last month’s refugee board ruling giving refugee Steve Kubby, a medical pot user and cancer patient, 30 days to pack up and leave was a terrible downer for those seriously ill folk from south of the border who hope to find safe haven here. Whenever things got too rough there on the front lines of America’s drug war, they could at least fantasize about heading out in the dark of night along the new underground railway to Canada. Many of them have actually done this. With U.S. drug czar John Walters trying to nullify the effects of state laws allowing a medical defence for possession, many vocal users find their only options are to flee north or face 25 years in the pen.
Now, with the Kubby decision, other medical marijuana users seeking refugee status in Canada are fearful about their own cases.
There are now 100 to 150 Americans in perilous health living on the Sunshine Coast, victims of a senseless war that has forced them to follow in the footsteps of slaves and draft dodgers.
And a willing crew is pledged to help them along the path. Undergroundrailway.ca offers suggestions on crossing legally: be clean-shaven, cut long hair, look wealthy, have a story like “going to a concert” or “going to a (Vancouver) Canucks game” well rehearsed.
Then there’s the section of the site titled Crossing The Other Way, advice on making a run for the border. Author David Malmo-Levine, the Harriet Tubman of the pot movement, isn’t talking about going out for some Taco Bell.
The first instruction on crossing illegally is to watch a segment of The Fifth Estate on sneaking into Canada. Then it suggests, “Crossing into Canada won’t be easy – and it’s getting harder all the time. You may have to pay a smuggler to show you the way.”
Besides advice on how to arrive in Canada via the reefer railroad, Malmo-Levine writes about the difficulties an American might have adjusting to life here. Many refugees have put down fantastic roots in the community, while others develop long-term depression from homesickness and the realization that they can’t go back until the war is over. “As a guest in the country, learn to listen,” the site advises. “What seems to you a normal tone of voice and emphasis may seem overbearing to a Canadian.”
“I personally have had five or six Americans sleep on my couch,” says Malmo-Levine. “I know many of my friends who have had similar stories. Indirectly through the Web site we have helped dozens of others.”
All this has drawn the ire of Langley-Abbotsford MP Randy White, a Canadian Alliance member and the vice-chair of the parliamentary committee on the non-medical use of drugs. He supports Canadians who need medical marijuana but says we “should flatly refuse to hear (Americans) under the refugee hearing schedule. This is a ridiculous position to put our country in.
“If Kubby is very ill he should stay in the United States and get himself fixed. I’m not here paying taxes, and neither are you, for somebody’s else problem. There are many Canadians who are looking for a certificate who are royally ticked off at the government because Steve Kubby comes to town and gets in line ahead of them.”
It looks like White was granted his wish. Immigration board adjudicator Paulah Dauns ruled that Kubby, who is fighting to keep adrenaline levels low and prevent heart attack and stroke, did not need Canada’s protection.
“I reject his evidence that he was a victim of a ‘witch hunt’ by prosecutors, law enforcement officials and judges,” she wrote. An appeal to federal court has been granted, and Kubby will once again argue that he is being persecuted in the United States for his use of medical marijuana and his opinions.
When I first spoke to Kubby, a former California Libertarian gubernatorial candidate, a Health Canada marijuana medical access regulations cardholder and a former ski magazine publisher, he was optimistic about his family’s chances of becoming the first Americans to be granted asylum in Canada. “There’s a first time for everything,” he told me. “I have the largest exemption to grow pot of any person in Canada. I’m the only person to have Canadian experts testify that I have a life-and-death medical necessity for cannabis.”
British Columbia cancer specialist Dr. Joseph Connors testified at the immigration hearing that “he has had a much longer than expected survival with his kind of medical problem than is usually seen, but it is not unique. There are recordings of other cases of equally long survivals…. Marijuana seems to be controlling his deadly adrenal cancer.”
Kubby, who was arrested in California for possession of more than 200 marijuana plants but drew an 11-to-one jury ruling in his favour, fears federal prosecutors might reopen his case. He also faces a 120-day sentence at Placer County Correctional Facility for the possession of a peyote button.
“It’s a death sentence for a parking ticket,” he’s fond of saying.
Adjudicator Dauns doesn’t believe this. “He asserts he is at risk of being jailed and will die if imprisoned because he will be cut off from cannabis. He has failed to demonstrate this is remotely likely.”
Dauns, who once sat on the board of a Catholic drug treatment facility, points to Bill 420 (allowing medical marijuana for prisoners) and Proposition 215 (allowing the licensing of medical pot users) as reasons why Kubby won’t face dire hardship if he returns to California.
But as Orange County Judge Jim Gray, who has a much greater understanding of California and federal laws, explains, “There are a number of states that have passed legislation for medicinal marijuana. But federal law trumps state law. This is why the Kubbys are in so much trouble.”
During the course of our interview he paints a grim picture of the situation facing vocal activists. “Our country is off track. A friend who is a federal district judge in Los Angeles told me, ‘You know, sometime I’m going to have to sentence a medicinal marijuana offender, and this is going to be a very difficult thing for me because my hands are tied.’ This is a compassionate man, a good man. The laws are written and enforced, and once the U.S. attorney general or department of justice decides to go after somebody, there is nothing people can do.”
Both the Placer County district attorney’s office and sheriff’s department deny Kubby was ever a target. DA Brad Fenocchio emphatically says “We didn’t target him. Mr. Kubby has this perception of what occurred. There is a warrant in the system, and I think there may even have been a parole violation.”
Lieutenant Carl Fulenwider of the sheriff’s department puts it more bluntly. “Are we coming up to Canada to get him? No. If he comes back to Placer County, like anyone else with charges he’ll do time.”
When asked point blank if Kubby would receive marijuana under Bill 420 in the county jails as Dauns assumes, Fulenwider replies, “In county jails? We are under different laws. We would take care of Mr. Kubby. We wouldn’t let Mr. Kubby die in our care.”
Does that mean he would receive marijuana? “That means we’ll take care of his medical needs,” Fulenwider tersely replies.
Once again Canada is being asked to harbour upstanding, politically active and intelligent Americans. And despite the immigration ruling, Michele Kubby, Steve Kubby’s wife, believes in the end Canadians will live up to our better selves.
“There is something in this country that makes me believe that the Canadian people, when they understand my husband’s disease, will be shocked that the government would do something so reckless and irresponsible. It’s time for the marijuana community to make some noise.”