'Good Samaritan' immunity from drug possession charges, convictions also extend to arrests: SCC

The police cannot arrest an individual for drug possession if they call emergency services or stay to help when another person overdoses, the Supreme Court of Canada ruled in a 6-3 decision Friday, clarifying the scope of a 2017 “Good Samaritan” law that grants limited criminal immunity to people in such scenarios.

The decision in R. v. Wilson affirms a 2023 Court of Appeal for Saskatchewan ruling that acquitted a man of various firearms and identity fraud convictions. The man, Paul Eric Wilson, had been arrested for – but not charged with – drug possession. That arrest led to a search, during which police found evidence of the firearms and identity fraud offences.

Writing for the majority, Supreme Court Justice Andromache Karakatsanis said an interpretation of the “Good Samaritan” law “that provides immunity not only from charge and conviction, but also from arrest on that charge, reflects the fact that our law has never permitted arrest purely for the purposes of investigation and tightly circumscribes the power to arrest and the power to search incidentally to arrest.”

She added that such an interpretation “does not create a threat to public or officer safety.

“When responding to the scene of a drug overdose, the police still retain all their usual powers to respond to evidence of crimes other than the specific offence for which [the “Good Samaritan” law] offers an immunity and to ensure both their own safety and the safety of the public.”

Justices Mahmud Jamal, Suzanne Côté, and Malcolm Rowe dissented, arguing that interpreting the law in such a way does pose a risk to public safety. The dissenting justices said Wilson’s convictions should have been restored.

The case can be traced back to September 2020, when a woman named Cheryl Delorme overdosed on fentanyl while in a truck with three others, including Wilson, in a small town in Saskatchewan.

The group performed CPR on Delorme and called 911. While Delorme recovered in an ambulance, an RCMP officer who had arrived at the scene noticed several signs — including the odour of marijuana and a bag that appeared to contain crystal methamphetamine — that led her to believe the individuals possessed drugs. The officer arrested all four individuals for simple possession of a controlled substance under the Controlled Drugs and Substances Act.

Other police officers then searched the truck and found bags with modified handguns, firearm parts, ammunition, and evidence of drug trafficking. They arrested each of the individuals except Delorme again, this time for gun and trafficking offences. Wilson was later charged with firearms and identity fraud offences.

However, he was not charged with drug possession pursuant to s. 4.1(2) of the Controlled Drugs and Substances Act. Added to the CDSA in 2017 via a law called the Good Samaritan Drug Overdose Act, s. 4.1(2) grants individuals limited immunity from being charged with simple possession of a controlled substance when they call emergency services or stay at the scene of a drug overdose. Parliament introduced the act to encourage people to seek emergency services during overdose events.

Wilson applied for an order to exclude the evidence of his alleged offences, relying on s. 4.1(2) of the CDSA. He argued that his first arrest for drug possession was arbitrary because the law immunized him from drug possession charges. He then claimed that because this first arrest was arbitrary, the subsequent police search that led to his firearms and identity fraud charges violated his s. 8 and s. 9 Charter rights to be free from unreasonable search or seizure and to be free from arbitrary detention.

A trial court admitted the evidence and convicted Wilson of various firearms offences and possession of identity documents intended to be used for identity fraud. He received a global eight-year sentence.

The Court of Appeal for Saskatchewan unanimously set aside all of Wilson’s convictions. The appellate court concluded that s. 4.1(2) of the CDSA prevented Wilson from being arrested for drug possession. The court said that admitting the evidence that was found as a result of that arrest would “bring the administration of justice into disrepute.” 

The SCC majority sided with the appellate court. Acknowledging that s. 4.1(2) of the CDSA “does not explicitly include the word ‘arrest’ and only references immunity from being ‘charged’ and ‘convicted,’” the majority said it was nevertheless important to ask whether “s. 4.1 of the CDSA limits the power to arrest by necessary implication.” The majority said yes.

“It is accepted by both parties that Parliament’s goal in enacting s. 4.1(2) of the CDSA was to save lives by encouraging individuals at the scene of an overdose to call 911,” Karakatsanis wrote. “But the strong disincentive created by the threat of arrest and the consequences that may flow from such an arrest would substantially undermine this life-saving purpose.”

The justice noted that Canadian law “has long prohibited a warrantless arrest under s. 495 of the Criminal Code for purely investigative purposes.” She wrote that while an arrest does not always have to be followed by a charge and prosecution, arresting an individual because they committed an offence for which they have explicit immunity is unlawful.

Karakatsanis added that by granting immunity from arrest, s. 4.1(2) “does not affect other existing police powers and does not leave the police powerless to protect public safety at the scene of a drug overdose,” since  “all other relevant powers remain available to the police when they respond to a situation falling within the scope of s. 4.1(2).”

These include being able to execute an extensive range of search and seizure powers while responding to an overdose, like seizing drugs and other items that are out in the open and obtained by the commission of an offence, or searching a person to seize firearms and other weapons under the terms of  s. 117.04(2) of the Criminal Code. That section allows police to search for and seize weapons from a person without a warrant if they believe it is unsafe for that person to possess any weapon.

Police also have arrest and detention powers outside the scope of the s. 4.1(2) immunity, including the power of investigative detention in certain circumstances.

“Because s. 4.1(2) immunizes eligible individuals from arrest for simple possession, based on the record here, the arrest of Mr. Wilson was unlawful and breached his s. 9 right,” Karakatsanis wrote.

“The record indicates that the arrest was expressly for the offence of simple possession, and the evidence grounding an arrest for that offence was discovered as a result of Mr. Wilson having remained at the scene of the drug overdose,” the justice added. “In turn, this means that the search incident to that arrest was not authorized by law and was a breach of Mr. Wilson’s s. 8 right.”

In the dissent, Jamal wrote that he would have allowed the Crown’s appeal of the Court of Appeal for Saskatchewan’s decision to acquit Wilson. The justice wrote that in his view, “the text, context, and purpose of s. 4.1(2) of the CDSA confirm that the provision provides only a limited exemption from being ‘charged or convicted’ of simple possession but does not prohibit an arrest for that offence.”

Jamal noted that s. 4.1(2), like the CDSA as a whole, “seeks to balance public health, by preventing overdose deaths, and public safety, by preventing harm to society from dangerous drugs, including by suppressing their availability.”

He added that “a court cannot consider the public health objective alone and pursue it at all costs, while ignoring the public safety objective. This is especially so when such an approach entails absurd consequences.

“Here, interpreting s. 4.1(2) to prohibit the police power to arrest for the offence of simple possession means that the police cannot detain to investigate that offence either,” Jamal said. “This will place the public and the police at great risk.”

In a statement to Canadian Lawyer on Friday, Thomas Hynes, a lawyer with Pfefferle Law Office who represented Wilson, said he and his client were pleased with the high court ruling.

“The majority of the Supreme Court’s decision respects what Parliament intended Canada’s Good Samaritan laws to be,” Hynes said. “Good Samaritans like Mr. Wilson should not expect to be arrested for simple drug possession offences at the scene of overdose emergencies, given that Parliament wanted to incentivize people calling for help in emergency overdose situations.”

A spokesperson for the Attorney General for Saskatchewan said the ministry “is pleased that the Supreme Court has clarified the scope of the police arrest power at the scene of drug overdose medical emergencies.

“This clarification will benefit citizens, police officers, and the administration of justice going forward.”