JUDGE'S CHARGE TO JURY SEEN AS CASE FOR APPEAL

CALGARY -- A medicinal-marijuana activist with no defence for drug
trafficking may have grounds to appeal his conviction, legal experts said
yesterday, because an Alberta judge told the jury he was guilty and ordered
jurors to convict him.

"The charge to the jury is so out there," said Sanjeev Anand, a professor of
criminal law at the University of Alberta who is working on a book about
juries. "This judge clearly went beyond established practice."

He said the charge to the jury was inappropriate in a legal system in which
judges are supposed to guide jurors about the law, but still allows them to
ignore it.

This week, Mr. Justice Paul Chrumka of Alberta Court of Queen's Bench
sentenced Grant Krieger to one day in jail (on paper, though -- not behind
bars) for drug trafficking. Mr. Krieger is a 49-year-old multiple-sclerosis
sufferer who admitted in court that he ran a marijuana-growing operation to
provide pot for himself and the infirm.

Judge Chrumka told the jury that because Mr. Krieger admitted all elements
of the offence i, guilt had been proved beyond a reasonable doubt and with
no defence, members must enter a guilty verdict.

It took the jury more than 9 1/2 hours to convict Mr. Krieger, but not
before two jurors unsuccessfully pleaded with the judge to remove them from
the case, saying their consciences wouldn't allow them to find guilt. Judge
Chrumka instructed them to follow his orders and finish deliberations.

Mr. Krieger's charge of possession of cannabis for the purpose of
trafficking stems from a 1999 raid on his Calgary home where 29 marijuana
plants were seized. It was also his second trial. A jury acquitted him
previously and the Alberta Court of Appeal ordered a new trial.

Paul Burstein, an Ontario lawyer who has represented several clients in
medicinal-marijuana cases, said juries are always allowed to disagree with a
law they find offensive, a practice known as jury nullification. "As an
appellate lawyer, I'm almost positive a judge cannot tell a jury someone's
guilty beyond a reasonable doubt. No way. It's always open to a jury to
disregard what they've heard," he said.

Some studies have shown that when a jury departs from a strict application
of the law, it is done to assert a general community sense of fairness.
Jurors are supposed to work within the law, but the Criminal Code doesn't
specifically ban a juror from ignoring it.

Jurors in Mr. Krieger's case sent a note to the judge to ask for a copy of
the oath they took at the trial's outset. Jurors agreed to offer a "true
verdict" given in accordance with the evidence.In recent years, polls show
that Canadians overwhelmingly support pot use for medical purposes,
something the government supports, but hasn't been able to supply.

Karl Wilberg, an Edmonton lawyer with the firm Andrew, March & Oake who has
worked jury trials, said the case is ripe for appeal with arguments on both
sides.

"There's nothing I could find that says a judge can take a case away from a
jury," he said.

However, in this case, where there's no legal defence, questions of fact for
the jury to decide may be removed. That means the judge might be right to
tell the jury what to do based on his determination of questions of law, Mr.
Wilberg said.