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Top court unanimously strikes down conviction of pot activist
10-26-06 l Macleans

OTTAWA (CP) - An Alberta judge who ordered a jury to convict a medical marijuana activist on pot trafficking charges went too far and violated the rights of the accused, says the Supreme Court of Canada.

In a 7-0 judgment Thursday, the court overturned the 2003 guilty verdict against Grant Krieger of Calgary, who says he should have the right to distribute marijuana to people who need it to ease the pain of serious illness.

The legal effect is to send the case back for a new trial - if the Crown chooses to proceed. It would be the third time Krieger faces a jury on the same charge of possession of marijuana for purposes of trafficking.

Krieger, who suffers from multiple sclerosis, has legal permission to smoke pot for medical purposes.

He doesn't have permission from the federal government to supply it to others - but freely admits that he's done so anyway.

Krieger has endured a long legal odyssey sine he was first charged in 1999 after police seized 29 marijuana plants, the fruit of a grow-op he admitted to maintaining at his home.

He was acquitted by the first jury to hear the case in 2001, but that verdict was later thrown out by the Alberta Court of Appeal.

At the second trial in 2003, Justice Paul Chrumka of Court of Queen's Bench instructed the jury that they had no choice, based on the evidence in the case and the letter of the law, except to find Krieger guilty.

Two jurors objected and said their consciences wouldn't permit them to convict. They asked to be excused from he case, but the judge refused the request.

Justice Morris Fish, writing for the unanimous Supreme Court, said Chrumka's actions deprived Krieger of his right to a meaningful jury trial.

"In effect, the trial judge reduced the jury's role to a ceremonial one," wrote Fish. "He ordered the conviction and left to the jury, as a matter of form but not of substance, its delivery in open court."

The judge had the legal discretion to refuse the request by the two jurors to withdraw from deliberations, said Fish.

But the way he went about it, and the comments he made, only reinforced the fact that he was ordering them to reach a guilty verdict.

"The jury did not understand that it had the final call on Krieger's guilt or innocence," said Fish.

A subsidiary issue in the case was the thorny problem of "jury nullification"-in effect, the ability of jurors to disregard the letter of the law and reach any finding they feel is proper.

Fish was careful in addressing that issue, noting that it is well-established under Canadian law that jurors have no "right" to act in that manner.

Nevertheless, he said, as a matter of practical reality "they do have the power to do so when their consciences permit of no other course."

Krieger escaped a jail term for his conviction because Chrumka decided, when the time came for sentencing, that it would be "extremely harsh" to send him to prison considering his frail health.

He sentenced Krieger to a nominal one day of confinement, but ordered that no committal warrant be executed, meaning there was no actual jail time served.

While he was awaiting the Supreme Court ruling, Krieger was convicted last month on another trafficking charge in the Alberta courts. He is scheduled to be sentenced in February or that offence.