Date: 20050127
Docket: IMM-2196-04
Citation: 2005 FC 138
Toronto, Ontario, January 27th, 2005
Present: The Honourable Madam Justice Heneghan
BETWEEN:
STEVEN WILLIAM TUCK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] Mr. Steven William Tuck (the "Applicant") seeks judicial review of the decision of the Refugee Protection Division, Immigration and Refugee Board (the "Board"), dated February 17, 2004. In its decision, the Board determined that the Applicant is neither a Convention refugee nor a person in need of protection pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act").
BACKGROUND
[2] The Applicant is an American citizen. He came to Canada on July 1, 2001 and presented a claim for refugee status on April 16, 2002. The basis for his refugee claim was a fear of persecution in the United States by reason of his political opinion and membership in a particular social group, that is persons who use cannabis sativa ("cannabis" or "marijuana") as a medical treatment.
[3] Alternatively, the Applicant claimed to be a person in need of protection pursuant to section 97(1) of the Act, on the basis that if removed to the United States, he would personally be subjected to a risk to his life or to a risk of cruel and unusual treatment or punishment based on his life threatening need for marijuana that he feared would be denied him in that country.
[4] The Board heard evidence from the Applicant about his cultivation of marijuana plants and the distribution of that product to persons using marijuana as pain relief. The Applicant testified about a raid on his farm on July 24, 2000 when 839 marijuana plants were found in an indoor "grow operation". Another raid occurred on March 12, 2001 and the Applicant and his spouse were issued a "felony ticket" that required their appearance in court.
[5] The Applicant testified that upon attendance in the Court, he and his spouse were advised that no charges had been, or would be, laid against them.
[6] The Applicant believed that he was being harassed by local law enforcement officials and on April 14, 2001, he filed a formal complaint and civil lawsuit against the local Sheriff. Three days later, he was charged with six offences relative to the searches and seizures of July 2000 and March 2001. The Applicant appeared in Court and signed a "waiver non-appearance" agreement that allowed him not to be present for Court appearance until a jury was selected for trial.
[7] A preliminary hearing was held in Humbolt County Superior Court on July 25, 2001. The Applicant did not appear and a bench warrant was issued for his arrest. According to the Applicant, his lawyer apparently advised him that it was the intention of the Sheriff to deprive him of both morphine and cannabis if he were arrested and detained pending trial.
[8] At the time that the Applicant was experiencing the raids and charges, he had been living in the State of California. The State of California had enacted the Compassionate Use Act, 1996, Cal. Health & Safety Code, Section 11362.5 (the "CUA") in 1996. That law allowed persons requiring medical marijuana to grow their own plants. The effect of this legislation was limited to the State of California and directly conflicted with the position adopted by the Federal Drug Enforcement Agency, which regards marijuana as a Schedule I narcotic with no medicinal value.
[9] Under federal legislation, the possession and use of marijuana could lead to federal charges by federal law enforcement authorities against the Applicant. He fears such charges may be laid in the future and that he would be denied use of marijuana, as a medical treatment, if convicted and imprisoned in relation to such charges. There was no evidence that federal charges had been laid against the Applicant.
[10] The Board reviewed the evidence submitted by the Applicant and concluded that he lacked a subjective fear of persecution and risk of harm in the United States. It found his fear to be speculative. Nonetheless, it proceeded to address the issue of state protection and ultimately concluded that the Applicant had failed to show, with "clear and convincing" evidence, that the United States was unwilling or unable to protect him from risk or harm. In this regard, the Board relied upon its reasons in Kubby et al. v. Canada (Minister of Citizenship and Immigration) (17 November 2003), RPD File #VA2-01374, online: IRB < http://www.irb.gc.ca/en/decisions/Kubby/va2_01374_e.pdf > , a case involving similar facts about the use of marijuana for medical purposes by an American citizen and resident of California.
[11] The Board considered the Applicant's claim to be a person in need of protection, pursuant to section 97 of the Act. It concluded that, having regard to the totality of the evidence, the Applicant had failed to show that there are substantial grounds to believe that he would be personally subjected to a danger of torture or risk of cruel and unusual treatment or punishment if returned to the United States.
DISCUSSION AND DISPOSITION
[12] The standard of review applicable to decisions of the Board is patent unreasonableness; see Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (T.D.). In my opinion, having regard to this standard, there is no basis for judicial intervention in the Board's decision here.
[13] It is clear from the evidence that the basis of the Applicant's claim is a fear of prosecution by the federal authorities in the United States. The Board found that fear to be speculative. I agree. It is enough to refer to the following extract of the Applicant's testimony before the Board to show that the Board's conclusions, with respect to both the claim for Convention refugee status and being a person in need of protection, are supported by the evidence:
...
If they will give me a letter from the federal government right now saying the federal government is not going to prosecute me for just these offences, you know, for my medical cannabis activities - - not a blanket, whatever I did for anything, but just for the medical cannabis reasons, if they would give me a non-prosecution letter, I'll go back and stand state trial tomorrow. I'm not afraid of a state jury doing me, because what I did, I was legit.
But now though every day I stay up here my evidence gets colder and longer off so I'm in this dichotomy now of my case is getting worse every day and the feds are still not committed on me or not, yea or nay. That's all I've asked out of them. Are you going to charge me or not? Because if the feds are not going to charge me, then I was going to do what you just stated. I want to negotiate a return to America with the state authorities. I'm not worried about that.
[14] Nor did the Board err in its assessment of the availability of state protection. The United States of America is a democracy. The CUA is a law of general application in the State of California. The Federal Drug Enforcement Agency is a federal agency charged with the administration of federal legislation concerning the use of drugs. It is beyond the purview of this Court to comment upon the choices of elected legislative bodies in the enactment of legislation affecting residents of the State of California or the Republic of the United States of America, respectively.
[15] In the result, the Application for Judicial Review is dismissed. There is no question for certification arising.
ORDER
The Application for Judicial Review is dismissed. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2196-04
STYLE OF CAUSE:
STEVEN WILLIAM TUCK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: October 28, 2004
REASONS FOR ORDER
AND ORDER BY: HENEGHAN, J
DATED: January 27, 2005
APPEARANCES:
Mr. Rudolph Kischer FOR APPLICANT
Mr. Keith Reimer FOR RESPONDENT
SOLICITORS OF RECORD:
Embarkation Law Group FOR APPLICANT
Vancouver, B.C.
John H. Sims, Q.C.
Deputy Attorney General of CanadaFOR RESPONDENT