American Refugees:

WHAT IS IT ABOUT DEAD YOU DON'T UNDERSTAND?

On Monday we finally learned that the Refugee Protection Division denied
the Kubbys the protection of Canada. See
http://www.irb.gc.ca/en/decisions/kubby/va2_01374_e.htm

The Kubby case in California was rather complex legally. They were
acquittedon all of the marijuana charges on which the search warrant was
based, butthe judge nonetheless upheld the validity of the search.

During the search the police claimed to have found an unusably small
quantity of psilocybin mushroom and peyote cactus in a canister in a
drawerin the guest bedroom. Inasmuch as Steve has written a book on
psychedelicsit is plausible but unproven that they belong to him, but here
is where isgets weird.

He was not convicted of possession the natural substances which the police
claimed to have found, but of possession of psilocyn and mescaline, the
active ingredients which the police extracted in their lab.

The judge ruled that possession of the mescaline was a misdemeanor, but
Attorney General Lockyer appealed that decision and got it changed to a
felony. Steve could not fight that ruling because he was in Canada.

Now, on the basis of that felony, California wants to lock Steve up for
three months, and without cannabis he will die within days.

That last point is really the key. Twice Steve has been locked up without
cannabis, and both times he nearly died in great agony.

Despite these experiences and his having been diagnosed by leading cancer
specialists in California and Canada, the Refugee Protection Division
ruled, "his removal to the United States would not subject him to a risk to
his lifeS" ( para 236 )

I was obviously very disappointed by the ruling, but I was also somewhat
surprised. When I heard that the opinion was 71 pages long, I did not think
that it would have been necessary to go to such lengths to say that the US
is a democracy with an independent judiciary so he should just go home.

Understandably, Canada does not want to be in the position of second
guessing the political and judicial systems of democratic countries,
especially that of its steroidal southern neighbor. Sadly, the US system
works better than most countries1 and, if that is faint praise, it also a
fact of life.

However, it would have been easy for them to say that the threat to Steve
Kubby1s life from his very rare form of cancer is so great that he would
not be able survive "due process."

Surely, they could have let him stay because of the risk to his life from
depriving him of cannabis for more than a very few days. Such a ruling
would have been both diplomatic and humane. (After all, Canada usually will
not send an accused murderer back to the US, unless it receives an
assurance that the prosecution will not seek the death penalty, if he is
convicted of murder.)

Consequently, when I read the decision I was genuinely shocked by what it
said. Brevity would have served them better, and the good news is that
there are certainly ample grounds for an appeal.

As noted, the decision is long, but fortunately there are links to the
various sections.

I will discuss the various points and you can put them in context by going
to the original.

Evidence Of Bias And Consequent Errors By The Adjudicator

One of the most glaring problems with the ruling is that there is a
presumption of goodwill and sincerity on the part of California and federal
law enforcement, despite overwhelming evidence to the contrary.

For example, in the section SUMMARY OF THE EVIDENCE ADDUCED, the ruling
says, "Following a tip (an anonymous letter) on July 2, 1998, an
investigation was launched into what the California state authorities
believed was a marihuana grow operation in Placer County, at the Kubby
residence. The letter alleged Mr. Kubby was growing approximately fifteen
hundred plants and selling large crops of marihuana. Since cultivation
remained a state offence following the enactment of the CUA, and following
receipt of this letter, law enforcement in Placer County began an
investigation of Mr. Kubby."

"California state authorities believed" something on the basis of "an
anonymous letter???"

Oh really? Six months passed without any evidence of sales being found. No
one was ever stopped leaving the Kubby home. When the police raided their
home anyway, far fewer plants were found, but the Kubbys were arrested anyway.

California police are conditioned to believe that medical cannabis is a
"scam." For example the California Narcotics Officers Assoc. web site says,
"The director of NORML, Dick Cowan, is quoted, 'The key is medical access.
Because once you have hundreds of thousands of people using marijuana under
medical supervision, the whole scam is going to be brought up...then we
will get medical, then we will get full legalization.'

Is there any doubt about their true motive while they play this cruel hoax
on people with legitimate illnesses?"

"Since cultivation remained a state offence following the enactment of the
CUAS"

Oh really? Cultivation by medical users is not illegal under the CUA. On
the contrary, it is specifically allowed, and there are no limits on the
number of plants that a patient is allowed to grow.

The Kubbys even put notes in the garbage telling the police that they were
just growing for their own medical use.

Further evidence of bias can be found in the following: "Two hundred and
sixty-five marihuana plants was far in excess of medical use based upon a
police officer's expertise, and California State Prosecutor Christopher
Cattran approved prosecution in the case."

Oh really? A police officer's expertise? The law has no limits on the
number of plants. Police officers are not medical experts, and the
prosecutor who approved the warrant also approved the prosecution.

Cattran's testimony is then cited: "Contained within the search warrant was
the fact that Mr. Kubby had some medical condition. That was taken into
consideration as well; however it was determined that the amount was far in
excess of a medical use."

"Mr. Kubby had some medical condition. That was taken into consideration as
well" ( paragraphs 18 and 19 )

Oh really? Are all medical conditions created equal? And if his extremely
rare form of cancer "was taken into consideration" then why was he locked
up without any cannabis? Didn't the "police officer's expertise" make them
aware that he might die?

And notice the passive "it was determined." By God?

Interestingly, the ruling then observes: "While in Canada pending the
outcome of his refugee claim, Health Canada has given Mr. Kubby permission
to grow one hundred and seventeen plants for medical purposes." And Health
Canada did that without consulting a California nark?

