The Drug War Refugees
By Eric Bailey, Times Staff WriterCancer patient Steve Kubby and other California medpot practicianers are begging Canada for asylum, claiming U.S. drug warriors are out of control. Maybe they're high, but maybe they're right.
Along the rugged coastline of British Columbia, more than a generation ago, the first American refugees trickled in. As the Vietnam War raged, draft dodgers who chose to flee America rather than fight an unacceptable war gravitated to Canada's west coast, to rain-washed Vancouver and northward in tiny villages astride deep fiords left by the glacial past.
A few of the new arrivals brought with them a taste for marijuana, and some began cultivating pot gardens. Isolated from the law by rugged terrain, separated from most of civilization by deep bays, a marijuana industry was born. As the tale goes, the coast north of Vancouver became a pot lover's paradise.
Now a new breed of American refugee has arrived, seeking asylum from a different kind of war--the fight over medical marijuana. By some counts, they number more than 100 expatriate U.S. citizens, many of them from California, the fiercest battleground in America's medpot fight. They are patients and activists who share an uneasy distrust of the U.S. government and dismay over its intolerance of their brand of medicine. And they often arrive scarred by schizophrenic drug policies that now pit the Golden State's lenient laws governing the use of medical marijuana against the federal government's zero-tolerance approach.
Vancouver has become a magnet for this underground railroad of the new millennium. Clean and cosmopolitan, the city is famous worldwide among cannabis aficionados for its high-potency "B.C. Bud" and a largely laissez-faire police response to pot. Though nonmedical marijuana is still illegal in Canada, activists say its recreational use rarely results in arrest. In Vancouver, pot is openly smoked in some Hastings Street cafes. The provincial marijuana party puts up a slate of candidates each election. North of the city, a 30-mile-long knob of bucolic mainland known as the Sunshine Coast rivals California's pot-growing north coast. Locals say marijuana cultivation runs right up there with tourism and retirement checks as a main economic engine. U.S. marijuana expatriates--much like their Vietnam-era brethren who flocked to Canada--are sinking roots into this cannabis-friendly land, launching businesses, raising kids.
But even in open-armed Canada, there are limits for newcomers dubbed criminals. Some of the Americans arrive with drug-war wounds: arrest warrants outstanding, prosecutions pending, jail terms unfulfilled. When immigration officials threatened to toss them out, four California medpot expats--Steve Kubby, Ken Hayes, Renee Boje and Steve Tuck--decided to test Canada's characteristic tolerance. Facing deportation or extradition, they requested something quite extraordinary for citizens of the First World: political refugee status.
That designation is normally reserved for the castoffs of troubled lands, but the four Americans say they are just that. Despite the passage of California's landmark 1996 medical marijuana initiative, U.S. law makes cannabis illegal for any use, putting die-hard activists squarely in the crosshairs of federal drug agents. If returned to the U.S., the California foursome say, they don't face just prosecution for their unyielding embrace of medical marijuana. They face political persecution.
The deportation tussle arrives at a remarkable juncture between these two sister nations. As the U.S. has worked to crush the movement in California and the other states that adopted medical marijuana laws, Canada has legalized medicinal use. Politicians say the Canadian Parliament could go even further this year. Justice Minister Martin Cauchon has endorsed decriminalization, though Prime Minister Jean Chretien is urging more debate. If lawmakers fail to act, the courts seem ready to step in. On Jan. 9, a Superior Court justice in Ontario gave the Canadian government six months to provide safe distribution of medical marijuana or risk opening the door to full legalization. The Canadian Supreme Court appears poised to fashion new law out of three pivotal criminal cases involving Canadians accused of growing, selling or possessing pot. Overnight, the country that has treated recreational marijuana with a wink and a nod might codify its casual stance.
Should it happen, that tectonic shift would rattle the ground under drug warriors in the U.S. The Bush administration has warned that if Canada gets softer on pot, North America could see a boost in drug dependency and gummed-up commerce between the world's two biggest trading partners.
Cannabis has a long and contentious history. It was described in a Chinese medical compendium dating to 2,737 BC. In America, marijuana has been outlawed since the Great Depression. In 1970, the Nixon administration assigned it to Schedule I, a spot reserved for heroin, LSD and other high-octane drugs thought to have no redeeming medical merit. It was Nixon's way, pot advocates say, of shelving the martini of the antiwar movement.
