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.
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
Read the decision in full
Or to get right to the paragraphs
where Dauns lays out her reasoning, go to: