VANCOUVER -- The federal government argued yesterday that Steve Kubby and his family should be deported to the United States because there is no evidence he will be denied marijuana to cope with his cancer, even if he is put in jail.
"It is completely speculative to say Mr. Kubby will not receive appropriate medical care. He needs to leave Canada," said Justice Department lawyer Keith Reimer during a Federal Court of Canada hearing in Vancouver.
"If he is incarcerated, the obligation of U.S. officials is to protect people in custody with adequate health care," Mr. Reimer said.
Mr. Kubby, 59, his wife Michele and their two daughters are asking the court for an emergency stay of a removal order that is supposed to take effect on Jan. 12.
The resident of Sun Peaks, B.C. suffers from a rare form of adrenal cancer, and his wife told Mr. Justice Yvon Pinard that her husband will die if he has to serve a 120-day jail sentence in California, imposed after his 2001 conviction of possessing a minute amount of mescaline and psilocin.
Ms. Kubby, who is representing the family in court, explained that marijuana helps control the level of adrenalin in her husband's body. "His heart is at the risk of stopping. There is the risk of an aneurysm. It is a very explosive situation health-wise," she said.
When Judge Pinard asked Ms. Kubby why her husband, who has been described as a medical pot 'refugee,' was not at the hearing, she replied that he was too ill to attend. "He trusts me to guard his life," she said.
Mr. Kubby was originally sentenced to 120 days of house arrest, which would include electronic monitoring. Ms. Kubby said outside court yesterday the family decided to flee to Canada in 2001 because prosecutors were appealing the sentence and wanted her husband in jail.
Mr. Kubby had also been charged with marijuana trafficking, following a 1999 raid of their home near Tahoe City, Calif.
The former Libertarian candidate for governor in California, skiing magazine publisher and medical marijuana activist was accused of selling cannabis to compassion clubs in the Bay Area.
A mistrial was eventually declared, following a lengthy and high-profile trial, when the jury voted 11-1 for acquittal.
"The system worked exactly as it was supposed to. He was allowed to raise medical marijuana as a defence," Mr. Reimer said yesterday. He noted that both an Immigration and Refugee Board adjudicator and a Federal Court judge found that Mr. Kubby was not at any special risk if returned to the U.S.
Ms. Kubby responded that much of the evidence relied upon by the immigration adjudicator, about the fairness of the criminal proceedings and the possession conviction, was based on testimony from Chris Cattran, the district attorney who prosecuted her husband.
The prosecutor was quoted last week in a local California newspaper about the deportation proceeding. Mr. Cattran told the Auburn Journal that Mr. Kubby will be detained at the border pending his return to Placer County and could spend more than 120 days in jail for violating his probation.
Mr. Cattran and jail officials in Placer County were unavailable for comment yesterday.
Douglas Hiatt, a Seattle lawyer who has represented a number of marijuana patients, said it was absurd for the Canadian government to suggest Mr. Kubby will be provided with cannabis in jail.
"My prediction is he is a dead man if he goes to the United States. They won't be able to get him out of jail fast enough," said Mr. Hiatt, who was at the hearing in Vancouver.
Judge Pinard reserved his decision and said it might not be issued before Thursday.
"Do we have to just sit and wait for a knock on the door," Ms. Kubby asked, with her nine-year-old daughter and about 15 supporters looking on in the courtroom.
The judge responded that he wanted an assurance from the federal government that it will not act on the removal order before his decision is released. "If I deny the stay," he said, "then Canada is free to remove."
To help the Kubbys, see www.kubby.org
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