Supreme Court of Canada clarifies Good Samaritan law

While the Good Samaritan Drug Overdose Act (GSDOA) ensures immunity from charges for simple drug possession during an overdose, the Supreme Court of Canada says that protection must also extend to arrests.

That’s the finding of a 6-3 decision, which also determined that the search conducted after the arrest in the case before the court was unlawful.

The issue at the heart of R. v. Wilson was how to interpret the act, which was passed in 2017 to provide some legal protection for individuals who seek emergency help during an overdose, whether they witness or experience it. The goal was to reduce the fear of police being called to an overdose and encourage people to call 911 to help save a life.While the legislation protected a person from charges of possession of a controlled substance during an overdose, and for breaching conditions regarding simple drug possession, it made no mention of arrests. 

In September 2020, Paul Eric Wilson was one of four people who remained at the scene of a fentanyl overdose after 911 was called. When the police arrived, they arrested him for simple possession of the substance. In the subsequent search of a vehicle at the scene, they found a backpack that contained a firearm and documents related to identity theft. Wilson was not charged for simple possession because of the GSDOA, but was charged and convicted of the firearms and related offences. 

The Saskatchewan Court of Appeal later overturned his conviction and entered acquittals on all charges. The arrest was deemed to be in contravention of the GSDOA, meaning the subsequent search was also in violation of Wilson’s Charter rights.

The Supreme Court of Canada agreed with that decision.

“The immunity from charge and conviction for simple possession explicitly mentioned in s. 4.1(2) of the [Controlled Drugs and Substances Act] includes, by necessary implication, immunity from arrest for that offence,” Justice Andromache Karakatsanis wrote for the majority. 

“This interpretation best serves the clear purpose of the provision: to save lives.”

The majority stated that, although the word “arrest” is not included in the Act's text, immunity from charge and conviction would be legally understood to include immunity from arrest for that charge.

The Court also found that this immunity does not affect other police powers to respond to evidence of crimes other than the simple possession offence, such as seizing controlled substances in plain view. Police can still conduct certain warrantless searches if necessary to protect their own safety or that of the public.

Kyla Lee, with Acumen Law in Vancouver and past chair of the CBA’s criminal justice section, was pleased to see the Court take an interpretation consistent with the intent of the Act.

“The majority was abundantly clear about how exposing people to the risk of arrest for simple possession, even if they can’t be charged with it in the circumstances, would discourage people from calling 911, which would defeat the entire purpose of the legislation,” she says.

The decision also talked about the history of arrest, and the stigmatizing factors of being arrested and the impact it has on people, even if they can’t be charged. Lee says it’s important to see that kind of language from the Supreme Court of Canada. It will be helpful for judges considering section 24(2) of the Charter in other warrantless arrest situations.

However, she’s disappointed that police can still conduct other searches even if they’re unable to arrest for simple possession. It “quite widely” opens the door for police to come up with other justifications for searches, like officer safety, to look for evidence that might suggest another offence has been committed. 

Lee expects there will likely be some abuse of that power, but hopes that if police are found to be looking to arrest rather than save a life, courts will try to rein in that kind of conduct.

Caitlin Shane, a staff lawyer with Pivot Legal Society in Vancouver, another intervenor in the case, says the Court’s decision comes at a time when there is a need for clarity and support for public health, given that all levels of government are retreating from harm reduction and prioritizing criminalization.

“We’re happy that they really seemed to understand that if the law is unclear and its enforcement is based on technicalities, the community is not going to understand it, (and it’s) going to be ineffective in its primary goal of saving lives,” she says.

As a result, Pivot can let the drug-using community know that this law applies to arrests, which gives them more security when they call for help during an overdose. The group has been advocating that police shouldn’t intervene with overdoses at all. It should be paramedics to make it clear that it’s a medical situation, as police attendance continues to deter people from calling 911.

Shane says the purpose of the Act is not only for people to call 911, but to remain at the scene to administer first aid and answer questions about the situation when police arrive, which is “crucial to saving lives.”

DJ Larkin, executive director of the Canadian Drug Policy Coalition, which also intervened in the case, says the clarity the decision brings is also important for healthcare workers advising people on calling 911, as fear of arrest can cause delay, which can cause brain injury and death.

Because fear of arrest is particularly prevalent for marginalized and racialized communities, Larkin says the Court is clear that there needs to be increased willingness to call 911.

Thomas Slade, a partner with Supreme Advocacy in Ottawa, which was not involved in the case, notes that it marks an interesting contrast to the Court’s decision earlier this year in Piekut v. Canada (National Revenue) when it comes to statutory interpretation, where the majority and dissent in the two cases essentially flipped.

He points out that in Piekut, Justice Mahmud Jamal wrote the majority reasons, emphasizing the text of the legislation as the anchor in statutory interpretation. In contrast, Justice Karakatsanis wrote the dissenting reasons, emphasizing a greater focus on purpose and context.

“In Wilson, we see the opposite, with Justice Karakatsanis writing for a majority, while Justice Jamal is now in dissent,” Slade says. 

“Given the close split decisions and the difficult practical problems these appeals tend to deal with, I expect the Court will continue to go back and forth on the approach to statutory interpretation.”