorrow.

But Mr. Krieger's appeal is likely to shed more light on legal issues
concerning judges' instructions to juries than it will on the merits
of the healing powers of cannabis.

The case stems from a 1999 raid on Mr. Krieger's house, where 29
marijuana plants were seized. Mr. Krieger, who has multiple sclerosis,
said he used the pot to alleviate his pain. He also supplied the
marijuana to others who used it for medicinal purposes.

In December of 2003, at the end of a trial on the trafficking charge,
Mr. Justice Paul Chrumka of Alberta's Court of Queen's Bench told jury
members they had no choice but to convict Mr. Krieger, who had
essentially admitted to the crime but felt he had done nothing wrong.

Two jurors were so conflicted about the case that they asked to be
excused, but the judge refused and sent them back with directions that
amounted to an order to convict.

The jury then found Mr. Krieger guilty, and Judge Chrumka sentenced
him to one day in jail. He could have faced up to a life sentence.

Last June, the Alberta Court of Appeal said the judge shouldn't have
given such explicit instructions, but upheld the conviction because,
it said, a new trial would likely come to the same conclusion.

A key issue that will go before the Supreme Court judges is a concept
known as "jury nullification." That happens when a jury disagrees with
a law it finds offensive and refuses to render a judgment that follows
that law.

Canadian juries have acted that way in several cases, including the
trials of Dr. Henry Morgentaler. He was acquitted of performing
illegal abortions by several juries in the 1970s, despite evidence he
had broken the law.

It's a thorny topic, however, and the Supreme Court has previously
taken "a kind of nudge-nudge, wink-wink approach to it," said Alan
Young, a law professor at Osgoode Hall Law School in Toronto.

On the one hand, the Supreme Court has said lawyers cannot explicitly
tell jurors in a trial that they should make a decision in direct
contradiction of a law.

On the other hand, jurors can legitimately rule against a law, if they
feel strongly.

"It's important that a judge doesn't have the power to tell a jury
'you can't do this,' " Prof. Young said. "It's an important power in
[a jury's] back pocket in these morally controversial areas."

The kind of instructions Judge Chrumka made to the jury in the Krieger
case, that they must convict, "is probably going too far," said
Sanjeev Anand, a law professor at the University of Alberta.

One advantage of jury nullification, he said, is that in the past it
has sometimes prompted governments to rethink unjust laws and make
crucial legal changes.

In Britain, for example, capital punishment was eliminated after
juries refused to convict in cases where the defendant would be
executed for relatively minor crimes, Prof. Anand said.

"The jury necessarily injects common sense into the proceedings -- a
community sense of what's right and wrong. If we restrict [jury
nullification] too much, I fear that the criminal justice system may
be brought into disrepute in the eyes of the community." Toronto
lawyer Paul Burstein said medical marijuana cases are "ripe for
nullification," because, "as Canadians, we're a pretty sympathetic
bunch" when it comes to the suffering of the ill. Consequently the
Supreme Court's decision could have considerable impact on future
cases.In an interview, Mr. Krieger acknowledged that he probably is
guilty "by the letter of the law." But, "in the spirit of the law, I'm
not guilty" and a jury should have been allowed to give an independent
decision, without its hand being forced by the judge, he added.

"[The judge] took away independent choice from the jury. They should
have had the final word," he said.

Mr. Krieger, who lives on a modest Canada Pension Plan income, said he
can not attend the Supreme Court session in Ottawa because legal aid
will pay only to send his lawyer to the hearing.

He has campaigned for the medicinal use of marijuana for years and
first gained notoriety in 1996, when he was arrested in Amsterdam
after trying to transport a kilogram of marijuana to Canada.

In the late 1990s he was convicted twice after being found guilty of
trafficking the drug, receiving a $500 fine in one case and an
18-month suspended sentence in another. In 2001 he spent seven days in
jail for breaching his probation on one of the drug
convictions.

His efforts have helped change the laws, which now make it legal for
people to possess marijuana for their personal medicinal purposes.
They can grow their own or buy it from designated growers or the government.

But Mr. Krieger said the government production, which comes from a
decommissioned mine, is of poor quality for medicinal purposes.

He said there needs to be far more research done on medicinal uses of
marijuana, looking at how it is grown and how it should be ingested to
best treat illnesses.

Despite supportive legal rulings, there are barriers for people who
want to use medicinal marijuana, he said. Even though Mr. Kreiger has
the right to grow his own pot, he can't do so because he wouldn't be
able to get house insurance. And "there are people who are lying in
beds dying who can't grow their own."