The point is simply that the ruling shows bias by assuming the sincerity of
California law enforcement officials when it is obvious that there is very
strong evidence to the contrary. As a result of that bias, there are errors
of fact about both the law and law enforcement in California.

More evidence of bias is found in the treatment of California SB 420. The
ruling does acknowledge that there is still a debate over the meaning of
the bill. (para 81)

However, I found it very disturbing that the ruling quoted one part of the
bill, "Governor Davis' Bill 420 previously mentioned, contains section
11362.785(c) that provides as follows: Nothing in this article shall
prohibit a jail, correctional facility, or other penal institution in which
prisoners reside or persons under arrest are detained, from permitting a
prisoner to use marijuana for medical purposes under circumstances that
will not endanger the health and safety of other prisoners or the security
of the facility." ( para 186 )

But it does NOT quote the preceding section: 11362.785. (a) "Nothing in
this article shall require any accommodation of any medical use of
marijuana on the property or premises of any place of employment or during
the hours of employment or on the property or premises of any jail,
correctional facility, or other type of penal institution in which
prisoners reside or persons under arrest are detained."

Moreover, they were told that the federal government would not allow state
jails or prisons to provide cannabis to patients, so SB 420 is meaningless
for prisoners, despite any "good intentions" in it.

Nonetheless, the ruling then goes on to say, 187: "There is insufficient
evidence that Mr. Kubby would not be afforded appropriate medical
attention, should he need it, while serving his sentence in a state
prison. The evidence he proffered of what transpired while he was briefly
detained when he was initially charged with drug offences, is
inconclusive. Mr. Kubby alleges he will go into adrenal failure, his blood
pressure would become elevated, and he could have a stroke or heart attack,
if left unattended. Dr. Connors agrees with Mr. Kubby's description of
what is likely to happen, should he be cut off from marihuana."

Dr. Joseph M. Connors is the leading specialist in BC for this type of
cancer. He was not chosen by Steve. He was the expert witness called by the
Immigration Ministry.

188: "There is insufficient evidence that Mr. Kubby would not be removed
from his jail cell and taken immediately to a hospital for treatment if a
medical crisis occurred. We have no evidence that Mr. Kubby would not be
permitted to treat himself in a US hospital, with marihuana for medicinal
purposes, through the use of a vaporiser, for example."

Now let's go back to the last sentence in the preceding paragraph: "Dr.
Connors agrees with Mr. Kubby's description of what is likely to happen,
should he be cut off from marihuana."

Kubby's need for cannabis is not intermittent. It is constant. He would
have to be kept in the hospital for the duration and provided very large
quantities of cannabis. Where is this cannabis supposed to come from? Now
it gets even stranger.

189: "In fact, we have evidence to the contrary, from Angel McCleary
Raich. Ms. Raich testified she was permitted to use a vaporiser while in
hospital, in order to medicate with marihuana. Mr. Kubby has not
established his hospital placement if required, would result in different
treatment." ( paragraphs 187, 188, 189)

However Angel testified that she has three secret growers to supply her.
She was not in the hospital as a prisoner, but as a private citizen, and
she was in the Bay Area. How can anyone infer from Angel's experience that
Steve Kubby as a prisoner would be treated similarly?

There is much more evidence of bias here, but the point is that persons
blinded by the prohibitionist paradigm cannot imagine what is really going
on in the United States. Frankly, I have a hard time comprehending it myself.

Definitions: Convention Refugee

A Convention refugee is a person who, by reason of a well founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,

(a) is outside each of their countries of nationality and is unable or, by
reason of that fear, unwilling to avail themself of the protection of each
of those countries; or

(b) not having a country of nationality, is outside the country of their
former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.

Do medical marijuana advocates subject to persecution for reasons of a
political opinion?

When Steve Kubby was running for governor of California his home was placed
under observation for six months by a multi-state and federal task force,
based solely on an anonymous letter alleging that he was financing his
political campaign by selling marijuana.

Does he need protection?

Person in Need of Protection

Mr. Kubby also claims to be a "person in need of protection" because he
alleges that he would be jailed and denied the use of marihuana, which
would put his life at risk, if he returned to the United States.

Section 97 provides:

97. (1) A person in need of protection is a person in Canada whose removal
to their country or countries of nationality or, if they do not have a
country of nationality, their country of former habitual residence, would
subject them personally

(a) to a danger, believed on substantial grounds to exist, of torture
within the meaning of Article 1 of the Convention Against Torture; or

(b) to a risk to their life or to a risk of cruel and unusual treatment or
punishment if

(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,

(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,

(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and

(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care. (all emphasis added)

Now, the problem for Kubby would seem to arise in section (iii). The risk
to his life would appear to be "inherent or incidental to lawful sanctions."

Certainly, "accepted international standards" do not include access to
cannabis!

Given American domination over the international anti-drug treaties and its
promotion of cannabis prohibition globally, killing people by denying them
cannabis while legally imprisoned would seem to be more than acceptable.

In other words, if Kubby is locked up legally and dies from lack of
cannabis, then that is just too bad.

It would have been much better if the decision had shown the intellectual
honesty to be that blunt. Perhaps Canadians are just too nice to say, "If
you die, you die." (Once upon a time, slavery was also legal, and yet
Canada gave refuge to runaway American slaves.)

The Kubbys have very strong grounds on which to appeal the ruling, but this
is putting a terrible strain on Steve1s health, and is already causing
great anxiety for Steve Tuck and Ken Hayes.

After reading this ruling, I fear for my friends, but I also fear for Canada.