American marijuana activists say pot was "rediscovered" as medicine when ill patients tried the drug recreationally and found it reduced the nausea of chemotherapy and helped those suffering from glaucoma, multiple sclerosis, epilepsy and other maladies. Patients joined the push to have pot rescheduled, a step that would allow physicians to prescribe it. The effort languished until 1988, when the chief administrative judge at the U.S. Drug Enforcement Administration made a startling ruling: Marijuana had a place in medicine. Judge Francis L. Young declared it unreasonable, arbitrary and capricious for the federal government to stand between "sufferers and the benefits of this substance."
DEA officials quickly rejected Young's ruling, and the courts backed them. The rescheduling effort, meanwhile, went nowhere in Congress; politicians on both sides of the aisle long ago concluded it's safer to talk tough on drugs than risk oblivion as a pot appeaser.
The AIDS epidemic brought a huge new pool of patients to marijuana's cause. Famous for producing the munchies, marijuana likewise seemed to stem the wasting effects of HIV. But here, too, U.S. officials balked. Out of frustration, a movement was born in California. An unlikely coalition of cannabis true believers and three ultra-rich businessmen eager to shift the nation's drug debate put the state's landmark medical marijuana initiative, Proposition 215, on the 1996 ballot.
Proposition 215 won big, but it ushered in an era of confusion among cops and courts, patients and politicians. The federal government, whose laws supercede any conflicting state statutes, at first threatened doctors, saying that any who recommended the use of marijuana by patients would be prosecuted or have their authority to prescribe certain drugs withdrawn. After doctors fought back and generally won, the feds shifted tactics, using civil and criminal courts to go after medicinal-use activists who grow or distribute marijuana. But a trend began leapfrogging the nation. Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington all passed medpot measures.
Amid the fog of this new war, what became clear was that Proposition 215 caused a fundamental shift in the way Americans talk about marijuana. The just-say-no simplicity of the Reagan era has been replaced by a more complicated debate about science and orthodoxy, privacy and morality, freedom and states' rights.
Recent U.S. polls show pot winning this cultural debate. But prohibitionists are prevailing in battlegrounds such as Nevada, where voters rejected a marijuana legalization measure in November. From the beginning, prohibitionists have labeled medical marijuana a smoke screen for legalization. California alone has an estimated 30,000 medical users, and for every cancer and AIDS patient there seems someone willing to claim that pot helped them cope with insomnia, anxiety, psoriasis or menstrual cramps. Not everyone buys the claims.
"Because somebody feels something makes them feel better, that's not science," says John Walters, President Bush's director of national drug-control policy. "That's snake oil."
Try telling that to Steve Kubby. The onetime California gubernatorial candidate and medical pot user fled California two years ago. In Canada, he has been granted a medpot exemption by the government health agency and has emerged as the lead agitator in an effort to draw attention to the conflicting state and federal drug laws in the U.S. If medical marijuana has a Thomas Paine, Kubby just might qualify.
Now 56, Kubby hardly seems the stereotypical stoner. Despite pot's reputation as a sinkhole for gumption, Kubby lives big, whether he's hustling on the campaign trail or running a Web-based ski magazine. After multiple joints, he speaks with the lucidity of an espresso addict at a coffee bar. Like others in the cannabis community, Kubby believes generations of right-wing prohibitionists--from Richard M. Nixon to George W. Bush--have waged a cultural war against pot-smoking hippies, ghetto dwellers and the powerless ill.
Cancer dug a hole in Kubby's world in the early 1970s. In a time of free love, Watergate and questions about authority, Kubby watched his brimming life begin to drain. Doctors diagnosed pheochromocytoma, cancer of the adrenal gland that in 90% of cases is not malignant. In Kubby's case, it was. Abdominal tumors flooded his system with adrenaline and norepinephrine, causing skyrocketing blood pressure, heart palpitations, nausea and shortness of breath. Kubby, running an alternative summer program for kids in the forests of Shasta County, says he struggled through each day.
In the span of a few years, he underwent four surgeries, chemotherapy and radiation. Nothing seemed to stop his steady decline. Unchecked, doctors say adrenal cancer usually spreads through the vital organs. Kubby says he was told he shouldn't expect to live beyond five years, and likely would die of a heart attack or stroke.
