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B.C. court dismisses challenge of medical marijuana laws January 2, 2006 - canada.com
VANCOUVER -- The B.C. Court of Appeal has dismissed an attempt by Michele Kubby, the wife of former California gubernatorial candidate Steve Kubby, to have Canada's medical marijuana regime declared unconstitutional.
Parliament has every right to criminalize the possession of pot if it wants to, emphasized Justice Anne Rowles in a written decision supported by Justices Richard Low and Peter Lowry.
"Contrary to the appellant's submissions ... the MMA Regs and section 4(1) of the CDS Act (today) constitute valid legislation," she concluded.
Rowles weighed the legal effect of two important Ontario decisions.
In the first, called Parker, the Ontario Court of Appeal in 2000 declared invalid the section of the Controlled Drugs and Substances Act that placed a total ban on the possession of marijuana because it did not provide for medical access to the drug.
But the court also said that ruling was to be held in abeyance for one year so Ottawa could fix the problem.
Rowles said the Medical Marijuana Access Regulations that came into force July 1, 2001, remedied the constitutional deficiency.
She dismissed Kubby's suggestion the law could be resurrected only via legislative amendment.
In the second decision, called Hitzig, the same appellate court in 2003 determined certain provisions of those regulations were constitutionally flawed --such as the need for the support of two specialists to obtain an exemption -- but upheld the others.
Rowles was unconvinced that case had relevance either.
Citing the landmark December 2003 rulings by the high court on three unrelated pot cases -- involving two men from B.C. and one from Ontario -- in which the criminal prohibition was upheld, she added: "Appellate courts are bound by the decisions of the Supreme Court of Canada."
The family, who has lived in B.C. since 2001, is also fighting to remain in Canada. It has been ordered out of the country by Jan. 12.
The Kubbys and their two daughters, who live in the B.C. Interior at Sun Peaks Village, are making a last-ditch plea to the Federal Court Jan. 9.
Steve Kubby fears returning to the U.S. because he may be imprisoned and denied the marijuana he consumes to ease the symptoms he suffers from a rare adrenal cancer.
"How can I be denied my medicine and returned to the U.S.?" he asked.
In July, Federal Court Judge Sandra Simpson rejected the couple's complaints about an Immigration and Refugee Appeal Board decision to deny them sanctuary. On Nov. 22, the Canadian Border Services Agency turned down their 11th-hour request for protection, saying: "It has been determined that you would not be subject to 'risk to life' if returned to your country."
Four years ago, Kubby left California after he was arrested ostensibly for growing marijuana. A Libertarian Party candidate for governor in 1998, Kubby was a licensed state medical marijuana patient but fell afoul of the federal Drug Enforcement Administration, which does not recognize the California Compassionate Use Act.
While cleared on the pot charges, Kubby was convicted for possession of mescaline and psilocybin -- minute quantities of hallucinogens police reputedly extracted from a few peyote cacti and a magic mushroom found during the search of the family's home.
Since arriving in Canada, Kubby has applied for and received a medical exemption to possess and grow marijuana from Health Canada, but his wife's application was turned down.
As a result, she went to B.C. Supreme Court representing herself and argued the medical marijuana regime was unconstitutional. The court this spring dismissed her petition, prompting the appeal to the B.C. Court of Appeal.