SUPREME COURT OF CANADA
Appeal Heard: January 14, 2025 Judgment Rendered: October 24, 2025 Docket: 40990
Between: His Majesty The King Appellant and Paul Eric Wilson Respondent - and - Director of Public Prosecutions, John Howard Society of Saskatchewan, Pivot Legal Society, Canadian Civil Liberties Association, Criminal Lawyers' Association (Ontario), Canadian Drug Policy Coalition, Association des intervenants en dépendance du Québec and Harm Reduction Nurses Association Interveners Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ.
Reasons for Judgment: (paras. 1 to 94)
Karakatsanis J. (Wagner C.J. and Martin, Kasirer, O'Bonsawin and Moreau JJ. concurring)
Dissenting Reasons: (paras. 95 to 246)
Jamal J. (Côté and Rowe JJ. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
His Majesty The King Appellant
v.
Paul Eric Wilson Respondent
and
Director of Public Prosecutions,
John Howard Society of Saskatchewan,
Pivot Legal Society, Canadian Civil Liberties Association,
Criminal Lawyers' Association (Ontario),
Canadian Drug Policy Coalition,
Association des intervenants en dépendance du Québec and
Harm Reduction Nurses Association Interveners
Indexed as: R. v. Wilson
2025 SCC 32
File No.: 40990.
2025: January 14; 2025: October 24.
Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ.
on appeal from the court of appeal for saskatchewan
Constitutional law — Charter of Rights — Arbitrary detention — Search and seizure — Remedy — Exclusion of evidence — Federal legislation providing exemption from charge or conviction for possession of controlled substance to person who seeks assistance for medical emergency if evidence in support of offence obtained or discovered as result of person having sought assistance or having remained at scene — Accused arrested for possession of controlled substance at scene of overdose — Police conducting search incident to arrest and finding evidence of other offences — Accused charged with other offences and applying to exclude evidence on basis that he was immune from arrest for possession of controlled substance — Whether accused's rights to be secure against unreasonable search or seizure and to be free from arbitrary detention violated by arrest and search incident to arrest — If so, whether evidence should be excluded — Canadian Charter of Rights and Freedoms, ss. 8, 9 — Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 4.1(2).
Criminal law — Arrest — Possession of controlled substance — Exemption in case of medical emergency — Federal legislation providing exemption from charge or conviction for possession of controlled substance to person who seeks assistance for medical emergency if evidence in support of offence obtained or discovered as result of person having sought assistance or having remained at scene — Whether exemption from charge or conviction also prohibits police from arresting person on charge of possession — Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 4.1(2) — Criminal Code, R.S.C. 1985, c. C-46, s. 495.
In 2017, Parliament enacted the Good Samaritan Drug Overdose Act ("GSDOA"), which added s. 4.1 to the Controlled Drugs and Substances Act ("CDSA"). Section 4.1(2) of the CDSA provides immunity from being "charged or convicted" for possession of a controlled substance under s. 4(1) of the CDSA to those who call for help or remain at the scene of a drug overdose where evidence of that offence is discovered at the scene.
W remained at the scene of an overdose after 9‑1‑1 was called and was arrested for possession of a controlled substance contrary to s. 4(1) of the CDSA. A search incident to the arrest revealed evidence of other offences. W was not charged with possession of a controlled substance but was charged with various firearms offences and possession of identity documents intended to be used for identity fraud. W applied to exclude the evidence on the basis that his ss. 8 and 9 Charter rights were violated because he was immune from arrest pursuant to s. 4.1(2) of the CDSA.
The trial judge admitted the evidence and convicted W of various firearms offences and of possession of identity documents intended to be used for identity fraud. He concluded that the police did not breach W's s. 9 Charter right, but he did not directly address the impact of s. 4.1(2) of the CDSA on the lawfulness of the arrest. The Court of Appeal unanimously allowed W's appeal, finding that s. 4.1(2) of the CDSA made W's arrest unlawful, thereby breaching his s. 9 right. It excluded the evidence under s. 24(2) of the Charter and directed acquittals on all counts.
Held (Côté, Rowe and Jamal JJ. dissenting): The appeal should be dismissed.
Per Wagner C.J. and Karakatsanis, Martin, Kasirer, O'Bonsawin and Moreau JJ.: Section 4.1(2) of the CDSA makes arrest for possession of a controlled substance unlawful when the evidence justifying that arrest was discovered because a person sought emergency assistance for, or remained at the scene of, a drug overdose. While the word "arrest" does not appear in s. 4.1(2), the immunity from being "charged or convicted" necessarily implies an immunity from arrest for that same offence. The words "charged or convicted" must be read in their entire context to reflect Parliament's purpose and its understanding of the relationship between the various stages of the criminal process.
Legal change, such as a change in the availability of arrest powers, is not always effected through express statutory language. Despite apparent plainness in language, a provision must be interpreted considering its entire purpose and context. This is why a phrase in a statute cannot be definitively interpreted without considering the purpose and broader context of the provision.
Parliament intended immunity from arrest for the offence of possession of a controlled substance to form part of the immunity from charge and conviction for that offence. Its goal in enacting s. 4.1(2) of the CDSA was to save lives by encouraging individuals at the scene of an overdose to call 9‑1‑1. Allowing arrests for simple possession in this context would greatly undermine that life-saving goal. The threat of arrest and of the consequential searches and charges is a substantial disincentive for good Samaritans to call for help.
Achieving Parliament's goal requires a clear rule that can be broadly communicated to and understood by those affected by drug overdoses. An interpretation of s. 4.1(2) which distinguishes between immunity from arrest and immunity from charge on the same offence may not be readily apparent to the public. Parliamentary debates reflect that legislators understood the immunity to include immunity from arrest.
In enacting s. 4.1(2), Parliament did not intend to allow the police to arrest individuals for the offence of simple possession, despite those individuals being immune from charge and conviction, to further other law enforcement goals. Canadian law has long prohibited a warrantless arrest under s. 495 purely for investigative purposes and tightly circumscribes the power to search incident to an arrest.
However, the s. 4.1(2) immunity from arrest for possession of a controlled substance does not affect other existing police powers. When responding to the scene of a drug overdose, the police still retain all their usual powers to respond to evidence of crimes other than the specific offence for which s. 4.1(2) offers an immunity and to address safety issues that may arise at the scene.
In the instant case, W was arrested for possession of a controlled substance, and the evidence grounding an arrest for that offence was discovered as a result of him having remained at the scene of a drug overdose. The subsequent search which discovered the evidence of other offences was conducted incident to that unlawful arrest. The arrest therefore violated W's s. 9 Charter right, and the search violated his s. 8 Charter right. The evidence must be excluded pursuant to s. 24(2) of the Charter.
Per Côté, Rowe and Jamal JJ. (dissenting): The appeal should be allowed, the acquittals set aside, and the convictions restored. The limited exemption under s. 4.1(2) of the CDSA against being charged or convicted of the offence of simple possession does not prohibit a lawful arrest for that offence under s. 495(1) of the Criminal Code.
A statutory provision must be interpreted based on its text, context, and purpose to find a meaning that is harmonious with the legislation as a whole. The object of a statute and that of a provision must also be considered with close attention always being paid to the text of the statute, which specifies the precise extent to which a legislature intends to change the law.
To consider whether s. 4.1(2) of the CDSA prohibits the police from exercising the statutory power to arrest without warrant under s. 495(1) of the Criminal Code, it is necessary to review both provisions and their respective legislative schemes. Under s. 495(1)(a), a peace officer may arrest without warrant a person whom the officer believes on reasonable grounds has committed or is about to commit an indictable offence. Under s. 4.1(2), a person cannot be "charged" or "convicted" of the offence of simple possession in specified circumstances. These are distinct provisions with different legal consequences.
The text of s. 4.1(2) of the CDSA limits the medical emergency exemption to charge and conviction. Section 4.1(2) does not mention "arrest" at all. On its face, it provides an exemption from only two distinct and well‑established steps in the criminal process: being "charged" or "convicted", each of which is a legal term of art whose legal meaning is different from that of "arrest".
The statutory context of s. 4.1(2) limits the medical emergency exemption to the prosecution stage of the criminal process. It confirms that s. 4.1(2) of the CDSA does not prohibit the police from exercising the statutory power to arrest under s. 495(1) of the Criminal Code for simple possession, and that the offence of simple possession remains an offence even at the scene of a medical emergency.
The purpose of s. 4.1(2) to balance public health and public safety is promoted by allowing an arrest for simple possession. Although one purpose of s. 4.1(2) of the CDSA is to promote public health by removing a legal disincentive to calling for help, that is not the only purpose or policy objective of s. 4.1(2). The Member of Parliament who sponsored the bill expressly assured Parliament that the proposed measures would not limit police powers.
Moreover, expanding s. 4.1(2) to prohibit an arrest for simple possession exposes the police and the public to significant safety risks. First, it would be impractical because it would leave police officers in a state of uncertainty at the scene of an overdose and would limit their ability to properly fulfill their duties to protect life and public safety and to prevent crime. Second, prohibiting an arrest for simple possession would, by logical implication, also prohibit an investigative detention for that offence, exposing the police and the public to significant safety risks at the scene of an overdose where, as here, there is clear evidence of a continuing criminal offence of possession.
The police did not infringe s. 9 of the Charter. W's arrest without warrant was authorized by law, under s. 495(1) of the Criminal Code. The arresting officer noticed a baggie of what appeared to be crystal methamphetamine in plain view immediately upon arriving at the scene and then saw a streak of white powder appear on the ground near W's feet. The arrest was also conducted reasonably. The police further did not infringe s. 8 of the Charter, as the search incident to the lawful arrest was related to the arrest and motivated by concerns for public safety.
