Supreme Court of Canada Affirms Immunity from Arrest in s.4.1(2) of the Controlled Drugs and Substances Act

Background

In September 2020, the Accused and three other individuals were travelling in a truck when one of the occupants had a fentanyl overdose. A member of the group called 911.

By the time the first officer had arrived on the scene, the individual was already receiving medical attention. The officer observed two men, one of whom was the Accused, lying under the truck. She saw a small bag containing a white substance on the driver’s side of the truck, smelled marijuana, and noticed signs of drug impairment in the other individuals at the scene.

The Accused was detained and produced a small case from his pocket that contained syringes. He was arrested for possession of a controlled substance. Officers conducted a search of the truck and individuals’ belongings, locating drugs and drug paraphernalia, handguns, firearm parts, and ammunition. The Accused was charged with a variety of offences and argued to exclude evidence on the basis that his section 8 and 9 Charter rights were breached, relying on section 4.1(2) of the Controlled Drugs and Substances Act.

In 2017, Parliament passed the Good Samaritan Drug Overdose Act, which added section 4.1 to the Controlled Drugs and Substances Act. Section 4.1(2) reads:

Exemption — medical emergency

(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.

Section 4.1(2) effectively acts as an immunity for possession of a controlled substance to those good Samaritans who call for help or remain at the scene of a drug overdose where evidence of that offence is discovered at the scene. In this case, there was no dispute that the Accused remained at the scene of a medical emergency within the meaning of section 4.1, or that the evidence was obtained as a result. The Supreme Court of Canada considered whether this section also acts as immunity from arrest, in addition to being charged or convicted.

The courts below were split. The trial judge admitted the evidence and convicted the Accused for various firearms offences and possession of identity documents intended to be used for identity fraud, but did not directly address the impact of s.4.1(2). The Court of Appeal unanimously allowed the appeal, quashing all of the convictions and concluding that s.4.1(2) provided immunity from arrest.

Decision

In a 6:3 decision, the Supreme Court of Canada dismissed the appeal, concluding that the immunity from charge and conviction necessarily implies an immunity from arrest.

The SCC emphasized that the purpose of section 4.1 was protecting public safety and public health, and was enacted in the context of the federal government’s overarching Canadian Drugs and Substances Strategy, which focused on harm reduction in its approach to substance use. While the statutory language did not explicitly use the word “arrest”, modern statutory interpretation principles supported the view that immunity from arrest was necessary to achieve Parliament’s purpose, which was to save lives.

Further, the Supreme Court:

1. found that an interpretation of the provision that distinguished immunity from arrest and immunity from charge may not be apparent to the public;
2. pointed out how Parliament drew the line at one offence – possession under s.4(1), rather than expanding the immunity to more serious offences such as drug trafficking or weapon possession; and
3. re-emphasized the principle that an arrest cannot be made solely for the purpose of an investigation.

In making this decision, the Supreme Court found it fit to outline other lawful powers that police have at the scene of a drug overdose:

1. securing the scene and asking questions about the overdose that may help with the medical treatment required, prevent the use of tainted drugs by others, or identify the source of contaminated drugs that could pose further risks of overdose;
2. detaining individuals where it is reasonably necessary in the totality of the circumstances, weighing the seriousness of the risk to public or individual safety against the liberty interests of members of the public at the scene;
3. exercising the search and seizure powers still available, such as plain view seizure and warrantless seizures in exigent circumstances; and
4. other arrest and detention powers outside the scope of s.4.1(2) immunity, including investigative detention, arrest for breach of the peace, or the power to arrest for offences other than simple possession.

The Supreme Court concluded that the only interpretation of the circumstances was that the Accused was arrested for possession of a controlled substance and the subsequent evidence of drug trafficking and firearms was conducted incidental to that arrest.

As section 4.1(2) immunizes eligible individuals from arrest for simple possession, his arrest was unlawful, and the subsequent evidence obtained incident to arrest was also unlawful. On balance, the Supreme Court found that the seriousness of the Charter breach warranted acquittal.

Conclusion

This decision clarifies the law in that police cannot arrest and search good Samaritans on the grounds that an offence of simple possession was committed. R. v. Wilson is a reminder of the principle that arrests cannot be made solely for investigative purposes. Officers responding to the scene of an overdose must be clear in which police powers they are exercising in the course of an investigation or risk exclusion of evidence.