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.

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