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Pot rights upheld by appeal court

December 5, 2002 Thursday Final Edition
Daryl Slade
Calgary Herald

Pot crusader Grant Krieger has won a partial, but significant victory in a federal Crown appeal of his right to grow and use cannabis marijuana for medical purposes.

On Wednesday, the Alberta Court of Appeal upheld Queen's Bench Justice Darlene Acton's ruling two years ago, in which she said it was unconstitutional for the federal government to prevent Krieger from being able to obtain the drug to alleviate pain caused by his multiple sclerosis.

"We agree with the trial judge that there is no legal forum of marijuana for the accused," Justice Peter Costigan said in speaking for fellow justices Neil Wittmann and Sal LoVecchio. "There is no evidence how it could be supplied, even if he had a Section 56 (federal government) exemption."

Krieger's lawyer, Adriano Iovinelli, said outside court it was an important decision that permits his client to continue to cultivate and use marijuana for his own use to alleviate chronic pain caused by multiple sclerosis.

"They upheld (Acton's) ruling from the voir dire, which found Grant Krieger's Section 7 charter rights were violated, specifically in the areas of liberty and health," Iovinelli said.

"There was a breach, and it wasn't a reasonable breach. The result was Grant Krieger was given a charter exemption to cultivate and possess marijuana for his personal use," said Iovinelli.

Acton had issued a stay of her ruling for one year, to permit the federal government an opportunity to provide a source for people who require marijuana for health reasons.

Alberta Court of Appeal Justice Willis O'Leary last year extended that stay indefinitely, until there is an application to the courts to remove it.

But the appellate court's three-justice panel also ruled the trial judge had wrongly instructed the jury in the defence of necessity for having the drug, and quashed Krieger's acquittal on possessing marijuana for the purpose of trafficking.

Krieger, 48, who has admittedly supplied others whom he believes require the drug for health reasons, will have to go back to arraignments on Feb. 12 to have a trial date set on that charge.

"As far as I'm concerned, there are no pot laws in this province," Krieger boldly declared outside court. "I'm ready to go in front of another jury for trafficking. The defence of necessity stands."

Crown lawyers Scott Couper and Janet Henchey declined to discuss the Court of Appeal ruling and said their next move is to go back to the federal government for instructions.

Iovinelli said, as it stands, it is status quo on Krieger's charter exemption.

But he suggested that would not apply to the general public as Ottawa would move quickly to do something if the stay was removed and it was generally believed the possession law was struck down.

"The reason for Acton's ruling was for there to be changes by the federal government," said Iovinelli. "There may or may not have been changes, but I'm leaning more towards yes, there have been.

"The stay continues and it's a benefit to my client that nothing happens, because he has a charter exemption to cultivate and possess marijuana."

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