Marijuana became his life preserver quite by accident, he says, with the help of a soon-famous friend. The son of a San Fernando Valley wrecking-yard owner and housewife, Kubby had roomed at Cal State Northridge with Richard "Cheech" Marin, then an unknown pre-law major but later to become half the iconic doper comedy duo of Cheech and Chong. As Kubby tells it (Marin did not respond to a request for comment), Cheech paid him a visit one summer day. Kubby was spiraling toward oblivion. His old buddy offered a suggestion: If you're going to die, Steve, why not die happy? Kubby hadn't smoked pot since his cancer diagnosis. For old time's sake, he lit up. A wave of euphoria hit. Kubby hadn't felt so good in months.
He continued smoking marijuana, and says he eventually felt so good that he gave up doctors and hospitals and prescription drugs, turning to a regimen of fresh foods, clean fluids, exercise and pot. Kubby's health turned around, for reasons that remain a mystery. While he credits his prodigious use of marijuana for his survival, doctors have been unable to definitively pinpoint the reason.
Years passed without a visit to an oncologist, Kubby says. Vincent DeQuattro, an expert on hypertension illness who years earlier had treated Kubby at County-USC Medical Center, examined him in 1998 and discovered that lethal levels of adrenal fluids--10 to 20 times normal--were still coursing through Kubby's system. But, DeQuattro concluded, pot seemed to be somehow blunting or masking its effects.
The conclusion reached by DeQuattro, who died in August 2001, was echoed this past year by Joseph Conners, a top oncologist at the B.C. Cancer Agency and a professor at the University of British Columbia who examined Kubby at the behest of Canadian immigration officials. He found a large tumor invading the upper abdomen, but concluded that pot's "most important achievement is normalization of his heart rate, blood pressure and blood volume markedly reducing the risk of heart attack or stroke." Conners believes that Kubby should be allowed to continue its use, saying, "It is controlling his symptoms at least as effectively as anything I can do."
Freedom and medical marijuana were the centerpieces of Kubby's 1998 California gubernatorial run, when he received less than 1% of the vote on the Libertarian ticket. But candor about his copious use of pot cost him. A few weeks after election day, a task force of Lake Tahoe drug agents battered down the couple's door, confiscated his 265-plant medpot garden and--as his wife held their screaming toddler--hauled Kubby off to jail on charges of cultivation and drug trafficking. During three days behind bars, Kubby's blood pressure spiked.
At his 1999 trial in Placer County Superior Court--which Kubby predicted would be "the Scopes monkey trial of medical marijuana"--prosecutors suggested he was faking it, calling a witness who said his prison-cell dry heaves didn't seem real. They raised questions about his cancer, suggesting it might be in remission and that Kubby used pot simply to get high. (The defense countered with DeQuattro vouching for Kubby's medicinal needs.) Prosecutors also argued that Kubby was selling his pot for profit, taking in more than $100,000 over 18 months. The prime evidence was cash Kubby got during his campaign (he says it was donations from medpot dispensaries) and a sheet of paper covered with numbers. Prosecutors said it listed street sales; Kubby says it tallied how many plants he could grow as a patient.
Placer County prosecutor Christopher Cattran still rolls his eyes over their courtroom encounters. "I don't dislike Mr. Kubby more than anybody else who breaks the law," Cattran says. "He's not a bad person, just an extremist who is impassioned about marijuana."
The jury declared Kubby not guilty of the marijuana charges but guilty of two other counts--possession of a peyote button and a hallucinogenic mushroom stem found in the raid. Kubby faced four months in county jail, where he believed he would suffer and possibly die without access to pot.
Even if he avoided jail, Kubby believed his high-profile pot use made him a DEA target, and he knew that pot activists sometimes don't fare well in federal court. For example, a few heady months after Proposition 215's win, drug agents busted Peter McWilliams, a best-selling self-help author, and Todd McCormick, a medical pot activist, for cultivating 4,000 plants at a Bel-Air mansion dubbed the "Cannabis Castle." A federal judge denied both men the right to put on a medical defense. McWilliams, an HIV patient, died in June 2000 before he set foot in jail. McCormick is now in federal prison, deprived of the pot he claims eases pain from a fused spine. He was sentenced to five years after a plea bargain with prosecutors.
Scrambling to avoid such an end, Kubby looked to Canada. Pot activists told him it was a different world north of the border, particularly on the Sunshine Coast. One put it this way: There may be some people on the coast who don't smoke pot, but I haven't met any of them.