Cases Cited
By Karakatsanis J.
Referred to: Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; La Presse inc. v. Quebec, 2023 SCC 22; ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140; R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967; Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402; R. v. Basque, 2023 SCC 18; Celgene Corp. v. Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3; Fleming v. Ontario, 2019 SCC 45, [2019] 3 S.C.R. 519; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Stairs, 2022 SCC 11, [2022] 1 S.C.R. 169; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. I.M., 2025 SCC 23; R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948; R. v. Morgentaler, [1993] 3 S.C.R. 463; 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587; Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37; Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234; Wiretap Reference, [1984] 2 S.C.R. 697; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; R. v. Campbell, 2024 SCC 42.
By Jamal J. (dissenting)
R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Piekut v. Canada (National Revenue), 2025 SCC 13; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43; R. v. Breault, 2023 SCC 9; MediaQMI inc. v. Kamel, 2021 SCC 23, [2021] 1 S.C.R. 899; Sun Indalex Finance, LLC v. United Steelworkers, 2013 SCC 6, [2013] 1 S.C.R. 271; Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5, [2019] 1 S.C.R. 150; 9354-9186 Québec inc. v. Callidus Capital Corp., 2020 SCC 10, [2020] 1 S.C.R. 521; Canada v. Loblaw Financial Holdings Inc., 2021 SCC 51, [2021] 3 S.C.R. 687; Dow Chemical Canada ULC v. Canada, 2024 SCC 23; R. v. Wolfe, 2024 SCC 34; Celgene Corp. v. Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3; La Presse inc. v. Quebec, 2023 SCC 22; British Columbia v. Philip Morris International, Inc., 2018 SCC 36, [2018] 2 S.C.R. 595; Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15; R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967; R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3; R. v. Lerke (1986), 1986 ABCA 15, 24 C.C.C. (3d) 129; R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234; Roberge v. The Queen, [1983] 1 S.C.R. 312; R. v. Biron, [1976] 2 S.C.R. 56; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402; R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575; R. v. Basque, 2023 SCC 18; R. v. Chabot, [1980] 2 S.C.R. 985; United States v. Patterson, 150 U.S. 65 (1893); R. v. Kalanj, [1989] 1 S.C.R. 1594; Morris v. The Queen, [1979] 1 S.C.R. 405; R. v. Whitfield, [1970] S.C.R. 46; R. v. Latimer, [1997] 1 S.C.R. 217; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250; R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. Downes, 2023 SCC 6; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; R. v. Ndhlovu, 2022 SCC 38; R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180; R. v. Rafilovich, 2019 SCC 51, [2019] 3 S.C.R. 838; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372; R. v. Varennes, 2025 SCC 22; ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140; R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948; R. v. I.M., 2025 SCC 23; R. v. Sharma, 2022 SCC 39; Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392; R. v. Heywood, [1994] 3 S.C.R. 761; Aube v. R., 2022 NBCA 65; R. v. Lévesque, 2021 QCCQ 9272; R. v. Beaulieu, 2023 QCCQ 8005; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Godoy, [1999] 1 S.C.R. 311; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; Fleming v. Ontario, 2019 SCC 45, [2019] 3 S.C.R. 519; R. v. Root, 2008 ONCA 869, 241 C.C.C. (3d) 125; R. v. Deutsch, [1986] 2 S.C.R. 2; R. v. Beaudette (1957), 118 C.C.C. 295; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408; R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725; R. v. Stairs, 2022 SCC 11, [2022] 1 S.C.R. 169; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2).
Colo. Rev. Stat. § 18‑1‑711(1) (2025).
Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 4 to 7.1, 11(7), 46 to 46.3, 55, 56, Schs. I, II, III.
Criminal Code, R.S.C. 1985, c. C‑46, ss. 24, 31, 86(2), 88, 90, 91(1), 92(1), 94, 95(1), 99(3), 109, 117.01(1), 117.04(2), 402.2(1), 403, 487.11, 489(2), Part XVI, 494, 495, 504, 524.
Criminal Code, 1892, S.C. 1892, c. 29, s. 552.
Del. Code Ann. tit. 16, § 4769(b) (2025).
Ga. Code Ann. § 16‑13‑5(b) (2025).
Good Samaritan Drug Overdose Act, S.C. 2017, c. 4.
Haw. Rev. Stat. § 329‑43.6(b) (2024).
Interpretation Act, R.S.C. 1985, c. I‑21, ss. 12, 34(2).
Miss. Code Ann. § 41‑29‑149.1(3)(a), (b) (2024).
N.M. Stat. Ann. § 30‑31‑27.1 (2025).
Or. Rev. Stat. § 475.898(1), (2) (2024).
Royal Canadian Mounted Police Act, R.S.C. 1985, c. R‑10, s. 18.
Tenn. Code Ann. § 63‑1‑156(b) (2025).
Authors Cited
Black's Law Dictionary, 12th ed., by Bryan A. Garner. St. Paul, Minn.: Thomson Reuters, 2024, "charge", "convict".
Brown, Desmond H. The Genesis of the Canadian Criminal Code of 1892. Toronto: Osgoode Society, 1989.
Canada. Department of Justice. Steering Committee on Justice Efficiencies and Access to the Justice System. Charge Screening Practices and Crown Evidentiary Thresholds in Canada, by Paul Lindsay et al. Ottawa, 2023.
Canada. Health Canada. About the Good Samaritan Drug Overdose Act, modified August 6, 2024 (online: https://www.canada.ca/en/health-canada/services/opioids/about-good-samaritan-drug-overdose-act.html; archived version: https://www.scc-csc.ca/cso-dce/2025SCC-CSC32_1_eng.pdf).
Canada. Health Canada. Good Samaritan Drug Overdose Act Becomes Law in Canada, May 4, 2017, modified August 13, 2018 (online: https://www.canada.ca/en/health-canada/news/2017/05/good_samaritan_drugoverdoseactbecomeslawincanada.html; archived version: https://www.scc-csc.ca/cso-dce/2025SCC-CSC32_2_eng.pdf).
Canada. Health Canada. Controlled Substances and Cannabis Branch. The Canadian Drugs + Substances Strategy: The Government of Canada's approach to substance use related harms and the overdose crisis. Ottawa, 2023.
Canada. House of Commons. House of Commons Debates, vol. 148, No. 22, 1st Sess., 42nd Parl., February 22, 2016, p. 1196.
Canada. House of Commons. House of Commons Debates, vol. 148, No. 48, 1st Sess., 42nd Parl., May 4, 2016, pp. 2893, 2895, 2898‑2900.
Canada. House of Commons. House of Commons Debates, vol. 148, No. 65, 1st Sess., 42nd Parl., June 3, 2016, pp. 4031‑32.
Canada. House of Commons. House of Commons Debates, vol. 148, No. 100, 1st Sess., 42nd Parl., October 28, 2016, pp. 6301‑3.
Canada. House of Commons. House of Commons Debates, vol. 148, No. 168, 1st Sess., 42nd Parl., May 2, 2017, p. 10678.
Canada. House of Commons. Standing Committee on Health. Evidence, No. 17, 1st Sess., 42nd Parl., June 15, 2016, p. 1.
Canada. Senate. Debates of the Senate, vol. 150, No. 80, 1st Sess., 42nd Parl., December 1, 2016, pp. 1910‑11.
Canada. Senate. Standing Senate Committee on Legal and Constitutional Affairs. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 21, 1st Sess., 42nd Parl., February 8 and 9, 2017.
Canada. Senate. Standing Senate Committee on Legal and Constitutional Affairs. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 23, 1st Sess., 42nd Parl., March 1 and 2, 2017.
Canadian Oxford Dictionary, 2nd ed. by Katherine Barber, ed. Don Mills, Ont.: Oxford University Press, 2004, "Samaritan".
Coughlan, Steve, and Glen Luther. Detention and Arrest, 3rd ed. Toronto: Irwin Law, 2024.
Grand Robert de la langue française (electronic version), "samaritain, aine".
Kasirer, Nicholas. "Canada's Criminal Law Codification Viewed and Reviewed" (1990), 35 McGill L.J. 841.
Klein, Alana. "Criminal Law and the Counter-Hegemonic Potential of Harm Reduction" (2015), 38 Dal. L.J. 447.
Martin, G. Arthur. "Police Detention and Arrest Privileges in Canada" (1961), 4 C.L.Q. 54.
Moallef, Soroush, et al. "A drug‑related Good Samaritan Law and calling emergency medical services for drug overdoses in a Canadian setting" (2021), 18:91 Harm Reduct. J. 1.
Penney, Steven, Vincenzo Rondinelli and James Stribopoulos. Criminal Procedure in Canada, 3rd ed. Toronto: LexisNexis, 2022.
Phillips, Jim, Philip Girard and R. Blake Brown. A History of Law in Canada, vol. 2, Law for the New Dominion, 1867-1914. Toronto: University of Toronto Press, 2022.
Rose, David. Quigley's Criminal Procedure in Canada. Toronto: Thomson Reuters, 2025 (loose‐leaf updated September 2025, release 4).
Salhany, R. E. Canadian Criminal Procedure, 6th ed. Toronto: Thomson Reuters, 2024 (loose‑leaf updated April 2025, release 1).
Sullivan, Ruth. The Construction of Statutes, 7th ed. Toronto: LexisNexis, 2022.
Williams, Glanville L. "Requisites of a Valid Arrest", [1954] Crim. L.R. 6.
APPEAL from a judgment of the Saskatchewan Court of Appeal (Schwann, Leurer and Drennan JJ.A.), 2023 SKCA 106, 429 C.C.C. (3d) 454, 91 C.R. (7th) 39, 539 C.R.R. (2d) 318, [2024] 2 W.W.R. 539, [2023] S.J. No. 323 (Lexis), 2023 CarswellSask 456 (WL), setting aside the convictions of the accused and entering acquittals on all counts. Appeal dismissed, Côté, Rowe and Jamal JJ. dissenting.
