The Supreme Court of Canada has delivered a landmark judgement that affirms the Good Samaritan Drug Overdose Act, clarifying that people who call 911 during an overdose will not face arrest for possession.
The majority decision was reached on October 24 in the case, R. v Wilson. In September 2020, Paul Wilson pulled over his truck in rural Saskatchewan to report the overdose of a woman, Cheryl Delorme, on the side of the road. After an ambulance had stabilized Delorme, Constable Heidi Jo Marshall of the Royal Canadian Mounted Police arrived on the scene and arrested Wilson, Delorme and two others.
Following the arrest, Wilson’s truck was searched and according to court submissions from prosecutors, weapons, ammunition, drugs and “drug-trafficking tools” were found by police.
“It sounds very simple, but there’s been a lot of debate about whether or not someone can be arrested because the legislation says you can’t be charged or convicted,” DJ Larkin, executive director of the Canadian Drug Policy Coalition (CDPC), told Filter of the decision. “Supreme Court judgments apply nationally, so now the most important thing is to get the message out so people understand they should be safe from arrest for simple possession [when] saving a life.”
“Even though someone can’t be charged or convicted, some police were still arresting people based on suspicion of simple possession,” they added.
Larkin explained that though Wilson was charged with possession with the purpose of trafficking and other firearm-related charges, the issue, “is that it all started with arresting him because he was at the scene of an overdose, which according to police was sufficient to give them suspicion that he was in possession of drugs for personal use.”
Larkin said the interveners argued there were three core principles that the court needed to employ in its analysis.
Larkin and the CDPC were among a host of interveners in the case, alongside the Association des intervenants en dépendance du Québec and Harm Reduction Nurses Association.
Larkin said the interveners argued there were three core principles that the court needed to employ in its analysis. The first being that any public health-related legislation, especially the Controlled Drugs and Substances Act, has to be interpreted through the lens of reducing harm. “You have to interpret this legislation to prevent injury, reduce harm and save lives—and [the court] said that very clearly.”
“Second, we argued that you need to make it simple,” Larkin said. “No one who is trying to call 911 while saving a life should need a law degree to understand what their risk is.”
Third, assumptions regarding the benefit to public safety during arrests and drug seizures during overdose response needed to be tested, Larkin said. “The courts said that essentially we need to prioritize the significant public health benefit of encouraging people to call 911 over the remote possibility of a public safety benefit of arresting and searching someone.”
The arguments that law enforcement made in R. v Wilson relied heavily on this supposed possibility, Larkin said. “That’s based on the hypothesis that if you seize someone’s drugs, making drugs less available somehow has a safety benefit. There’s considerable academic research indicating that the opposite is true.”
Several studies and government reports have found that drug seizures are associated with increased risk of overdose, prevent people from accessing life-saving services or calling emergency services during overdoses, and increase harm to people who use drugs.
“The last argument [made by law enforcement and federal prosecutors] was that it would overly limit officers’ ability to do investigations for their own safety,” Larkin said. But if someone pulls a knife out, say, at the scene of a medical emergency, officers always have the power to arrest someone on the basis that they reasonably believe that their safety is in danger. “That hasn’t changed.”
“We need to be able to send a really clear message to young people … otherwise they might be too scared to call.”
To Larkin, this decision is particularly important for youth. “We need to be able to send a really clear message to young people who have a friend who might be using [drugs] for the first time … they need to know immediately that they’re not going to get in trouble because otherwise they might be too scared to call.”
They added that for those who have historically been more likely to have negative interactions with law enforcement—people who lack housing, Indigenous, Black and other racialized people—it signals that police in these instances are expected to provide a medical response, not a punitive one.
Corey Ranger, a British Columbia nurse and president of the Harm Reduction Nurses Association, said it’s incredibly important that communities know that they have legal protection if they stay at the scene of an overdose.
“It’s not just about fatal overdoses,” he told Filter, “but it’s about the visible and irreparable harm that’s happening to people when they’re not getting timely rescue breathing, naloxone administration or someone to stay with them to monitor for secondary overdose.”
A recent study showed that people who experience toxic drug events are 19.5 times more likely to have encephalopathy or an acquired brain injury than the general population. “What we know now is that because of the unpredictability of the drug supply that is now also saturated with benzodiazepines, animal tranquilizers and fentanyl, the risk for hypoxic and toxic brain injury has gone up so high in British Columbia,” Ranger said.
Harm reduction proponents have “a lot of work ahead of us to prevent this very harmful, regressive policy backslide that’s happening across the entire country.”
But he noted that while the Supreme Court of Canada decision is “extremely positive,” harm reduction proponents also have, “a lot of work ahead of us to prevent this very harmful, regressive policy backslide that’s happening across the entire country.”
Municipalities, provinces and even the federal government have backtracked significantly in recent years on progressive drug policies. For instance, Bill C-2, the Stronger Borders Act, is a largely interdiction-focused bill that expands police powers and border security measures—ostensibly aimed at reducing the trafficking of fentanyl across borders, following pressure from the Trump administration. This, Ranger said, will only increase the volatility of the drug market.
Several provinces have either considered or already moved to expand involuntary drug treatment legislation. Involuntary treatment as an intervention has limited evidence to support its effectiveness at encouraging abstinence among people who use drugs. Several studies have pointed to links between involuntary drug treatment and increased risk of overdose.
Prescription-based safe supply programs in British Columbia have also been significantly curbed in the past year. And Toronto has closed down overdose prevention sites, while prohibiting the distribution of safe supply and other harm reduction supplies at its new provincially-funded health centers. The provincial government of Saskatchewan, meanwhile, has not only restricted syringe service programs, but released legislation in the spring that would classify fentanyl, methamphetamine and hypodermic needles as “street weapons.”
“Politicians need to do better, and this court case is really, really clear on that.”
“Nothing is being done from an evidence-based standpoint across all levels of government,” Ranger said.
Asked what has been driving the shift away from harm reduction-oriented policies, Larkin and Ranger agree that much of what we’re seeing is a result of misinformation and politicized ideological shifts.
“People who are getting clicks and likes online and [we have] a reactive government that is responding to the moral panic to avoid getting voted out … so we have policymakers with extremely liberal backgrounds doing extremely conservative things to retain their position of power,” Ranger said.
“The only thing we can do to fix this is really advocate that our policymakers … start being more truthful with us,” Larkin added. “Poltical messaging influences public opinion and then public opinion influences policy. And that is why we’re seeing steps away from evidence-based policy.”
How significant, then, is the new Supreme Court ruling in this national context?
“It has to be a win,” Larkin said. “Having the Supreme Court without caveat, without limitations, say, ‘You will not get arrested for drug possession, please call 911,’ is really important … Politicians need to do better, and this court case is really, really clear on that.”
Photograph of Supreme Court of Canada by Jamie McCaffrey via Wikimedia Commons/Creative Commons 2.0
