In response to rising numbers of opiate-related drug overdose deaths, the government of Canada enacted the Good Samaritan Drug Overdose Act in 2017 as an amendment to the Controlled Drugs and Substances Act. The Good Samaritan Drug Overdose Act intended to reduce the number of deaths that resulted from drug overdoses.
Research has demonstrated that people who witness an overdose are often reluctant to contact authorities for help due to fear or concern of getting into trouble themselves, which means that the person who has overdosed often dies as a result of failure to intervene. In an effort to remedy this situation and to encourage people to seek help for those who need it, the Good Samaritan Drug Overdose Act amended the Controlled Drugs and Substances Act to include a new provision concerning medical emergencies.
Amendment Encourages Overdose Witnesses to Contact Authorities for Help
The Good Samaritan Drug Overdose Act (sometimes shortened to the Good Samaritan Act) provides:
4.1(2) No person who seeks emergency medical or law enforcement assistance because that person, or another person, is suffering from a medical emergency is to be charged or convicted of an offence under subsection 4(1) if the evidence in support of that offence was obtained or discovered as a result of that person having sought assistance or having remained at the scene.
The intention behind this amendment was to encourage people who witness an overdose – who may themselves have participated in drug-taking in some manner – to contact authorities for help without fear of reprisal or being charged with a crime themselves. In plain language, the amendment states that a person who calls the police or an ambulance for help with a drug overdose (whether their own or someone else’s) cannot be charged with or convicted of any crime that was discovered as a result of that person having sought help or remaining at the scene of the overdose.
Drug Overdose Is Reported and All Involved, Including Overdose Victim, Are Arrested
The limits of this law have recently been tested in the Saskatchewan Court of Appeal decision R. v. Wilson, which is currently pending appeal to the Supreme Court of Canada. In Wilson, the appellant/accused (Wilson) had been out with three friends on the morning of September 10, 2020, driving around in Vanscoy, Saskatchewan. One of his companions, Ms. Delorme, became unconscious after using fentanyl, which prompted another member of their group to contact 911 for assistance.
When a constable from the RCMP arrived at the scene, EMS personnel were already in attendance and working on Ms. Delorme. The RCMP officer observed a baggie containing a white substance which she suspected to be crystal meth on the ground near the driver’s door of the vehicle, and she noted that she could smell marijuana. Given these observations, the officer decided to detain the appellant and the other two companions, Ms. Kerfoot and Mr. Mann, for a drug investigation. Each of the three requested a lawyer. The RCMP officer then asked the appellant to empty his pockets, which contained drug paraphernalia. On this basis, the officer arrested all three of the conscious individuals at the scene for simple possession of a controlled substance.
Shortly after, two additional RCMP constables arrived at the scene and placed the appellant and Mann in their police vehicle. They also arrested Ms. Delorme, who had recovered consciousness, and searched the car at the scene. As a result of finding weapons in a backpack, a scale and baggies/needles in the vehicle, the police arrested the appellant, Mann and Kerfoot, for trafficking and gun offences.
Witness to Overdose Charged with Multiple Offences
The appellant was ultimately charged with several offences related to fraudulent identity documents and impersonation, in addition to which he was charged with a number of firearms offences. He was not charged with any breach of the Controlled Drugs and Substances Act, despite that being the Act for the offences underlying his initial arrest.
Appellant Convicted of Firearms Offences at Trial Due to Weapons Found in Truck
The appellant sought a declaration at trial that his section 8 and 9 Charter rights had been violated and requested an order excluding all evidence related to the firearms found in the truck. With regard to the right to be free of unreasonable search and seizure under section 8 of the Charter, the trial judge was satisfied “that the search of the truck – which did not belong to [the appellant] – was fleeting and related to officer safety. Thus, [the appellant] had neither a personal privacy or property interest that was breached”. Concerning the appellant’s section 9 right to be free from arbitrary detention or imprisonment, the trial judge was satisfied that the RCMP had the right to detain the appellant for investigative persons and, since the detention was not unduly prolonged or egregious and had been based on reasonable grounds, his section 9 Charter rights had not been violated.
As the trial judge had found the appellant’s Charter rights had not been violated, all evidence was allowed in for the trial. The appellant was acquitted of all charges related to identity fraud, convicted of the charges related to the firearms, and received an 8-year sentence.
Appellant Argued Giving Police the Ability to Arrest in His Case Frustrates Purpose of Good Samaritan Act
The appellant appealed both his conviction and sentence, arguing that:
“… his ss. 8 and 9 Charter rights were violated because his arrest was unlawful as (a) the Good Samaritan Act prohibited the police from arresting him for the purposes of charging him with simple possession of a controlled substance, and (b) the search leading to the discovery of the backpack and its contents was incidental to that prohibited arrest.”
The appellant further submitted that if the police had the power to arrest someone for simple drug possession in cases like his, it would frustrate the purpose of the Good Samaritan Drug Overdose Act. He argued that allowing power that power would “discourage people in similar situations from reaching out for medical and police assistance”.