Erin Bartsch, for the appellant.
Thomas Hynes, Catriona Kaiser-Derrick and Nathan Metivier, for the respondent.
Janna A. Hyman and Colleen Liggett, for the intervener Director of Public Prosecutions.
Pierre E. Hawkins, for the intervener John Howard Society of Saskatchewan.
Mark Iyengar and Caitlin O. Shane, for the intervener Pivot Legal Society.
Sarah Rankin and Heather Ferg, for the intervener Canadian Civil Liberties Association.
Matthew R. Gourlay and Brandon Chung, for the intervener Criminal Lawyers' Association (Ontario).
Maxime Bédard and Meagan Berlin, for the interveners Canadian Drug Policy Coalition, Association des intervenants en dépendance du Québec and Harm Reduction Nurses Association.
The judgment of Wagner C.J. and Karakatsanis, Martin, Kasirer, O'Bonsawin and Moreau JJ. was delivered by
Karakatsanis J. —
I. Overview
[ 1 ] In response to a national public health crisis of overdoses and deaths caused by opioids, Parliament has sought to encourage people to call for emergency assistance and remain at the scene of a drug overdose when a life is endangered. In 2017, it enacted the Good Samaritan Drug Overdose Act, S.C. 2017, c. 4 (GSDOA), which added s. 4.1 to the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA). Section 4.1(2) provides immunity from being "charged or convicted" for possession of a controlled substance to those good Samaritans [1] who call for help or remain at the scene of a drug overdose where evidence of that offence is discovered at the scene. This appeal is about the scope of the immunity offered by the provision — in immunizing individuals from being "charged or convicted", did Parliament also intend to provide an immunity from arrest?
[ 2 ] Paul Eric Wilson was one of four people who remained at the scene of an overdose after 9-1-1 was called. Police arriving at the scene arrested them for the offence of possession of a controlled substance. A search incident to those arrests revealed evidence of other offences for which Mr. Wilson was eventually charged. Mr. Wilson was never charged with possession.
[ 3 ] The Crown appeals, arguing before this Court that police officers have lawful authority to arrest people for the offence of simple possession, and to search them incidentally to that arrest, even if those people are immune from charge and conviction for that offence because of s. 4.1(2). The Crown's position is that s. 4.1(2) is plainly and unambiguously limited to immunity from charge and conviction since it does not refer to arrest.
[ 4 ] I would dismiss the Crown's appeal. The immunity from charge and conviction for simple possession explicitly mentioned in s. 4.1(2) of the CDSA includes, by necessary implication, immunity from arrest for that offence. This interpretation best serves the clear purpose of the provision: to save lives.
[ 5 ] An arrest is a significant infringement of personal liberty. It can give rise to searches incident to arrest and to the prosecution of other criminal offences based on those searches. An interpretation of s. 4.1(2) which allows arrests for possession, and intrusive searches incident to those arrests, would undermine Parliament's goal of saving lives because the threat of arrest and searches would constitute a powerful disincentive to calling 9-1-1.
[ 6 ] Further, while the word "arrest" is not included in the text of s. 4.1(2), an immunity from charge and conviction would be commonly — and legally — understood to include immunity from arrest for that charge. The frequent mentions of immunity from arrest in the parliamentary debates leading to the enactment of s. 4.1(2) indicate that legislators intended and understood the immunity to include immunity from arrest.
[ 7 ] Finally, an interpretation of s. 4.1(2) that provides immunity not only from charge and conviction, but also from arrest on that charge, reflects the fact that our law has never permitted arrest purely for the purposes of investigation and tightly circumscribes the power to arrest and the power to search incident to arrest.
[ 8 ] This interpretation of s. 4.1(2) does not create a threat to public or officer safety. When responding to the scene of a drug overdose, the police still retain all their usual powers to respond to evidence of crimes other than the specific offence for which s. 4.1(2) offers an immunity and to address safety issues that may arise at the scene. The immunity from arrest applies only to the specific offence of simple possession when, and to the extent that, immunity from charge and conviction applies. In this case, the police had no basis on which to detain or arrest Mr. Wilson other than for the simple possession offence for which he had immunity.
[ 9 ] Parliament's purpose in enacting s. 4.1(2) was to save lives. Accepting the Crown's position in this appeal would not only undermine this clear purpose, but would also lead to an expansion of police powers by empowering the police to use arrests for offences immune from charge and conviction as a pretext for investigating those arrested persons for other offences.
II. Facts
[ 10 ] On September 10, 2020, Mr. Wilson and three other individuals were travelling in a truck through Vanscoy, Saskatchewan. When the group was near an elementary school, one of the occupants of the truck, Cheryl Delorme, began to overdose after having used fentanyl. A member of the group called 9-1-1.
[ 11 ] By the time the first police officer arrived at the scene, Ms. Delorme was already receiving medical attention from emergency medical services. The officer, Constable Heidi Jo Marshall, observed two men — one of them being Mr. Wilson — lying under the truck, seemingly attempting to repair something on the vehicle, as well as a third person standing beside it. She also noticed a strong odour of marijuana emanating from the area of the truck and saw a baggie of what appeared to be crystal methamphetamine on the ground nearby.
[ 12 ] As a result, Constable Marshall detained Mr. Wilson and the other two individuals to investigate possession of a controlled substance contrary to s. 4(1) of the CDSA. During that detention, Constable Marshall observed Mr. Wilson handling something in his pocket and saw some white powder on the ground near his feet. She formed the opinion that Mr. Wilson was in possession of controlled substances.
[ 13 ] Constable Marshall arrested Mr. Wilson and the other individuals, including Ms. Delorme, for possession of a controlled substance contrary to s. 4(1) of the CDSA. Two other officers who had arrived at the scene then conducted a search incident to those arrests, searching the truck and the individuals. Among other things, they found two loaded prohibited handguns, a firearm suppressor, illegal drugs including methamphetamine and fentanyl, and identity documents belonging to a third party.
[ 14 ] Mr. Wilson was subsequently charged with breaching a firearms prohibition (Criminal Code, R.S.C. 1985, c. C-46, s. 117.01(1)); possession of identity documents to be used to commit identity fraud (s. 402.2(1)); identity fraud (s. 403); and various other firearms offences (ss. 86(2), 88, 90, 91(1), 92(1), 94, 95(1), 99(3)). He was not charged with simple possession of a controlled substance.
[ 15 ] He applied for an order to exclude the evidence on the basis that his rights under ss. 8 and 9 of the Charter were breached, relying on s. 4.1(2) of the CDSA.
III. Judicial History
A. Provincial Court of Saskatchewan (Baniak Prov. Ct. J.)
[ 16 ] The trial judge rejected Mr. Wilson's arguments. He concluded that the police did not breach his s. 9 right, but he did not directly address the impact of s. 4.1(2) of the CDSA on the lawfulness of Mr. Wilson's arrest in his brief reasons concerning the alleged s. 9 breach.
[ 17 ] The trial judge also concluded that the search of the truck did not breach s. 8 of the Charter, finding that the search was routine and related primarily to officer safety. He concluded that the way the search was carried out was reasonable and that it was related to the reasons for the arrest.
[ 18 ] The trial judge admitted the evidence and convicted Mr. Wilson of all but one of the firearms offences and of possession of identity documents intended to be used for identity fraud. He sentenced Mr. Wilson to eight years' incarceration, less two and a half years' credit for time served.
B. Court of Appeal for Saskatchewan, 2023 SKCA 106, 429 C.C.C. (3d) 454 (Schwann, Leurer and Drennan JJ.A.)
[ 19 ] The Court of Appeal unanimously allowed the appeal, quashed Mr. Wilson's convictions, and directed verdicts of acquittal on all counts. The court defined the central issue as whether the police can arrest someone found committing an offence when that person cannot be lawfully charged with it.
[ 20 ] Because there were no explicit findings of fact in the reasons of the trial judge with respect to Mr. Wilson's first arrest, the Court of Appeal first examined the record to determine the reason for this arrest. It found that Mr. Wilson and his companions were first detained for the purposes of investigating simple possession and that the reason for Mr. Wilson's first arrest was to charge him under s. 4(1) of the CDSA.
[ 21 ] The Court of Appeal concluded that s. 4.1(2) of the CDSA, read in its grammatical and ordinary sense, means that simple possession remains an offence but that Parliament exempts a person from being charged with or convicted of that offence. Thus, while Mr. Wilson may have been found committing an offence, he could not be charged and therefore could not be lawfully arrested.
[ 22 ] The Court of Appeal excluded the evidence under s. 24(2) of the Charter, finding that its admission would bring the administration of justice into disrepute. It entered acquittals on all charges.
IV. Issues
[ 23 ] The Crown appeals, seeking to restore Mr. Wilson's convictions. It submits that Mr. Wilson's arrest for possession was lawful despite s. 4.1(2) of the CDSA. According to the Crown, the scope of the provision is plain and unambiguous — it provides immunity from charge and conviction, but not from arrest.
[ 24 ] Mr. Wilson maintains that his arrest was unlawful and that his acquittals should be affirmed. He submits that although the text of s. 4.1(2) does not explicitly reference immunity from arrest, it is necessarily implied. The legislative scheme and object of the GSDOA have a clear goal — "to save lives" — and an interpretation which provides immunity from charge and conviction, but allows for arrest, does not adequately promote Parliament's life-saving purpose.
[ 25 ] This appeal thus requires us to answer these questions:
Does the immunity from being "charged or convicted" of the offence of possession of a controlled substance in s. 4.1(2) of the CDSA include an immunity from arrest for that charge?
