The Good Samaritan Drug Overdose Act protects people from criminal charges for drug possession if they call 9-1-1 to report a drug overdose.
Under the law of possession in criminal law, you can be arrested even if you do not physically have any drugs on you. For example, if you are in someone else’s car as a passenger and the police find drugs concealed in an opaque bag in the dashboard, you can still get charged with possession of those drugs under the Controlled Drugs and Substances Act. If you’re in the same room as any illegal substance, you can be criminally charged.
The Good Samaritan Drug Overdose Act
In 2017, Parliament enacted the Good Samaritan Drug Overdose Act, which allows a person to be immune from charges or convictions for the possession of illegal drugs if they call for help and/or remain at the scene of a drug overdose. So, if you find yourself in a situation where there are drugs present in the room and you call 9-1-1 because you suspect a drug user has overdosed, you are immune from prosecution for what’s found on scene under the Act.
R v Wilson: Clarifying the limits of the Act
Yet, in 2020, the police arrested Paul Eric Wilson, a good Samaritan who remained on scene after a 9-1-1 call was made from the scene of an overdose. He was charged with the possession of drugs and then other offences including possession of a firearm and ammunition. The court convicted him at trial for all of the offences except possession of the drugs.
The Crown argued that the Good Samaritan Drug Overdose Act prevents good Samaritans from being “charged or convicted” but did not prevent the police from arresting people for the purpose of investigating other criminal charges. The Supreme Court of Canada and the Saskatchewan Court of Appeal disagreed. The Supreme Court of Canada in R. v. Wilson agreed with the Saskatchewan Court of Appeal and found that the trial judge was wrong to convict Mr. Wilson of any of the offences.
The Supreme Court of Canada emphasized that the distinct purpose of the Good Samaritan Drug Overdose Act is to prevent deaths due to drug overdoses. If people are afraid of their own legal jeopardy when they phone the police to help someone suffering from an overdose, it’s easy to see why many would be reluctant to call when faced with the choice.
Furthermore, the Supreme Court emphasized that our criminal law has never allowed an arrest for purely investigative purposes when a person cannot be charged with an offence. In response to the Crown’s argument that police should not be left powerless to investigate further criminal offences, the Court also made clear that the Act does not prevent police from carrying out their other lawful duties:
“For example, the police can still seize controlled substances in plain view. They can conduct certain warrantless searches in exigent circumstances or if necessary to protect their own safety and that of the public. The police can still detain individuals if reasonably necessary in all the circumstances, conduct investigative detentions, or arrest them where there are sufficient grounds to do so outside the scope of the immunity.”
There was no dispute that Mr. Wilson remained at the scene of a medical emergency within the rules set by the Good Samaritan Drug Overdose Act. Because of this, the Supreme Court found that the police breached Mr. Wilson’s rights under the Charter of Rights and Freedoms by arresting and searching him. As a remedy, the Court excluded the evidence against him and acquitted him on all charges.
The Supreme Court of Canada cited Mr. McKinnon’s comments when introducing the Good Samaritan Drug Overdose Act in the House of Commons to make this point:
“Canadians need to take care of each other, especially the vulnerable among us. This bill means that when lives are at stake, people can take action without fear of penalty. Hopefully, they will pick up the phone and save someone’s son or daughter. People will live who might otherwise have died.”
Prioritizing Lives Over Arrests
The Wilson case demonstrates the importance of a human life even in the face of chargeable offences against the good Samaritan. While complicated relationships between marginalized communities and police can influence whether police are given information for an investigation, the Good Samaritan Drug Overdose Act allows for a legal truce that puts saving human lives over making further arrests. The Supreme Court made it clear that police have no leeway to violate the Act and that the community should feel safe and comfortable to make life-saving calls when they should be made.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Melody Izadi