Appellant’s Charter Rights Violated by Improper Search & Arrest for Basic Possession
The Court of Appeal explained that if the appellant’s arrest for simple possession were unlawful, then his section 9 Charter rights would have been breached. By extension, the Court stated, there would have also been a breach of his rights under section 8, as the search that led to the discovery of the backpack containing the weapons.
The Court determined there was no purpose for the appellant’s first arrest after the police detained him, other than to charge him with simple possession of drugs. That charge, the Court noted, was prohibited by the Good Samaritan Drug Overdose Act, as the evidence of drug possession was found as a result of the appellant and his companions seeking medical assistance for Ms. Delorme. As such, the Court concluded the appellant’s section 8 and 9 Charter rights had clearly been violated.
Determining Whether the Evidence’s Admission Brings the Administration of Justice Into Disrepute
The Court of Appeal next considered section 24(2) of the Charter, which provides that where evidence in a case was obtained in such a manner as to violate the accused’s Charter rights, such evidence must be excluded where its admission would bring the administration of justice into disrepute. When assessing whether the administration of justice would be brought into disrepute, the Court must undertake the Grant analysis, which requires that the Court consider:
- The seriousness of the Charter-infringing government behaviour;
- The impact of the violation on the accused’s interests as protected under the Charter; and
- Society’s interest in having the matter proceed to adjudication (trial) on the case’s merits.
The Seriousness of the Charter-Breaching Behaviour
Regarding the first issue, the seriousness of the behaviour that breached the appellant’s Charter rights, the Court of Appeal explained that the more “severe or deliberate” the state conduct leading to the Charter violation, the greater the need for courts to dissociate themselves from that conduct. They do so by excluding the evidence linked to that conduct, which is critical for “preserving public confidence in and ensuring state adherence to the rule of law”.
The Court found the officers’ conduct in arresting the appellant (Wilson) and his companions, in clear violation of their Charter rights, constituted “moderately serious” misconduct.
The Impact of the Violation on the Accused’s Interests
The Court of Appeal found there had been a violation of the appellant’s privacy as his backpack was unlawfully searched by the RCMP, who discovered evidence that was used to charge the appellant with a number of crimes. That evidence could not have been lawfully obtained under the circumstances. As a result, the Court was satisfied the impact of the breach of the appellant’s Charter rights was, at the very least, “moderately intrusive”.
Society’s Interest in Having the Matter Proceed to Trial
While the conclusions on the first two branches of the Grant analysis lent themselves to a finding that the evidence against Wilson should have been omitted, the Court of Appeal found the third criterion, society’s interest in having the matter proceed to adjudication on the merits, favoured admission of the evidence. This is because of the seriousness of the gun-related charges and the negative impact guns have on our society as a whole.
Court of Appeal Finds Evidence Should Be Excluded Due to Violation of Good Samaritan Act
Although the Court of Appeal found the third Grant element favoured admitting the evidence found by the RCMP’s search, the Grant analysis requires a “final balancing” of all three factors. The Court concluded that in this case, the balance weighed in favour of excluding the evidence for four reasons:
- Despite the seriousness of the crimes for which the appellant had been convicted, the crimes would have been entirely unknown but for the violation of his rights;
- There was no urgency in the circumstances of the arrest, and the officers could and should have taken the time to learn whether they were entitled to arrest the appellant for any crime at all;
- The fact that the gun crimes with which the appellant was charged were serious does not mean the violations of his Charter rights could be ignored; and
- Most importantly, to allow the evidence’s admission would “undermine Parliament’s purposes for passing the Good Samaritan Act”.
Good Samaritan Drug Overdose Act to Be Considered by SCC in Wilson Appeal
On February 22, 2024, the Crown in the Wilson case was granted leave to appeal the decision of the Saskatchewan Court of Appeal to the Supreme Court of Canada. This means that the Supreme Court of Canada will review the decision and hopefully provide clear guidance concerning how the Good Samaritan Drug Overdose Act is to be interpreted and applied, such that police and other law enforcement personnel will be provided with clear guidelines concerning their powers of arrest and charging.
Contact Barrison Law for Skilled Criminal Defence Representation Against Drug & Gun Charges in Oshawa
At Barrison Law, we keep apprised of all changes with respect to drug/controlled substance laws and provide knowledgeable representation to those facing drug and weapons charges across Durham Region. Our criminal defence lawyers are experienced in having drug charges reduced, negotiating lighter sentences, or even having charges withdrawn.
Barrison Law is conveniently located steps from the Durham Consolidated Courthouse and offers 24-hour emergency phone service. We accept cases through Legal Aid and by private retainer and service all of Durham Region, including Oshawa, Whitby, Ajax, Pickering, and the surrounding communities, including Cobourg, Peterborough, and Lindsay. To schedule a confidential consultation, contact us online or by phone at 905-404-1947 (toll-free at 1-888-680-1947).