Were Mr. Wilson's ss. 8 and 9 Charter rights violated by his arrest and the search incident to that arrest?
If Mr. Wilson's Charter rights were violated, should the evidence obtained thereby be excluded under s. 24(2) of the Charter?
V. Analysis
A. The Good Samaritan Drug Overdose Act Amendments
[ 26 ] The CDSA is "the federal government's response to the problem of illegal drug use across Canada" (Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, at para. 20). At its heart are the dual purposes of protecting public safety and protecting public health. These dual purposes are sometimes in tension.
[ 27 ] In 2017, Parliament amended the CDSA through the GSDOA. That Act added s. 4.1 to the CDSA. Sections 4.1(2) and 4.1(3) as amended state:
(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.
(3) The exemption under subsection (2) also applies to any person, including the person suffering from the medical emergency, who is at the scene on the arrival of the emergency medical or law enforcement assistance.
[ 28 ] Section 4.1 creates circumscribed immunities for people who seek emergency assistance or remain at the scene of a medical emergency. A "medical emergency" is defined as "a physiological event induced by the introduction of a psychoactive substance into the body of a person that results in a life-threatening situation and in respect of which there are reasonable grounds to believe that the person requires emergency medical or law enforcement assistance" (s. 4.1(1)). Evidence gathered as a result of having sought assistance or remained at the scene of this kind of emergency cannot be used to support a simple possession charge (s. 4.1(2) and (3)) or to support a charge of violating a condition in a pre-trial release or probation order relating to simple possession (s. 4.1(4)). Moreover, conditions of pre-trial release, probation orders, conditional sentences, or parole which relate to simple possession are deemed not to have been violated at all (s. 4.1(5)), removing the possibility of other legal consequences that may be imposed without charge.
[ 29 ] The GSDOA began as a private member's bill, introduced by Ron McKinnon. Speaking in the House of Commons, Mr. McKinnon explained the statute's goals, stating: "Unfortunately, with drug overdoses, many people are afraid to call 911 for fear of getting charged. People die. Saving lives needs to be the priority" (House of Commons Debates, May 4, 2016, at p. 2893).
[ 30 ] Section 4.1(2) was enacted in the context of the federal government's overarching Canadian Drugs and Substances Strategy, which adopted a public health approach to substance use with an increased focus on harm reduction (see Health Canada, About the Good Samaritan Drug Overdose Act, last updated August 6, 2024; Canada. Health Canada. Controlled Substances and Cannabis Branch, The Canadian Drugs + Substances Strategy: The Government of Canada's approach to substance use related harms and the overdose crisis (2023)).
[ 31 ] Neither party to this appeal disputes that the GSDOA was enacted for this public health purpose: to reduce the harms associated with overdoses by removing disincentives to calling emergency services when one occurs (see A.F., at para. 28; R.F., at para. 28). Nor does anyone dispute that the immunity provided by s. 4.1(2) currently applies to Mr. Wilson in this case.
B. Immunity From Arrest Under Section 4.1(2) of the CDSA
[ 32 ] The proper interpretation of s. 4.1(2) of the CDSA is central to the disposition of this appeal. Like all statutory provisions, s. 4.1(2) must be interpreted according to the modern approach to statutory interpretation, which requires that the words of the subsection be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87).
[ 33 ] The Crown argues that notwithstanding the public health purpose of the provision, the scope of the immunity does not include arrest. According to the Crown, the immunity is "plainly and unambiguously defined" because the text of the provision does not specifically reference arrest (A.F., headnote). The Crown asks this Court to give the words "charged" and "convicted" their narrow technical and plain meanings (A.F., at paras. 36-37). In the Crown's view, "charged" and "convicted" both have settled meanings in the criminal law. They are terms of art that do not encompass arrest.
[ 34 ] It is true that s. 4.1(2) of the CDSA does not explicitly include the word "arrest" and only references immunity from being "charged" and "convicted". However, the words of a statutory provision can never be interpreted in isolation (see La Presse inc. v. Quebec, 2023 SCC 22, at para. 23). Courts must have regard to the context and the legislative purpose of a provision (para. 23). Courts cannot simply seize on language that, on its face, seems clear or unambiguous, without reading it in its entire context.
[ 35 ] More specifically, legal change, such as a change in the availability of arrest powers, is not always effected through express statutory language. The Crown is wrong to suggest that "[i]n the absence of clear statutory language to the contrary" the power to arrest must necessarily be unaffected by s. 4.1(2) (A.F., at para. 35). As this Court has held, "the mere absence of express language in the text of a provision does not necessarily preclude the extension of the provision to cover matters not explicitly set out in that text" (ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 51). Parliament "need not say everything explicitly" (R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967, at para. 43).
[ 36 ] A reading of the provision in its entire context, which reflects Parliament's purpose to save lives along with Parliament's understanding of the relationship between charge, conviction, and arrest, demonstrates that the words "charged or convicted" were not used in the narrow sense urged by the Crown.
(1) Immunity From Arrest Is Necessary To Achieve Parliament's Life-Saving Purpose
[ 37 ] It is accepted by both parties that Parliament's goal in enacting s. 4.1(2) of the CDSA was to save lives by encouraging individuals at the scene of an overdose to call 9-1-1. But the strong disincentive created by the threat of arrest and the consequences that may flow from such an arrest would greatly undermine Parliament's goal.
[ 38 ] It has been repeatedly recognized by this Court that arrests and searches incident to arrest are an inherently significant infringement of an individual's personal liberty and autonomy. As this Court held in Fleming v. Ontario, 2019 SCC 45, [2019] 3 S.C.R. 519, "few police actions interfere with the privacy, liberty, and dignity of an individual more than an arrest" (para. 55). An arrest removes a person from their current activities, requires their physical presence at a police station or in a police vehicle, and can have significant consequences even where charges are not ultimately laid.
[ 39 ] Searches incident to arrest are also intrinsically intrusive and can proceed in highly invasive fashions, such as strip searches (R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679), searches of cell phones (R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621), or searches of individuals' homes, including those areas outside the arrested person's physical control (R. v. Stairs, 2022 SCC 11, [2022] 1 S.C.R. 169). As seen in this case, those searches can provide the foundation for charges for offences other than simple possession.
[ 40 ] These consequences can strongly dissuade people from seeking help from emergency services in the case of a drug overdose. The medical emergencies intended to be captured by s. 4.1(2) will often involve vulnerable people and occur within people's homes. For individuals addicted to drugs, the risk that a police search can result in the discovery and seizure of illegal drugs, either from their person or from inside their home, can be a powerful disincentive to calling 9-1-1 in the case of an overdose. As this Court stated in PHS, "the need for an immediate fix or the fear of police discovering and confiscating drugs can override even ingrained safety habits" (para. 10). The interveners the Pivot Legal Society and the Canadian Civil Liberties Association point out the fear of potential arrests and searches may be acute for vulnerable and marginalized individuals, like those struggling with drug addiction, who often have a history of negative interactions with law enforcement and are disproportionately affected by police practices and criminalization (I.F., Pivot Legal Society, at paras. 30-32; I.F., Canadian Civil Liberties Association, at paras. 15-23; see also R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 90). For such individuals, courts must appreciate how previous experiences and marginalization colour their perception and responses to interactions with the police (see generally Le, at para. 90).
[ 41 ] Given the well-understood consequences of an arrest, an interpretation of s. 4.1(2) of the CDSA which allows for arrest would greatly undermine Parliament's intent to save lives by promoting resort to emergency services following a drug overdose. It intended to do so by reducing individuals' fear of legal consequences should they call 9-1-1. As Mr. McKinnon stated when introducing the bill in the House of Commons:
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.
(House of Commons Debates, February 22, 2016, at p. 1196)
[ 42 ] This intent is reflected in the statements by legislators discussing the proposed GSDOA. They illustrate that legislators intended and understood that immunity from charge and conviction would encompass immunity from arrest. Many of these statements were made on the floor of the House of Commons by proponents and opponents alike. Where members of Parliament intended the bill's protection to extend no further than immunity from charge and conviction, they could have said so. Instead, they spoke of it as protecting individuals from arrest.
[ 43 ] In endorsing the GSDOA, the Parliamentary Secretary to the Minister of Health made several statements which reflect an intention to immunize from arrest. For example, she stated:
I recognize that problematic drug use is a complex issue for which there are no easy answers, but we cannot arrest our way out of this problem . . . .
. . . rather than arresting those who are suffering from a disease of addiction, an overdose is an important opportunity for first responders to intervene and help direct individuals toward community health and social supports . . . .
(House of Commons Debates, May 4, 2016, at pp. 2898-99; see also House of Commons Debates, October 28, 2016, at p. 6301.)
[ 44 ] Together, these statements reflect a clear understanding that the s. 4.1(2) immunity includes immunity from arrest for the charge of simple possession. It is trite law that courts must not place undue reliance on what individual members of Parliament said when debating a bill. That said, these statements indicate that the purpose of the provision, as understood by legislators, goes beyond the mere technical immunity from charge and conviction claimed by the Crown.
[ 45 ] Importantly, achieving Parliament's goal in this case requires a clear rule that can be broadly communicated to and understood by those affected by drug overdoses. As one member said during debate: "People have to know what the law says, and they have to trust that the law will protect them" (House of Commons Debates, May 4, 2016, at p. 2895 (Mr. Todd Doherty)). An interpretation of s. 4.1(2) which, while providing immunity from charge and conviction, allows arrests to occur and searches to be conducted incident to them, would make the provision difficult to communicate to the public. Such an interpretation may not be readily apparent to the public, and would undermine Parliament's intent that the provision be understood.
