No Arrests for Drug Possession at an Overdose

Pivot to intervene at the Supreme Court of Canada in R v Wilson

Fighting clawbacks to the Good Samaritan Drug Overdose Act

An overdose is a medical emergency. Period. Unfortunately, it is all too often treated by police as an opportunity to pursue criminal investigations of people at the scene. The effects of this punitive policy can be fatal, with extensive research showing that a fear of criminalization can stop people from calling for emergency assistance during overdose events, or lead people to flee the scene before first-responder aid arrives. This deadly reality is precisely what led the federal government to pass the Good Samaritan Drug Overdose Act in 2017: a law that tries to encourage people to call 911 when an overdose occurs, by providing some legal protection against drug possession criminalization.

Now, through a series of appeals, the government of Saskatchewan is attempting to whittle down the Act’s already-meagre protections, arguing that while the Act protects against charges and convictions of simple possession, it does not protect against arrests. The Supreme Court of Canada will now settle the matter. R v Wilson will impact people in every province across the country. At a time when more than 20 people in Canada are dying each day from the unregulated drug market, these attacks on medical care are unconscionable.

It is critical that we defend what minimal protections exist for people who use drugs amid an eight-year-old drug poisoning crisis and widespread state-sponsored neglect. That’s why we’re intervening in these proceedings. Pivot staff lawyer Caitlin Shane, alongside criminal defence lawyer Mark Iyengar (MI Law), will argue that for the Act to save lives — as intended — the community must trust that the Act will prioritize harm reduction at the scene of an overdose. This means interpreting the law in a way that protects against criminalization for those who call for help — including protection against simple possession charges, convictions, and arrests.


Read Our Full Argument Here

The Good Samaritan Drug Overdose Act 

The Good Samaritan Drug Overdose Act was introduced in 2017 as a way to encourage people to call 911 during overdose events. Whether they are the caller, the person needing medical attention, or another person at the scene, the Act provides limited immunity against charges of simple drug possession (section 4(1) of the CDSA), and breaches of court conditions (i.e., parole, pre-trial release, probation, and conditional sentence orders) where the underlying offence is simple drug possession.

The Act was adopted shortly after the federal government replaced its National Anti-Drug Strategy with the Canadian Drugs and Substances Strategy in 2016, under which it adopted a public health approach to substance use by “restor[ing] harm reduction as a key pillar of Canada’s drug strategy.” Alongside relaxed criteria for obtaining exemptions to operate supervised consumption services, the Act was part of Canada’s newly restored harm reduction pillar. It revised provisions of the primarily prohibition-focused CDSA to align with Parliament’s commitment to harm reduction and public health (as balanced against the existing pillars of prevention, treatment, and law enforcement).

Screenshot of the first page of the Good Samaritan Overdose Act Know Your Right facesheet

When the Act was enacted, Pivot created Know Your Rights cards and a Factsheet to help spread the word and to ensure people were aware of the Act’s application.

Screenshot of the front of the Good Samaritan Overdose Act Know Your Right card


Screenshot of the chart on the Good Samaratin Overdose Know Your Rights card

R v Wilson — The Case So Far

In 2020 in rural Saskatchewan, a woman overdosed on fentanyl. Fortunately, the people she was with acted quickly, performing life-saving CPR and calling 911 for emergency assistance. Despite the protections afforded under the Act, police arrested everyone at the scene for simple drug possession, including the woman who overdosed.

Police then used these arrests as a basis for conducting further investigations and, ultimately, laid charges for other criminal offences. The defendant, Mr. Wilson, was never actually charged or convicted of simple possession. Instead, the police used his arrest as an opportunity to search him, seize his belongings, and charge him with other criminal offences. The police nevertheless claimed the basis for his arrest was simple drug possession.

Mr. Wilson asserted that his Charter rights were violated because his detention and arrest were unlawful: how can a person be arrested for an offence for which they cannot be charged? What use is the Good Samaritan Drug Overdose Act if it protects against charges and convictions but not against arrests in the first place?

While the Provincial Court sided with the Saskatchewan government that the arrest was lawful, the Saskatchewan Court of Appeal agreed with the defence. Saskatchewan has now appealed that decision to Canada’s top court, where Pivot will be intervening.

Our Argument

Pivot has been granted leave to make submissions on the real-world impacts of potential clawbacks to the Act, and the need for laws like this one to grant vitally necessary legal protection in the face of a deadly drug poisoning crisis. This is the only way that the law can be effective in achieving its aim: saving lives.

Before the Supreme Court, Pivot will argue that the harm reduction purpose of the Act overrides the prohibitionist purpose of the CDSA; in fact, the Act aims to reduce the harms of prohibition itself. When drafting the law, it was clear that Parliament understood that the criminalization of drug possession was a source of harm, because the fear of prosecution was stopping people from engaging 911 emergency services or remaining at the scene when another person was experiencing an overdose. MPs repeatedly underscored the need to provide legal assurance to helpful bystanders, for whom the fear of conviction, charge, and arrest, was, before this law reform, enough to deter calls for help. The Act was their solution.

Pivot will also argue that authorizing arrests at overdoses for simple drug possession — a technicality advocated for by the Saskatchewan government — would seriously undermine the public’s trust in the law and its comprehension by people faced with a medical emergency. A law that aims to influence the behaviours of civilians (by encouraging calls to 911) must be clear and reliable. If the law is not clear, with police relying on technicalities and “gotchas” to evade the law’s amnesty, a person’s default may well be to avoid emergency help altogether out of fear of police involvement and potential criminal charges. This would undermine the goals of the Act and harm reduction more broadly. It would inevitably result in many more avoidable deaths and set a dangerous legal precedent across the country.

A Supreme Court hearing date has not yet been set in Mr. Wilson’s case, but stay tuned for updates.


 

Get Updates

Using the law as a catalyst for positive social change, Pivot Legal Society works to improve the lives of marginalized communities.