Bankrupted by a $250,000 court defense, their ski magazine in ashes, the Kubbys felt they had little to lose. America seemed like enemy territory, not home. Kubby says he felt the trauma of "turning your back on your country, leaving loved ones, having friends question your sanity and striking out to an unknown future." The Kubbys moved to Sechelt, B.C. The tiny seaside town sits midway up the Sunshine Coast, a scenic peninsula of conifers and granite divided from Vancouver by a glacial bay so wide and deep that no road from the big city was ever cut. The only way in is via floatplane or ferry, and Kubby likes that just fine. The isolation has turned it into a haven for tourists, marijuana growers and more than a dozen California pot expatriates. There's no Home Depot, but hydroponic gardening stores do a brisk business supplying indoor pot gardeners.
Across the border, everything went right. Kubby and family--wife Michele and two young daughters--rented a contemporary three-story house above the docks and breakfast inns that dot tranquil Porpoise Bay. Their monthly rent was only $700. They delighted in the ethereal sky show of the Northern Lights. The average Canadian seemed friendly and tolerant. Kubby, who had been smoking donated pot from other expats and Canadians, began to grow his own in secret.
Never one to shy from the righteous fight for cannabis freedom, Kubby didn't balk when Canadian reporters got wind of his story and came calling. Headlines hit the provincial papers. Then the Canadian Broadcasting Co. TV show "Disclosure" did a segment. Suddenly, Kubby and other American medical marijuana expatriates were news all across the northern tundra.
Canadian authorities couldn't ignore this. Three weeks after the TV show aired, officers knocked on Kubby's door. Compared to his U.S. bust, it was all very polite and cordial. They confiscated 160 marijuana plants and took Kubby to jail in Vancouver on charges of immigration and drug violations. His wife was frantic. "In our minds," she says, "incarceration means death for Steve." But when his heart began to race and sweat poured off his face, Kubby didn't face disbelief from his Canadian jailers. They didn't accuse him of faking the dry heaves. They called a doctor.
That humane approach to medical marijuana users is what brought Ken Hayes to a lonely pier on the Sunshine Coast, where at the moment he is casting a fishing line. Swells batter the oily pilings. He's after salmon. Nothing is biting.
Among the faithful, Hayes is considered a cannabis Samaritan, running a medpot dispensary. Two years ago, he beat a rap for growing 899 medicinal pot plants; San Francisco Dist. Atty. Terence Hallinan appeared as a star witness to vouch for Hayes' medicinal legitimacy. But the acquittal in state court only put Hayes in the sights of federal authorities. He got across the border in January 2002, right before the U.S. Attorney announced charges that carried a prison sentence of 10 years to life.
The 35-year-old Hayes sees no moral conflict in growing pot. He concludes that the U.S. has lost track of its founding freedoms. He'll only return, he says, "when they decide to restore the Bill of Rights."
Renee Boje's exodus to Canada came, she says, because she was in the wrong place at the wrong time. She was living at the Cannabis Castle in Bel-Air, hired to do illustrations for a book on medical marijuana. She watered the plants, did her art. Drug agents swept up Boje in the bust.
Charges looming, she fled Los Angeles for Canada in 1998. At the request of U.S. prosecutors, Canadian authorities launched extradition proceedings. The 33-year-old Boje married a Canadian pot activist, had a baby and started an herbal health shop. A willowy woman who favors peasant skirts, Boje has given up on America and thinks pot activists should come north. She calls the war on drugs in the U.S. "a war on Mother Nature and higher consciousness."
Steve Tuck can be found at the New Amsterdam Cafe, a Hastings Street gathering place for the free of spirit. Dark-wood booths harbor clusters of mellow young adults. Marijuana paraphernalia glistens in a glass case. The menu includes vegetarian items, with a few hemp seeds tossed in. In a back corner is a glass-walled room, as big as a VW van. Pot smokers go there to light up. Tuck is taking hits off a joint. At 36, he is a wisp of a man with a big Kentucky accent. His story unfolds like a soliloquy. He was an Army paratrooper. A jumping accident during a 1987 military exercise seriously damaged his spine. He was hospitalized for months, undergoing 13 surgeries in a decade. With that, Tuck pulls out an X-ray, right there in the smoke-filled booth, and holds it up to the light. It shows his backbone in white-on-black silhouette, the vertebra strangled by a mess of surgical metal.
A doctor recommended that he try cannabis for the pain, Tuck says. He became a believer, moving to Arcata on California's north coast to cultivate pot for a medical dispensary, overseeing several indoor and outdoor "grow-ops." The Humboldt County Sheriff's drug enforcement unit concluded that Tuck was a for-profit marijuana grower. Tipped off one morning to drug agents bearing down, Tuck fled north. He bluffed his way across the border by saying he planned to do some fishing.