[ 46 ] Immunizing eligible individuals from arrest does not ignore the importance of the public safety goal of the broader CDSA. Section 4.1(2) includes several robust, specific conditions and only immunizes limited categories of people from liability for simple possession: those who seek assistance or remain at the scene and whose evidence of possession was obtained or discovered as a result of that seeking of assistance or remaining. This limiting framework underscores Parliament's careful balancing of the public health and public safety aspects of the CDSA.
[ 47 ] By contrast, other than the absence of an explicit reference to the word "arrest", there is nothing to support the Crown's contention that Parliament chose to allow the police to arrest the good Samaritans whose lives it was seeking to protect under s. 4.1(2) of the CDSA.
[ 48 ] Rather, the Crown's interpretation runs counter to the many statements of legislators indicating an intention and understanding that immunity from arrest would follow immunity from charge and conviction, for the specific offence addressed by s. 4.1(2).
(2) The Broader Context of Section 4.1 Is Consistent With Immunity From Arrest
[ 49 ] An interpretation conferring immunity from arrest is consistent with the statutory scheme in which s. 4.1(2) is found. When the text of the provision is read in the context of the entire section, it is clear that Parliament sought to ensure that people at the scene of a drug overdose could call for help without fear of legal consequences. The provision should be read so as to advance that purpose.
[ 50 ] In addition to conferring immunity from charge and conviction for the offence of simple possession, s. 4.1 of the CDSA provides additional immunities regarding the breach of conditions that relate to the offence of simple possession. Sections 4.1(4) and (5) state:
(4) No person who seeks emergency medical or law enforcement assistance because that person, or another person, is suffering from a medical emergency, or who is at the scene on the arrival of the emergency medical or law enforcement assistance, is to be charged or convicted of an offence for violating a condition of their pre-trial release, probation order, conditional sentence or parole if the offence being alleged is a contravention of a condition relating to an offence under subsection 4(1), provided that the evidence in support of that contravention was obtained or discovered as a result of that person having sought assistance or having remained at the scene.
(5) Any condition of a person's pre-trial release, probation order, conditional sentence or parole relating to an offence under subsection 4(1) that may be violated as a result of the person seeking emergency medical or law enforcement assistance because that person or another person is suffering from a medical emergency, or that may be violated as a result of the person being at the scene on the arrival of the emergency medical or law enforcement assistance, is deemed not to have been violated.
[ 51 ] The Crown submits that the existence of s. 4.1(5) supports its narrow reading of s. 4.1(2) (A.F., at para. 41). It recognizes that violating the conditions covered by s. 4.1(5) provides no grounds for additional charges or prosecution. The Crown submits that s. 4.1(5) demonstrates that when Parliament wanted to create a protection stronger than immunity from charge and conviction, it did so explicitly.
[ 52 ] These additional protections reflect Parliament's clear goal to remove disincentives to seek emergency assistance that could save lives. Section 4.1(5) goes beyond providing immunity for conditions because, in the absence of such a provision, the fact that any conditions had been violated could be used as the basis for revocation of bail or other non-criminal legal consequences, even in the absence of new charges.
[ 53 ] That Parliament sought to address unique consequences of condition violations in s. 4.1(5) says nothing about whether the s. 4.1(2) immunity extends to arrest. The s. 4.1(2) immunity makes clear what follows from it — no charge, no conviction. These words encompass arrest.
[ 54 ] The Crown also argues that the words "charged or convicted" in s. 4.1(2) are terms of art that ought to be given narrow, technical meanings (A.F., at paras. 36 and 40). But the drafting of s. 4.1 suggests that Parliament did not use these terms as if they were precise technical terms.
[ 55 ] Thus, an examination of the language of s. 4.1 contradicts the idea that the terms "charged or convicted" in s. 4.1(2) were used as precise terms of art specifically chosen by Parliament. The broader statutory context therefore supports a reading of the immunity from charge and conviction as encompassing immunity from arrest.
(3) Parliament Would Not Have Preserved Arrests for Offences Immune From Charge and Conviction as a Pretext for Investigating Other Offences
[ 56 ] The Crown argues that the arrest power under s. 495 of the Criminal Code permits arrests based on the commission of an offence even where immunity from charge and conviction is available (A.F., at paras. 43-50). It submits that arrest powers are not connected to the availability of a charge.
[ 57 ] I cannot agree. In enacting s. 4.1(2), Parliament did not intend to allow the police to arrest individuals for the offence of simple possession, despite those individuals being immune from charge and conviction, to further other law enforcement goals.
[ 58 ] Arrest is not a power to be exercised lightly. It is a significant deprivation of personal liberty. As this Court stated in Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335, arrest constitutes an "extremely serious interference with freedom of movement" (para. 43). It is specifically listed in s. 7 of the Charter as one of the deprivations of liberty that cannot be imposed except in accordance with the principles of fundamental justice. This is why arrest powers must always be authorized by law.
[ 59 ] An arrest is also a very specific exercise of police powers, which in turn gives rise to other police powers, most notably search incident to arrest. In this sense, arrest is distinct from other police actions such as asking questions, issuing warnings, or taking other less intrusive measures that are more often exercised in the course of day-to-day interactions between police and members of the public.
[ 60 ] In recognition of their significance, this Court has hesitated to expand the scope of police arrest powers. For example, in Fleming this Court declined to recognize a common law power for the police to arrest and detain persons for "preventive" purposes at major public events where there is no basis to arrest for a specific offence (paras. 82-86).
[ 61 ] The power to arrest under s. 495 of the Criminal Code is not merely another tool to be used by the police in furthering their general mandate to protect life and safety (see R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 35). Although the police have a broad mandate to protect life and prevent crime, specific police powers must be authorized by statute or the common law.
[ 62 ] In addition, the s. 495 arrest power appears in Part XVI of the Criminal Code, titled "Compelling Appearance of Accused Before a Justice and Interim Release", as "part of a larger scheme for compelling the accused to appear before a court to face legal process" (R. v. I.M., 2025 SCC 23, at para. 37). The purpose of an arrest is thus naturally connected to the prospect of charge and prosecution (see also Wiretap Reference, [1984] 2 S.C.R. 697, at p. 735; R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at para. 75).
[ 63 ] Further, as noted by Glanville L. Williams, "[t]o be an arrest, there must be an intention to subject the person arrested to the criminal process . . . . If one thinks about the matter there can be no arrest unless there is an intention to charge" ("Requisites of a Valid Arrest", [1954] Crim. L.R. 6, at p. 7). An arrest is therefore, by its nature, connected to charging and prosecution, and no one is suggesting that the police have unlimited authority to arrest any person in the hope that they may eventually find grounds to charge them.
[ 64 ] While it is true, as the Crown points out, that in some circumstances the exercise of the preventative arrest power under s. 495(1)(a), where an individual is about to commit a crime, will not result in charges being laid, it does not follow that immunity from charge and conviction does not carry with it an immunity from arrest. The reason such an arrest may not result in charges being laid is that the preventative purpose of the arrest was to stop an imminent crime, not to avoid laying a charge that could be laid. Preserving arrest powers in a context where an individual is specifically exempted from charge and conviction would be a wholly different matter.
[ 65 ] This Court has also made clear that "[a]n arrest cannot be made solely for the purpose of investigation" (Feeney, at para. 35). Considerations such as the need to find and preserve evidence have consistently been held to be insufficient, standing alone, to justify an arrest. Purely investigative arrests would be a novel expansion of police powers.
[ 66 ] The law of warrantless searches incident to arrest is also tightly circumscribed and ensures that the power is exercised for specific purposes. While searches incident to arrest can be conducted for a number of law enforcement objectives (see R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234), they cannot be conducted for a collateral investigative purpose (Caslake, at para. 25; see also R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 12 and 96; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 30). An arrest solely for the purpose of investigating other offences would allow the police to use a "pretext arrest" to conduct a search of the good Samaritans captured by s. 4.1(2) of the CDSA.
[ 67 ] The public always has an interest in removing drugs and firearms from the street, especially near a school. But our criminal law has been careful to circumscribe the scope and conditions of the exercise of police powers such as arrest and search in order to protect against arbitrary intrusions of individual liberty (see, e.g., R. v. Campbell, 2024 SCC 42, at para. 40).
[ 68 ] The powers to arrest and search involve the important individual human rights of privacy and freedom from arbitrary detention protected under ss. 8 and 9 of the Charter. Police powers must be exercised in accordance with the Charter and with the law that governs them. I therefore see no basis to conclude that Parliament intended, without express language, to authorize arrests for the purpose of investigating an individual who is immune from charge for the offence for which they are arrested.
[ 69 ] Therefore, I do not accept, as the Crown argues, that Parliament intended to allow the police to arrest and search good Samaritans on the grounds that an offence of simple possession was committed, in pursuit of a general law enforcement goal: to remove drugs and weapons from the streets. To the extent that the police could only ground an arrest in the commission of a simple possession offence for which the individual is immune, Parliament did not intend to create a pretext for arrest that would undermine the stated purposes of s. 4.1(2).
[ 70 ] Parliament is presumed to have known the existing law when it enacted s. 4.1(2) (see D.L.W., at para. 21). A reading of s. 4.1(2) that would allow for arrest for possession when an individual is specifically immune from charge and conviction for that offence, and could only lawfully be arrested for that offence, would mean that Parliament created a legal fiction: an offence for which someone could be arrested and searched, but not charged, and for which the police could then potentially discover evidence of other offences. I cannot see that Parliament intended to create such a fiction.
(4) Conclusion on the Statutory Interpretation of Section 4.1(2)
[ 71 ] For these reasons, I conclude that, by necessary implication, s. 4.1(2) of the CDSA provides immunity not just from charge and conviction for simple possession, but also from arrest for such an offence. Parliament intended to create an exception to the use of the police power of arrest for that offence. An arrest for the offence of possession of a controlled substance in the circumstances contemplated by s. 4.1(2) would be a violation of s. 9 of the Charter.
