Canada’s Supreme Court to Rule On Scope of Good Samaritan OD Law

January 14, 2025

In September 2020, a truck pulled over in rural Saskatchewan, Canada, to report an overdose.

Cheryl Delorme had lost consciousness and stopped breathing, and those in the truck with her began performing CPR and called 911.

By the time Constable Heidi Jo Marshall of the Royal Canadian Mounted Police arrived on the scene, an ambulance had already attended and was able to stabilize Delorme, who had indeed overdosed.

Believing the group possessed fentanyl, Marshall then arrested Delorme and her companions, including Paul Wilson and two others. After the arrests, she searched the vehicle and allegedly found weapons, ammunition, drugs and “drug-trafficking tools,” according to court submissions from prosecutors.

Only Wilson was charged, and his charge did not include simple possession, but rather nine firearms offenses and two counts of unlawful possession of another person’s identification documents.

Judges will determine whether that arrest and search were lawful. In doing so, they’ll be defining the scope of the country’s Good Samaritan Drug Overdose Act.

Four-and-a-half years later, on January 14, Wilson’s case went to the Supreme Court, where nine judges will determine whether that arrest and search were lawful. In doing so, they’ll be defining the scope of the country’s Good Samaritan Drug Overdose Act (GSDOA), which grants some legal protection to people at the scene of an overdose after 911 is called.

In written submissions to the Supreme Court of Canada, Wilson’s lawyers argued he and his companions did as parliament expected of them: calling for help when Delorme was in medical distress and saving her life.

Marshall’s behaviour, and that of Crown lawyers since then, however, went against the will of parliament, according to Wilson’s lawyers.

“Parliament enacted the GSDOA as a compromise,” they wrote. “In exchange for calling emergency services or remaining at the scene of a drug overdose, conduct parliament acknowledged saves peoples’ lives, those Good Samaritans that did would be granted qualified immunity from certain conduct that was otherwise criminal.”

The law amended the Controlled Drugs and Substances Act to state that no one who calls for help in the event of an overdose can be charged or convicted under section 4(1), which defines simple possession of drugs.

The case, R v. Wilson, will effectively hinge on the court’s interpretation of the fact that the law prohibits charges and convictions for simple drug possession—without mentioning arrests.

Saskatchewan’s attorney general argues that the absence of “arrest” from the law’s wording should be taken literally, meaning Marshall’s actions are not covered by the exemption.

However, Wilson and a slate of intervenors argue that the spirit of the law suggests otherwise.

“The people with [Delorme] did what we hope anyone would do for a loved one … Despite that, she and those who stayed with her were arrested for drug possession.”

That includes three organizations—the Canadian Drug Policy Coalition (CDPC), the Harm Reduction Nurses Association (HRNA) and the Association des intervenants en dépendance du Québec (AIDQ)—that came together to file an intervenor submission in the case.

“The purpose of that law is clear: to prevent harm, to save lives, to encourage people not to use alone and to call 911 in case of an emergency,” said DJ Larkin, executive director of the CDPC, in a briefing with media and the public on January 13, ahead of the Supreme Court hearing.

“The people with [Delorme] did what we hope anyone would do for a loved one,” Larkin said. “In that circumstance, they called 911, provided CPR and stayed on the scene. Their actions saved her life. Despite that, she and those who stayed with her were arrested for drug possession.”

Larkin added that the law should be simple to understand in order to encourage people to call for help, and that making a distinction between arrest and charges would only complicate it and undermine its purpose.

Corey Ranger, president of the HRNA, said his group does naloxone training wherein they explicitly tell people they need to stay with a person who overdosed, “that leaving them behind is a risk for death, and that the Good Samaritan laws will protect you.”

Changing this training to tell people the GSDOA “might protect you” would end with “a lot more people abandoned at the scene of an overdose, and that means more preventable harm,” he said.

It’s not just a higher risk of death, he added—an overdose victim who does not receive CPR is also at a higher risk of a brain injury due to lack of oxygen.

“If we want fewer workers finding people dead in tents, alleyways, public restrooms, then we must not compromise on the Good Samaritan provision.”

“Our members represent expert nurses working street outreach, community mental health and substance use across this country. Many of them, myself included, know the feeling of finding someone deceased and alone far too late for resuscitation. The experience of moral distress and moral injury is devastating,” Ranger continued.

“If we want fewer workers finding people dead in tents, alleyways, public restrooms, then we must not compromise on the Good Samaritan provision. This is about protecting the health and safety of everyone.”

Larkin said a decision in favour of the prosecution would further narrow a law that’s already limited.

While the GSDOA protects 911 callers from charges for simple possession and from breaching bail or parole conditions, it doesn’t afford the same protections for other charges, such as possession for the purpose of trafficking.

Louis Letellier de Saint-Just, the chairman of AIDQ, said it also isn’t just about arrests and charges, when police responding to overdose calls can lead to drug users being harassed or facing invasive questioning. He said this reflects an issue of training for police to inform them about the law and how it is applied.

Police could still seize people’s drugs, “which leads to a whole host of other problems and other potential harms down the road, and is demonstrably shown to actually increase risk for overdose for people,” Ranger added.

A 2021 study confirmed this, with the “vast majority” of a focus group of 109 Ontario residents reporting negative experiences with police responding to overdoses, which discouraged them from calling for assistance in future. And nearly all questioned why police are attending medical events in the first place.

Those findings were affirmed in a 2022 study by the same authors, focusing on 40 individuals in three cities. It found that many people are confused about the protections afforded by the GSDOA, and that, even with an understanding of the law, distrust of police prevents people from calling for help.

Larkin preempted suggestions from conservatives that a ruling to include arrest in the scope of the GSDOA would constitute “judicial activism,” noting the court does “not make decisions lightly.”

Organizers of the January 13 briefing said a decision usually takes about six months following a hearing.

The reason for the three organizations intervening in the case, Larkin said was to try to prevent stigma from being reflected in the decision.

“Public discourse around the unregulated drug crisis is complex,” Larkin said. “It can be hard for the public to know what information is well-founded and what is based in stigma and misinformation, and the same is true in the courtroom.” 

“We do not say this lightly,” Larken added, pointing to a 2024 analysis of 129 Canadian criminal court decisions that “finds that moralizing language, including words and tropes that cannot be interpreted as purely impartial, are entrenched and normalized in judicial decision-making.”

That analysis found portrayals of drug trafficking were largely “as serving personal financial gain and demonstrating callous disregard for others,” with defendants “frequently described as ‘preying on’ or ‘exploiting’ vulnerable members of society.”

“Greed was commonly referred to as an aggravating factor when considered during sentencing, conveying significance of the conduct as immoral and selfish and producing a connection to the sentencing principle of gravity, thus justifying heavier sentences,” the paper reads.

Another study published in December looked at the use of manslaughter charges for people who shared, sold or provided drugs to a person who then fatally overdosed. While police portray such charges as justice for the community, the study found the “vast majority” of people charged used drugs themselves, and they were often intimately known to the person who died.

Organizers of the January 13 briefing said a decision usually takes about six months following a hearing.

 


 

Photograph of the Supreme Court of Canada by Mike via Wikimedia Commons/Creative Commons 2.0

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Dustin Godfrey

Dustin is a freelance journalist based in unceded Coast Salish territories in so-called Vancouver, Canada. They cover issues around drug policy, housing and justice.