Calling 911 about an overdose cannot result in drug possession arrest, finds SK appeal court

Parliament added s. 4.1(2) to the Controlled Drugs and Substances Act (CDSA) in 2017 through the passage of the Good Samaritan Drug Overdose Act to reduce overdose deaths by encouraging people at the scene of an overdose to call emergency services. Under the provision, a person seeking medical or law enforcement assistance because someone is suffering from a medical emergency cannot be charged or convicted for possessing a controlled substance.

The debate in R v Wilson was whether the protection against charge and conviction extended to the police power of arrest, says Thomas Hynes, a lawyer at Pfefferle Law in Saskatoon and counsel for Wilson.

At trial, the judge rejected Wilson’s arguments that his rights under ss. 8, 9, and 10 of the Charter had been violated, and the evidence relating to the firearms should be excluded under s. 24(2). Wilson was not ultimately charged with drug possession but got an eight-year sentence for the firearms.

He appealed the convictions, arguing the discovery of the firearms was incidental to his initial arrest, which breached his ss. 8 and 9 Charter rights because the arrest was unlawful under the Good Samaritan Act. Section 8 is the right to be secure against unreasonable search and seizure. Section 9 is the protection from arbitrary detention.

Wilson argued that police powers of arrest and detention require an “underlying nexus to criminal activity.” Because under s. 4.1(2) he could not have been charged or convicted with possession of a controlled substance, the officer’s observation of evidence that he possessed a controlled substance did not indicate criminal activity.

Wilson and the intervenor, the John Howard Society of Saskatchewan, argued that if police have the power to arrest for simple possession in circumstances such as Wilson’s, that will frustrate Parliament’s purposes with the Good Samaritan Act and discourage people from seeking medical and police assistance in the event of an overdose.

The Crown argued that s. 4.1(2) merely prohibits charging and convicting for offences under the CDSA, so the provision has no application to Wilson’s case because the officers only detained and then arrested him. They also argued that Wilson’s arrest was authorized under s. 495(1), which allows the police to arrest without warrant a person who has committed or is believed on reasonable grounds to have committed an indictable offence. Because it was authorized by law, Wilson’s arrest was not arbitrary, said the Crown.

“We argued, and the Court of Appeal accepted, that there's no practical distinction there,” says Hynes. “There's no point of arresting someone if you can't charge them.”

Hynes says public knowledge is among the foundational components of the Good Samaritan law so that people at the scene of a drug overdose know they will not be charged for simple drug possession if they call for emergency help.

Justice Robert Leurer wrote the reasons for the panel and said that the Crown’s reliance on s. 495(1)(b) ignored that all state powers “are bounded by the principle that they are to be exercised only for the purposes for which they are given.” Leurer cited Chief Justice of Saskatchewan Robert Richards, who noted in R v Envirogun, 2023 SKCA 51 that state powers “must be exercised in good faith and in ways that serve the purpose of the statute that confers authority.”

Because the only purpose of arresting someone for a CDSA violation is to charge and convict them, a prohibition on the latter must also prohibit the former, said Leurer, finding the trial judge erred in concluding Wilson’s ss. 8 and 9 Charter rights were not infringed.

Because the court decided that the police found the firearms via Charter violation, it had to determine under s. 24(2) whether including that evidence would bring the administration of justice into disrepute. This is determined through the analysis from R. v. Grant, 2009 SCC 32, in which the court examines “the seriousness of the Charter-infringing state conduct, the impact of that violation on the accused’s Charter-protected interest, and society’s interest in having the charges adjudicated on their merits.” The court concluded that the Charter-infringing state conduct was “moderately serious,” the impact on Wilson’s Charter-protected interest was “moderately intrusive,” and society’s interest in adjudication of the case on its merits weighed heavily in favour of the evidence’s admission.

The Grant inquiry also involves a “final balancing” of the three lines of inquiry to assess the impact of the admission or exclusion of the evidence on the long-term repute of the administration of justice. The “moderately serious Charter breaches,” the “moderate intrusion on Mr. Wilson’s Charter-protected interests,” and the “serious impact on the Court’s adjudicative role if the impugned evidence is excluded” made for a difficult balance, said Leurer.

The judge ultimately found that it tipped in favour of exclusion. In addition to the fact that the police would not have known about the firearms if not for the Charter breaches and that there was nothing urgent about the circumstances that prevented the police from proceeding carefully and respecting Wilson’s rights, admission of the evidence would undermine Parliament’s purposes for passing the Good Samaritan law, he said.

The facts of the case show that Wilson’s companion, who lost consciousness after taking fentanyl, is only alive because they called 911, said the judge. This demonstrates a fulfilment of the Good Samaritan law’s objectives. But, if in the future, drug users at the scene of an overdose fear that the Act will not protect them, the likelihood of them calling 911 will be reduced. If the evidence is admitted in Wilson’s case, people in the same position as his companion in the future may not survive.