C. Lawful Powers of the Police at the Scene of a Drug Overdose
[ 72 ] The s. 4.1(2) immunity from arrest for possession of a controlled substance does not affect other existing police powers and does not leave the police powerless to protect public safety at the scene of a drug overdose.
[ 73 ] First, the police can secure the scene and ask 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 the drugs (s. 4.1 does not prevent the police from gathering evidence of offences other than simple possession).
[ 74 ] Second, this Court has established that the police have the power to detain individuals "where it is reasonably necessary in the totality of the circumstances", weighing the seriousness of the situation and the need to detain against the liberty of the person detained (R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45). The s. 4.1(2) immunity from arrest for simple possession does not prevent the police from detaining an individual on the basis of a reasonable suspicion of offences other than simple possession (see R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at paras. 27-32 and 45). When responding to an overdose, the police may be confronted with evidence of other criminal activity — such as trafficking in drugs or the presence of weapons — that justify a detention on the basis of a reasonable suspicion of an offence other than simple possession.
[ 75 ] Third, the police can still exercise a substantial number of search and seizure powers when responding to an overdose. For example, under the plain view seizure power, the police can seize drugs or other evidence of crime that they discover in plain view, even though the individual is immune from arrest for simple possession (see R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at para. 25). They can also use the powers under s. 489(2) of the Criminal Code to seize items in plain view if they have reasonable grounds to believe that the item was obtained by or used in the commission of an offence.
[ 76 ] Finally, all arrest and detention powers outside the scope of the s. 4.1(2) immunity remain available to the police. These include the power of investigative detention where they reasonably suspect an offence other than simple possession has been committed, or the power to arrest if there are reasonable grounds to believe that an offence other than simple possession has been committed.
[ 77 ] Significantly, all of these other powers have their own thresholds and preconditions for use and, as has been recognized by this Court, the police must often quickly assess whether those conditions are met. While this assessment may be challenging in some circumstances, it is one that the police regularly undertake. And there is good reason to think that, in the context of overdoses, that assessment will often be straightforward.
[ 78 ] The Director of Public Prosecutions, as an intervener, asks this Court to recognize a freestanding power to search for controlled substances at the scene of an overdose (I.F., at paras. 3-5). This is not a relief that was sought before this Court and is inconsistent with the general framework for search and seizure powers. I would not recognize such a power.
[ 79 ] It is similarly unnecessary to address the power of investigative detention on reasonable suspicion that an immune possession offence has been committed or powers to conduct warrantless searches under s. 487.11 of the Criminal Code or other provisions of the CDSA, in the case where the only offence at issue is one of simple possession.
[ 80 ] The immunity provided by s. 4.1(2) is aimed at saving lives. Apart from this limited immunity for simple possession, it removes none of the other existing police powers allowed in criminal law. Police powers are not substantially reduced by a reading of s. 4.1(2) as conferring immunity from arrest for the offence of simple possession.
D. Application
(1) Sections 8 and 9 of the Charter
[ 81 ] I have concluded that s. 4.1(2) of the CDSA includes immunity from arrest for possession of a controlled substance. There is no dispute that Mr. Wilson remained at the scene of a medical emergency after 9-1-1 was called. Because I am satisfied that Constable Marshall arrested Mr. Wilson for the offence of simple possession and that the evidence grounding an arrest for that offence was discovered as a result of him having remained at the scene, his arrest and consequent search were unlawful.
[ 82 ] The Crown argues that the Court of Appeal erred "by substituting its own view of the facts for the trial judge" (A.F., at para. 63). According to the Crown, it was not open to the Court of Appeal to find, contrary to the trial judge's findings, that the first arrest was for the purpose of charging Mr. Wilson under s. 4(1) of the CDSA.
[ 83 ] Although the trial judge's reasons did not contain explicit findings of all the relevant facts, he stated that he "found the testimony of the police officers to be both credible and reliable" (voir dire reasons, at p. 17). The Court of Appeal was therefore entitled to rely on that evidence to make the necessary factual findings.
[ 84 ] The only interpretation available on the evidence is that Mr. Wilson was arrested for possession of a controlled substance and that the subsequent search which discovered the evidence of other offences was conducted incident to that arrest. None of the evidence supports an interpretation of the events in which Constable Marshall arrested Mr. Wilson for an offence other than possession of a controlled substance.
[ 85 ] Constable Marshall, the first officer at the scene and the one who conducted the investigative detention of Mr. Wilson and the others, repeatedly stated in her testimony that both the initial detention and first arrest of Mr. Wilson and his companions were for the purpose of investigating simple possession of controlled substances (voir dire reasons, at p. 7; A.R., at pp. 90, 93, 95, 96, 97, 98).
[ 86 ] Constable Marshall was clear in describing the observations she made at the scene which formed the basis for the initial detention and arrest. These observations included the information from the 9-1-1 call that there may have been a drug overdose, and what she personally observed — the strong odour of marijuana, the baggie of what appeared to be crystal methamphetamine in plain view in the grass near the truck, and the streak of white powder that appeared on the ground near Mr. Wilson's feet as a result of him fidgeting with his pocket. Arrest under s. 495(1) of the Criminal Code for the offence of simple possession was both the purpose and the basis of Mr. Wilson's arrest.
[ 87 ] Therefore, because s. 4.1(2) immunizes eligible individuals from arrest for simple possession, based on the record here, the arrest of Mr. Wilson was unlawful and breached his s. 9 right. The resultant search breached his s. 8 right.
(2) Section 24(2) of the Charter
[ 88 ] Under s. 24(2) of the Charter, evidence obtained through a Charter breach shall be excluded if its admission would bring the administration of justice into disrepute. This engages three avenues of inquiry, as set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353: the seriousness of the Charter-infringing conduct, the impact of the breach on the Charter-protected interests of the accused, and society's interest in adjudication on the merits (para. 71).
[ 89 ] The Court of Appeal considered the relevant factors and concluded that the evidence obtained in breach of Mr. Wilson's Charter rights must be excluded. Before this Court, the Crown argues to the contrary, raising as relevant considerations that the police were acting in good faith and that there is a strong societal interest in the evidence being admitted (A.F., at paras. 68-70).
[ 90 ] But as noted above, a purposive reading of s. 4.1(2) and the clear jurisprudence on the scope of the power of arrest both indicate that arrest for possession of a controlled substance was precluded where the individual had an immunity from charge and conviction. A police officer acting in accordance with the law should have known that this arrest was not permitted by s. 4.1(2). The gravity of the breach is therefore not diminished by the police acting in good faith.
[ 91 ] I agree with the conclusions of the Court of Appeal. Given the seriousness of the breach of the Charter rights and the impact of that violation on Mr. Wilson's Charter-protected interests, the evidence should be excluded, as its admission would bring the administration of justice into disrepute (Grant, at para. 71).
VI. Conclusion
[ 92 ] The police retain many powers when they respond to the scene of an overdose. That said, s. 4.1(2) makes arrest for possession of a controlled substance unlawful when the evidence justifying that arrest was discovered because a person sought emergency assistance for, or remained at the scene of, a drug overdose. Immunity from arrest is a necessary implication of the immunity from charge and conviction conferred by s. 4.1(2).
[ 93 ] Mr. Wilson had immunity under s. 4.1(2) when he was arrested for possession. Arresting him despite his immunity was a serious breach of his Charter rights that warrants the exclusion of evidence. The appeal should be dismissed.
[ 94 ] I would dismiss the appeal.
The reasons of Côté, Rowe and Jamal JJ. were delivered by
Jamal J. —
I. Introduction
[ 95 ] In criminalizing the simple possession of drugs, the Parliament of Canada has always tried to balance the objectives of public health and public safety. Both objectives are engaged at the scene of a drug overdose.
[ 96 ] In 2007, several U.S. states began enacting "Good Samaritan" drug overdose laws to encourage individuals at the scene of an overdose to call 9-1-1 for help. Although the state laws differ widely in their scope, the majority provide an exemption from criminal liability for simple possession and many also expressly extend the exemption to arrest.
[ 97 ] In 2017, Parliament followed suit and enacted the Good Samaritan Drug Overdose Act, S.C. 2017, c. 4, after it was introduced as a private member's bill. The new legislation amended the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA), by adding s. 4.1. The medical emergency exemption in s. 4.1(2) of the CDSA exempts individuals who call 9-1-1 or remain at the scene of a drug overdose from being "charged or convicted" of the offence of simple possession (s. 4(1) of the CDSA). Unlike many of the analogous U.S. laws, however, s. 4.1(2) of the CDSA does not expressly extend the exemption to arrest.
[ 98 ] At issue on this appeal is whether the police violated the rights of the respondent, Paul Eric Wilson, under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms at the scene of an overdose by arresting him for the offence of simple possession and conducting a search incident to arrest.
[ 99 ] Mr. Wilson was detained for the purpose of investigation at the scene of a drug overdose in a schoolyard of an elementary-middle school in session in rural Saskatchewan. When the police officer arrived at the scene alone, she observed signs of drug possession. She could smell a strong odour of marijuana, saw a baggie of what looked like crystal methamphetamine on the ground near the truck, and saw a streak of white powder appear near Mr. Wilson's feet while he was fiddling with something in his pocket. She and two other officers subsequently arrested and searched Mr. Wilson and the other individuals at the scene. The search of the truck incident to the arrests revealed two loaded prohibited handguns, ammunition, a suppressor, and illegal drugs.
