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The State

Pot User's Refugee Bid Is Rejected

Canadian immigration officials say a California marijuana patient failed to prove he would die in jail if returned to the United States.

December 09, 2003|Eric Bailey | Times Staff Writer

The Canadian government refused to grant refugee status Monday to a California medical marijuana patient who claimed he faced political persecution and would die in jail if he were returned to the U.S.

Steve Kubby, 56, fled to British Columbia with his wife and two small children after his arrest and conviction on drug charges stemming from a 1999 bust that uncovered 265 marijuana plants in the basement of his Squaw Valley home.

Paulah Dauns, a member of the Canadian Immigration and Refugee Board, flatly concluded in a 71-page opinion that Kubby, who was diagnosed with adrenal cancer in the late 1960s, "is not at risk of cruel and unusual treatment or punishment, or a risk to his life."

She said Kubby had failed to demonstrate that it is even "remotely likely" that he would die in prison from being cut off from his cannabis. Dauns concluded that his jailers almost certainly would take pains to fulfill Kubby's medical needs and allow him access to marijuana.

Kubby vowed to appeal the ruling, which he labeled "a cowardly decision."

"We're going to get this before a real court and a real judge," said Kubby, a onetime magazine entrepreneur and medical marijuana activist who ran unsuccessfully for governor of California in 1998 on the Libertarian ticket. "We're just stunned by this. The logic is just so twisted."

Kubby's case stoked memories in western Canada of Vietnam-era draft dodgers who fled north decades ago. It has also caused a stir in government offices on both sides of the border.

Canada's Parliament and courts continue to haggle over marijuana. Canada legalized medical marijuana two years ago, and has talked of decriminalizing recreational use.

In the U.S., meanwhile, federal drug agents and prosecutors continue to press charges against high-profile medical marijuana advocates in California, a hotbed of the movement since state voters approved a landmark medical marijuana initiative in 1996. While California and seven others legalized medical cannabis, federal law continues to consider the drug illegal for any use.

That uncompromising stand has prompted more than 100 U.S. medical marijuana expatriates to stream into British Columbia in the last few years, Canadian officials estimate. About a half-dozen U.S. medical marijuana patients have filed to become refugees.

Opponents of Kubby's refugee push said the ruling thwarted what could have been a flood of refugee applications from American medical marijuana patients. "It was worrisome, and I'm glad we won it," said Randy White, a member of the Canadian Parliament who actively opposed Kubby.

Under Canadian law, Kubby now has 30 days to leave the country, but deportation could be put on hold if he appeals Dauns' decision by filing for judicial review by the federal court in Canada.

That legal process can take up to three years, but would face long odds. Melissa Anderson, an Immigration and Refugee Board spokeswoman, said the federal courts overrule a refugee decision less than 1% of the time.

Kubby discovered that marijuana seemed to keep in check his rare cancer, which usually spreads through the vital organs and kills inside of five years. Kubby has said he smokes about a dozen marijuana cigarettes a day.

Medical marijuana was a centerpiece of Kubby's 1998 gubernatorial run. But a few weeks after election day, a task force of Lake Tahoe drug agents battered down the door of his home. Kubby claims he nearly died during his three days behind bars as his blood pressure spiked.

Though a jury declared Kubby innocent of the marijuana charges, they found him guilty of two misdemeanors for possessing a peyote button and a psilocybin mushroom stem confiscated during the raid. Sentenced to four months in jail, Kubby headed to Canada with his wife and two young children. They set down roots in a scenic seaside community on the rugged coast north of Vancouver, and Kubby remained a forceful advocate for medical marijuana.

Back in the U.S., a judge in Placer County declared Kubby a fugitive after he failed to appear to serve his sentence. Canadian immigration officials, meanwhile, arrested him in early 2002 and issued a conditional departure order, citing his U.S. conviction for the mushroom stem. Peyote possession is legal in Canada and therefore not a cause for deportation. Despite the immigration wrangling, Kubby won a medical marijuana exemption from Canada's national health agency to grow 117 plants and possess up to 12 pounds of dried cannabis for his medical use.

Last year, at the behest of immigration officials, Dr. Joseph Connors of the BC Cancer Agency examined Kubby and concluded that the drug was somehow muzzling the worst symptoms. Without marijuana, Connors said, Kubby could suffer a fatal heart attack or stroke.

If returned to the U.S. and jailed anew, Kubby contended during a nine-day hearing before the refugee board that concluded in April, he almost certainly would not be allowed to use marijuana and would die within days.

Dauns countered in her ruling that no evidence came to light cementing that U.S. law enforcement authorities were conducting a "witch hunt" against Kubby, nor did he prove that he failed to receive a fair trial in California. She concluded that it was very unlikely U.S. authorities, who typically only pursue cases involving more than 500 marijuana plants, would try to prosecute Kubby for marijuana possession.

He also failed to establish that there existed any "exceptional circumstance" that would warrant international protection under United Nations rules on refugees. She said if he were returned to the U.S., it was very likely that his jailers would supply marijuana and adequate medical treatment to ensure his survival.

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