CASE OF THE RELUCTANT JURY

A Calgary jury has sent a strong message that Canadians abhor
Draconian laws on marijuana, a message that should encourage the
incoming federal government of Paul Martin to move forward on
decriminalization.

The jury crafted its message cleverly, by accepting a judge's order to
convict in a medicinal-marijuana case but taking nearly 10 hours to do
so. The message was that Canadians are law-abiding, but the laws must
make sense to be obeyed.

It wasn't quite jury-nullification, but it did contain an echo of the
four jury acquittals of abortion doctor Henry Morgentaler in the 1970s
and 80s, acquittals that helped bring down an unjust law. Grant
Krieger, who has multiple sclerosis, and who admitted to keeping 29
cannabis plants to produce marijuana for other seriously ill people,
was charged in 1999 with drug trafficking. Mr. Justice Paul Chrumka of
the Alberta Court of Queen's Bench instructed the jury to convict Mr.
Krieger, since the accused offered no defence other than necessity,
which did not apply since none of his customers faced immediate,
life-threatening peril.

Even so, hour after hour ticked by. At the seven-hour mark, two jurors
emerged to ask the judge to excuse them. "I believe that I could not
live with myself if I'm part of the conviction of this man," a male
juror said, tearfully. A female juror added, "I can take your
instructions. But it's not in my heart." Judge Chrumka sent them back
to the jury room to finish the job .

It all seems an absurd exercise. Mr. Krieger, who was sentenced to one
day in jail (or rather, "one day in jail," which he will serve only on
paper), will have a serious conviction on his criminal record. Yet
Judge Chrumka acknowledged that Mr. Krieger ran a non-profit operation
designed to help the sick (including those with AIDS, cancer and Lou
Gehrig's disease), which hardly fits any common-sense definition of
trafficking.

Although his actions were illegal at the time, the law has since been
changed. A year after he was charged, an Ontario court ruled the
marijuana law unconstitutional because it contained no exemption for
medicinal use -- the very flaw Mr. Krieger was trying to address. New
regulations have since been written to permit severely ill people to
use marijuana. Two months ago, the Ontario Court of Appeal rewrote
those regulations, saying they dehumanized users by forcing them onto
the black market to obtain a safe, reliable supply. The court struck
out provisions that prevented licensed growers from producing
marijuana for more than one person and from being compensated for
providing marijuana to ill people.

In short, there is no reason now that Mr. Krieger cannot go back to
doing exactly what he was just convicted for. There is also no reason
not to press ahead with legislation to decriminalize the possession of
small amounts of marijuana. Ottawa tabled a bill last May that would
have treated possession as a non-criminal offence akin to speeding,
worthy of a fine. The bill died when Parliament was prorogued.

The Alberta jury was unlikely to have been composed of hippie-era
radicals. While its focus was on the medicinal use of marijuana, its
statement seems an accurate reflection of how many Canadians feel
about the treatment of marijuana users in general. They have no heart
for a blindly punitive approach.