[ 100 ] The trial judge rejected Mr. Wilson's argument that the police had infringed his rights under ss. 8 and 9 of the Charter by arresting him and conducting a search incident to arrest. He found that the police had acted lawfully and admitted the evidence. He convicted Mr. Wilson of various firearms offences and possession of identity documents.
[ 101 ] The Court of Appeal for Saskatchewan allowed the appeal from conviction. The court held that the police infringed ss. 8 and 9 of the Charter by arresting Mr. Wilson for simple possession and conducting a search incident to the arrest, finding that s. 4.1(2) of the CDSA prohibited the police from arresting Mr. Wilson for the offence of simple possession. The court excluded the evidence and directed acquittals.
[ 102 ] I would allow the appeal. The police did not infringe ss. 8 or 9 of the Charter. There is no evidence in the record to justify the Court of Appeal's factual finding that the police arrested Mr. Wilson solely for the purpose of charging him with simple possession under s. 4(1) of the CDSA. In any event, s. 4.1(2) of the CDSA does not prohibit the police from arresting Mr. Wilson for the offence of simple possession.
[ 103 ] In my view, the text, context, and purpose of s. 4.1(2) of the CDSA confirm that the provision provides only a limited exemption from being "charged or convicted" of simple possession but does not prohibit the power to arrest for that offence.
[ 104 ] The text of s. 4.1(2) exempts an individual from being "charged" or "convicted", both of which are legal terms whose legal meaning is different from that of the legal term "arrest". Parliament is presumed to have selected these specific terms deliberately and with knowledge of their distinct legal meanings.
[ 105 ] The context of s. 4.1(2) confirms that simple possession remains an offence. Nothing in the CDSA or under the criminal law suggests that s. 4.1(2) prohibits the power to arrest under s. 495(1) of the Criminal Code, which authorizes the arrest of any person whom a police officer has reasonable grounds to believe has committed or is about to commit an indictable offence.
[ 106 ] The purpose of s. 4.1(2) also strongly suggests that this provision cannot be interpreted to prohibit the power to arrest. Like the CDSA as a whole, s. 4.1(2) seeks to balance public health, by preventing overdose deaths, and public safety, by preventing harm to society from dangerous drugs, including by suppressing their availability. Because simple possession remains an offence, the police have a duty and power to investigate that offence to protect the public. A court must read the clear words in s. 4.1(2) based on the two policy objectives that Parliament balanced under this provision. A court cannot consider the public health objective alone and pursue it at all costs, while ignoring the public safety objective. This is especially so when such an approach entails absurd consequences. Here, interpreting s. 4.1(2) to prohibit the police power to arrest for the offence of simple possession means that the police cannot detain to investigate that offence either. This will place the public and the police at great risk.
[ 107 ] The Member of Parliament who sponsored the private member's bill, Mr. Ron McKinnon, expressly assured the Standing Senate Committee on Legal and Constitutional Affairs that the proposed measures would "not limit police powers". Parliament cannot be presumed to have intended to eliminate an existing police power — the power to arrest for simple possession under s. 495(1) of the Criminal Code — when the bill's own sponsor expressly assured Parliament to the contrary.
[ 108 ] It necessarily follows from my colleague's reading that s. 4.1(2) of the CDSA eliminates not only the power to arrest for simple possession at the scene of an overdose, but also the power to detain for the purpose of investigation of simple possession. This is an unacceptable interpretation as it would leave the police unable to protect the public when attending at the scene of an overdose and would place both the public and the police in harm's way.
[ 109 ] I conclude that s. 4.1(2) of the CDSA does not prohibit the police from exercising the power to arrest without warrant under s. 495(1) of the Criminal Code. Nor do I see any basis to find an infringement of ss. 8 or 9 of the Charter. I would allow the appeal, set aside the acquittals, and restore the convictions.
II. Facts
[ 110 ] At about 8:25 a.m. on a school morning in September 2020, Constable Heidi Jo Marshall, a 20-year veteran of the RCMP, was dispatched to respond to a drug-related incident in the schoolyard of an elementary-middle school with approximately 200 students in Vanscoy, Saskatchewan. Cst. Marshall was the first officer to arrive and was alone at the scene until backup arrived.
[ 111 ] On the way to the scene, Cst. Marshall learned that the school principal had also just called 9-1-1. Construction workers nearby had warned the principal that four individuals had parked a truck in the schoolyard after driving erratically. The individuals, who were not connected to the school, appeared to be impaired.
[ 112 ] When Cst. Marshall arrived, many young children were in the area. An ambulance was already there. The ambulance supervisor immediately approached Cst. Marshall and said that a woman, later identified as Cheryl Delorme, had overdosed on fentanyl, and that she was in critical condition, being attended to by paramedics. The supervisor told Cst. Marshall that three other individuals were nearby.
[ 113 ] Cst. Marshall approached the truck and saw signs of drug possession and drug use. She smelled a strong odour of marijuana coming from the area of the truck and a baggie of what looked like crystal methamphetamine on the ground near the truck. She saw Paul Eric Wilson, who would have been visible to the schoolchildren, and two other individuals.
[ 114 ] Cst. Marshall asked Mr. Wilson, Mr. Mann, and the third individual, Natasha Kerfoot, to come over to her police vehicle and asked them to stand about three feet apart. She was the only officer there at the time. She detained them for the purpose of investigating possession of a controlled substance contrary to s. 4(1) of the CDSA.
[ 115 ] After Cst. Marshall detained the three individuals, she noticed Mr. Wilson fiddling with something in his pocket and saw a streak of white powder appear near his feet. She believed the powder to be a controlled substance. Based on her observations, she arrested Mr. Wilson and the other individuals, including Ms. Delorme (who was being attended to by paramedics), for possession of a controlled substance.
[ 116 ] Two other RCMP officers, Constable Mavrick Hamon-Boulay and Constable Sean Nave, arrived as backup and placed Mr. Wilson and Mr. Mann in police vehicles. Cst. Marshall went to the ambulance and asked Ms. Delorme whether there were any drugs or weapons in the truck. Ms. Delorme said "yes" to drugs.
[ 117 ] The officers searched the truck incident to the arrests for possession of a controlled substance. They were looking for "any weapons or any other drugs" (voir dire reasons, at p. 8). The officers found two loaded prohibited handguns, a handgun suppressor, a large quantity of methamphetamine, other illegal drugs, and identity documents belonging to a third party.
[ 118 ] The officers arrested Mr. Wilson, Mr. Mann, and Ms. Kerfoot again, this time for firearms offences and possession of a controlled substance for the purpose of trafficking. By now, Ms. Delorme had been taken to the hospital.
[ 119 ] Mr. Wilson, Mr. Mann, and Ms. Kerfoot were transported to a nearby police station. In an interview conducted after he took drugs in his cell, Mr. Wilson confirmed that the backpack, firearms, drugs, and identity documents were his.
[ 120 ] Mr. Wilson was not charged with possession or possession for the purpose of trafficking under the CDSA. He was, however, charged with eight firearms-related offences, breaching a firearms prohibition, and two offences related to the possession of another person's identity information.
III. Judicial History
A. Provincial Court of Saskatchewan, Voir Dire Ruling (Baniak J.)
[ 121 ] At trial, Mr. Wilson admitted that he was subject to a firearms prohibition order under s. 109 of the Criminal Code at the time of the alleged offences. He also did not contest that the handguns were operating "firearms" under the Criminal Code and that he was not authorized to have the identity information found in his possession.
[ 122 ] Instead, Mr. Wilson challenged the legality of his initial arrest for simple possession of a controlled substance under s. 4(1) of the CDSA. He claimed that because s. 4.1(2) of the CDSA provides that he could not be "charged or convicted" for simple possession, the police could not lawfully arrest him for that offence either under s. 495(1) of the Criminal Code. He also argued that the arrest was unlawful because there was no intention to charge him with simple possession.
[ 123 ] The Crown responded that s. 4.1(2) of the CDSA did not prevent the police from conducting an investigative detention or arrest and noted that Mr. Wilson was not charged with simple possession. The Crown argued that Cst. Marshall "was fully justified in detaining the individuals she encountered on the scene", and was "similarly acting on a well-founded and reasonable suspicion that led to further grounds for arrest" (voir dire reasons, at p. 11).
[ 124 ] The trial judge rejected Mr. Wilson's Charter arguments. He stated that, at common law, the "[p]olice officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that an individual is connected to a particular crime and that such a detention is necessary" (p. 16, quoting R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45). He further concluded that the police had "reasonable grounds to suspect all three individuals were connected to the crime of unlawful possession of a controlled substance" (p. 16).
[ 125 ] The trial judge also found that Cst. Marshall had reasonable grounds to arrest Mr. Wilson for possession of a controlled substance under s. 495(1) of the Criminal Code. He further concluded that the search of the truck was "lawful as a search incident to arrest" (p. 18). The trial judge admitted the evidence and convicted Mr. Wilson.
[ 126 ] On sentence, the trial judge concluded that Mr. Wilson was not eligible for the exemption under s. 4.1(2) of the CDSA because he was in possession of a large quantity of drugs, and he was at the scene to sell drugs and not to seek or provide assistance (reasons for sentence, at p. 3).
B. Court of Appeal for Saskatchewan, 2023 SKCA 106 (Schwann, Leurer and Drennan JJ.A.)
[ 127 ] The Court of Appeal allowed the appeal, quashed the convictions, and directed verdicts of acquittal on all counts. It held that the police infringed Mr. Wilson's rights under ss. 8 and 9 of the Charter.
[ 128 ] The Court of Appeal found that the trial judge had not made explicit findings as to the purpose of the first arrest. It then reviewed the evidence and concluded that the police arrested Mr. Wilson for the purpose of charging him under s. 4(1) of the CDSA. Based on this finding, it concluded that the first arrest was for simple possession.