"They're on a witch hunt," he says, "and they're burning me at the stake."
The heat continues to rise back in the United States. During the past year, the Bush administration has stepped up its campaign against medical marijuana, which crescendoed in September with the bust of a Santa Cruz pot cooperative. Camouflage-clad federal drug agents stormed in, arresting Valerie and Michael Corral, founders of the cooperative. According to reports, agents pointed automatic weapons at Suzanne Pfeil. They ordered her to stand. Pfeil is disabled by postpolio syndrome, so the agents handcuffed the 44-year-old medical pot patient to her wheelchair.
Canada is running the opposite way. The debate over pot flamed in September, when a parliamentary study committee of the Senate--the country's equivalent of Britain's House of Lords--issued a thick report suggesting cannabis be treated as a matter of personal responsibility, not police work. Pot should be declared legal, even sold by government stores, it suggested. Scientific evidence, the committee added, indicates alcohol is more harmful.
Police groups howled with outrage, as did the country's conservative minority. But many suspect Canadian lawmakers will vote this year to relax the laws. Randy White, a member of Parliament from the Vancouver area, dreads that prospect, which he fears is a done deal. But he intends to fight to deport the American marijuana refugees. "As far as I'm concerned, they're not going to get away with it," he says. "They're abusing our refugee laws to avoid prosecution in the U.S."
Walters, the U.S. drug czar, says he has talked with his Canadian counterparts about the pitfalls of pot legalization and harboring of American drug fugitives. "If Canada wants to become the locus for that kind of activity," he says, "they're likely to pay a heavy price." He calls it "reprehensible" for medpot expatriates to use Canada as a shield. He's all for individual liberty, Walters says, but within rational limits. Modern civilization, he concludes, is based on the notion that "we control the darker angels of our nature."
Steve Kubby never figured himself as a dark angel, just a man trying to stay alive. If he and his doctors are to believed, pot is helping. But returning Kubby to the United States could kill him, says Alex Stojicevic, a Canadian immigration lawyer who has advised the family. "Are we all so sure that marijuana is of no medical benefit that we risk his life against the advice of physicians who are experts in the field? It seems foolhardy."
In May, a conditional departure order was issued based on Kubby's 2000 drug conviction in California for possession of the hallucinogenic mushroom (possession of peyote is not a crime in Canada and thus not a prod for deportation). Kubby countered with his refugee claim, saying he faces a "well-founded fear of persecution" in America. At his March refugee hearing--a tribunal conducted before a single judge--Kubby will face an army of lawyers dispatched by the government, Stojicevic says. (Canadian immigration and refugee officials declined to discuss Kubby's case, citing confidentiality issues.) Despite the talk of relaxing Canadian marijuana laws, Stojicevic says, immigration officials are wary of the floodgates opening to Americans eager to avoid pot prosecutions. "It's the same situation as the draft dodgers, except it's not the Vietnam War, it's the war on drugs," he says. "The Bush administration's zealous prosecution of medical marijuana, that's what is on trial here."
In December, at Conners' suggestion, Kubby began an experimental radiation treatment that could shrink his cancer significantly. The Vancouver doctor says it might even take away the medical need for Kubby to smoke grass. Kubby says he'd remain a cannabis consumer anyway. Pot has been his personal savior for a quarter century. It has become more than medicine for him. More like a sacrament.
For now, Kubby has no idea what tomorrow will bring. Up in Sechelt, the comfortable home and laid-back life make it easy to forget his predicament. But the threat of deportation lingers. The Kubbys cherish Canada, but what if it is taken from them? What if they become people without a country?
"We would love to go back to the U.S.," Kubby says. But only, he adds, if America changes.
As it is now in the U.S., there is too much to lose. "We could have our kids taken, our car and assets most certainly would be seized," he says. Kubby is brooding, a face he hasn't shown before. "They could take all my medicine. Throw me in jail. Kill me."
Each year in America, about 750,000 people are arrested for pot crimes. According to a 2001 federal study, marijuana is one of America's biggest cash crops, legal or illegal, fetching $10.6 billion annually on the black market. Richard Cowan, a marijuana activist who moved to Vancouver out of contempt for the U.S. drug war, says America needs to be reminded what this fight is all about.
"It isn't about being drug free," Cowan argues. "It's about being free."