Acquittal highlights need for police to learn about immunity at drug overdose scenes: lawyer

By Terry Davidson

Law360 Canada (September 20, 2023, 1:15 PM EDT) -- Police forces need to educate officers on “Good Samaritan” laws, which protect people seeking help for those experiencing drug overdoses from being arrested for carrying illegal narcotics, themselves, say lawyers behind the acquittal of a man in Saskatchewan.

The Sept. 8 Court of Appeal for Saskatchewan decision in R v. Wilson 2023 SKCA 106 involved appellant Paul Wilson, who was arrested along with two others for “possession of a controlled substance” after one of them called 911 when another person with whom they were travelling overdosed on fentanyl.   

The four had been travelling by truck in the village of Vanscoy at the time. They remained at the scene until first responders arrived.  

Police who responded to the call first arrested Wilson and the others for possession, then did a search of Wilson’s backpack, which resulted in him being charged — and later convicted — with several firearms offences.

At the centre of the Appeal Court case was whether Wilson should have been arrested in the first place, given this happened during the course of the officers’ response to the emergency made by Wilson and the group.

In the end, the Appeal Court said Wilson should not have been arrested, citing the federal government’s Good Samaritan Drug Overdose Act, which took hold May 2017.

As a result, the court found the subsequent search of Wilson that resulted in the gun charges to have been unlawful and in breach of Wilson’s Charter rights.

The Good Samaritan Drug Overdose Act was passed unanimously by Parliament in a bid to curb the rise in opiate deaths in Canada. Under the legislation, people who seek emergency help for others in the throes of overdose are immune to being charged with simple drug possession, themselves — provided such incriminating evidence is found.

The Act’s aim, to eliminate the fear of prosecution and thus encourage people to call for help stay at the scene until that help arrives.

Wilson appealed his convictions.

The Crown argued that while the Act removes officers’ ability to lay possession charges in these circumstances, it does not deal with the act of arresting people.

But Appeal Court Justice Robert Leurer, with Justices Lian Schwann and Jillyne Drennan in agreement, found that “the only purpose for the first arrest of Mr. Wilson was to charge him” with possession.

The legislation does not allow for this charge in such circumstances, he found.

Pierre Hawkins, John Howard Society of Saskatchewan

Pierre Hawkins, John Howard Society of Saskatchewan

“This means that [Wilson’s] rights under ss. 8 and 9 of the Charter of Rights and Freedoms were violated by the search that was incidental to it,” wrote Justice Leurer. “I am also satisfied that the admission of the evidence obtained because of the unlawful search would, in the circumstances of this case, bring the administration of justice into disrepute. Without that evidence, the Crown has no case against Mr. Wilson.”

Pierre Hawkins, who acted for intervener the John Howard Society of Saskatchewan, said a message has been sent to law enforcement.

“The court is saying to police forces, train your officers on this legislation,” said Hawkins. “The officers need to know how to behave when they arrive at the scene of an overdose where help has been sought, and to individual officers that they should know about it.”

Hawkins went on to note the federal government’s intention in enacting the legislation.

“They are saying that … police conduct shouldn’t be permitted to undermine Parliament’s intention in cases like these, and that ultimately the key here is that drug users know about this protection and trust this protection. The court ultimately determined that if the evidence were to be admitted and it weren’t thrown out, then the administration of justice would be brought into disrepute because … the intent of Parliament in enacting the legislation, and the legislation’s effectiveness, would be completely undermined.”

Thomas Hynes, Pfefferle Law

Thomas Hynes, Pfefferle Law

Wilson’s lawyer, Thomas Hynes, of Pfefferle Law, spoke of the ruling’s potential precedence.

“The Saskatchewan police cannot arrest someone found committing an offence when person cannot be charged with it,” said Hynes. “Obviously, we’d like that to extend to police across the country. But I’d say that [the] broader significance to it [is] that police should be expected to know what the law is; that police should be expected to know that responding to overdose calls; that they are not allowed to start arresting people for simple possession charges if they find drugs on the scene.”

Crown Erin Bartsch was asked for comment. Instead, a spokesperson said the decision was being reviewed.

“As this matter has not been concluded, we are unable to comment further at this time,” they said in an email.

As of Sept. 14, the Crown had yet to decide if leave to appeal would be sought from the Supreme Court of Canada.

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