[ 129 ] The Court of Appeal then concluded that s. 4.1(2) of the CDSA was inconsistent with a power to arrest. It reasoned that an arrest for simple possession is inconsistent with the GSDOA's overarching goal "to save lives" and the provision's "grammatical and ordinary sense" (para. 36). On this basis, the court concluded that the police had infringed Mr. Wilson's s. 9 Charter right.
[ 130 ] As the arrest was unlawful, the Court of Appeal also held that the consequent search was unlawful and infringed Mr. Wilson's s. 8 Charter right. It excluded the evidence and directed acquittals on all counts.
IV. Issues
[ 131 ] This appeal raises the following issues:
Does s. 4.1(2) of the CDSA prohibit the police from arresting a person for the offence of simple possession under s. 495(1) of the Criminal Code?
Did the police infringe ss. 8 and 9 of the Charter?
If so, should the evidence be excluded under s. 24(2) of the Charter?
V. Analysis
A. Does Section 4.1(2) of the CDSA Prohibit an Arrest for Simple Possession?
(1) Framework for Statutory Interpretation
[ 132 ] It is a well-established principle of statutory interpretation that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, quoting Driedger, at p. 87; Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 118). Courts must consider the text, context, and purpose of a provision to find a meaning that is harmonious with the legislation as a whole (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras. 26-28; Piekut v. Canada (National Revenue), 2025 SCC 13, at para. 27).
[ 133 ] The object of a statute must be considered, but "close attention must always be paid to the text of the statute" (Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at para. 34). Courts must always seek to ascertain what Parliament has actually said, not just what it intended to say (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43 ("CISSS A"), at para. 24). A court may not use the purpose of a provision to justify a reading that is inconsistent with what Parliament has actually said (R. v. Breault, 2023 SCC 9, at para. 21; MediaQMI inc. v. Kamel, 2021 SCC 23, [2021] 1 S.C.R. 899, at para. 54).
[ 134 ] Furthermore, courts must give statutory language its settled legal meaning, particularly where the legislature has used settled legal terminology. Courts must not read legal terms in a purely lay sense when they have a precise legal meaning, since Parliament is presumed to know the law (see Sun Indalex Finance, LLC v. United Steelworkers, 2013 SCC 6, [2013] 1 S.C.R. 271, at para. 170; Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5, [2019] 1 S.C.R. 150, at para. 77; 9354-9186 Québec inc. v. Callidus Capital Corp., 2020 SCC 10, [2020] 1 S.C.R. 521, at para. 70; Canada v. Loblaw Financial Holdings Inc., 2021 SCC 51, [2021] 3 S.C.R. 687, at para. 38; Dow Chemical Canada ULC v. Canada, 2024 SCC 23, at para. 61; R. v. Wolfe, 2024 SCC 34, at para. 43).
(2) Section 4.1(2) of the CDSA Does Not Prohibit an Arrest for Simple Possession
(a) Text
[ 135 ] The text of s. 4.1(2) limits the medical emergency exemption to charge and conviction. Section 4.1(2) does not mention "arrest" at all. On its face, it provides an exemption from only two distinct and well-established steps in the criminal process: being "charged" or "convicted", each of which is a legal term of art whose legal meaning is different from that of "arrest".
[ 136 ] Although it is true that these three terms — arrest, charge, and conviction — are sometimes used loosely and interchangeably in everyday language, in law they refer to three distinct steps in the criminal process, each with its own legal requirements and consequences.
[ 137 ] An "arrest" is the act of detaining a person by legal authority. Under s. 495(1)(a) of the Criminal Code, a peace officer may arrest without warrant a person whom the officer believes, on reasonable grounds, to have committed or to be about to commit an indictable offence. An arrest initiates the criminal process by bringing the arrested person before a court. However, an arrest does not itself commence legal proceedings against the arrested person.
[ 138 ] A "charge" commences the legal proceedings against a person. It is a formal accusation of a specific criminal offence against a named person (see Black's Law Dictionary (12th ed. 2024), "charge"). After an arrest and before a charge, a person may be held pending the laying of an information or may be released on an undertaking or recognizance. A charge is "laid" by swearing an information and taking it before a justice (Criminal Code, s. 504). Only a prosecutor may "lay a charge" in the sense of deciding to initiate the prosecution of an accused (Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, at para. 46; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at paras. 48-51). The decision to "charge" is therefore the decision to commence the prosecution.
[ 139 ] A "conviction" is the decision of a court finding a person guilty, either after a trial or on a guilty plea (see Black's Law Dictionary, "convict"). A conviction brings the prosecution to an end.
[ 140 ] Parliament used these precise legal terms in s. 4.1(2) of the CDSA. The text of s. 4.1(2) unambiguously provides that a person shall not be "charged or convicted" of an offence. Parliament chose not to include the word "arrested", even though the statutory power to arrest without warrant is found in the Criminal Code (s. 495) and arrests are commonly made for the offence of simple possession. The absence of the word "arrest" in s. 4.1(2) is significant.
[ 141 ] In contrast, several U.S. states' Good Samaritan drug laws expressly extend the exemption to arrest (see, e.g., N.M. Stat. Ann. § 30-31-27.1 (2025); Colo. Rev. Stat. § 18-1-711(1) (2025); Del. Code Ann. tit. 16, § 4769(b) (2025); Haw. Rev. Stat. § 329-43.6(b) (2024); Tenn. Code Ann. § 63-1-156(b) (2025); Ga. Code Ann. § 16-13-5(b) (2025); Miss. Code Ann. § 41-29-149.1(3)(a), (b) (2024); Or. Rev. Stat. § 475.898(1), (2) (2024)). Parliament was aware of these U.S. laws (see Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 21, February 8 and 9, 2017, at p. 21:13), and Mr. McKinnon expressly assured Parliament that the proposed measures would not "limit police powers" (ibid.). This stands in stark contrast with many of the U.S. laws, which expressly limit police powers. The text of s. 4.1(2) of the CDSA, unlike its U.S. counterparts, does not extend to arrest.
[ 142 ] For the purposes of s. 4.1(2), the term "charged" must be understood in accordance with its settled legal meaning in Canadian criminal law. The term means the formal act of commencing legal proceedings against an accused by laying an information before a justice under s. 504 of the Criminal Code, not the act of arrest. An arrest may precede the laying of an information, but it is not itself a charge (R. v. Kalanj, [1989] 1 S.C.R. 1594, at p. 1600; Morris v. The Queen, [1979] 1 S.C.R. 405, at p. 414).
[ 143 ] The term "convicted" similarly must be understood in accordance with its settled legal meaning as a judicial finding of guilt. A conviction follows a determination of guilt after a trial or a guilty plea. The analysis under s. 4.1(2) does not change this settled meaning.
[ 144 ] Accordingly, s. 4.1(2) does not, on its face, affect the power to arrest. Parliament specifically chose to use "charged" and "convicted", which are terms of art with distinct legal meanings that do not encompass arrest. Even if the terms were read broadly, they would not encompass arrest. In my view, the text of s. 4.1(2) clearly and unambiguously limits the medical emergency exemption to charge and conviction.
(b) Context
[ 145 ] The statutory context of s. 4.1(2) confirms that the provision does not prohibit the police from arresting for simple possession. Several contextual considerations point to this conclusion.
[ 146 ] First, the context of s. 4.1(2) confirms that simple possession remains an offence. Section 4(1) of the CDSA provides that, except in specified circumstances, "no person shall possess a substance included in Schedule I, II, or III." The Good Samaritan Drug Overdose Act did not make simple possession lawful — it preserved the offence of simple possession (see R. v. Varennes, 2025 SCC 22, at para. 95) while enacting a limited exemption from the prosecution of that offence in specified circumstances. Therefore, unlike an act that does not exist in law or is not a criminal offence, simple possession continues to exist as a criminal offence under s. 4(1) of the CDSA that may be investigated by the police, who may also exercise their power to arrest under s. 495(1) of the Criminal Code.
[ 147 ] Second, the context of s. 4.1(2) shows that Parliament chose to limit the exemption to the prosecution stage of the criminal process. On the text of s. 4.1(2), a person cannot be "charged or convicted" for simple possession in defined circumstances. Both the charge and conviction are prosecution-stage events in the criminal process. An arrest is a pre-prosecution event that occurs before a charge is laid (if at all), not a prosecution-stage event. Nothing in the CDSA, including s. 4.1(2), or the Criminal Code suggests that, by enacting a limited exemption from the prosecution of simple possession, Parliament also intended to remove the existing police power to arrest under s. 495(1) of the Criminal Code.
[ 148 ] Third, the context of s. 4.1(2) confirms that Canada's Parliament chose not to do what several U.S. states did in expressly extending the Good Samaritan exemption to arrest (see para. 141 above). Parliament was aware of these U.S. laws and chose not to include an express exemption from arrest in s. 4.1(2).
[ 149 ] Fourth, s. 4.1(2) does not prevent individuals from being charged or convicted of other offences, even offences such as possession for the purposes of trafficking for which possession is an element of the offence. The limited exemption under s. 4.1(2) was not intended to protect anyone who comes to the scene of a drug overdose, and nothing in s. 4.1(2) prevents individuals from being prosecuted for more serious offences, including those for which possession is an element of the offence.
[ 150 ] Fifth, the context of s. 4.1 as a whole confirms that when Parliament wanted to do more than provide an exemption from charge and conviction, it said so. Section 4.1(5) of the CDSA goes beyond providing an exemption from charge and conviction by also deeming a condition in a person's pre-trial release, probation order, conditional sentence, or parole relating to an offence under s. 4(1) not to have been violated at all (see paras. 177-182 below). Parliament expressly provided for this broader protection in ss. 4.1(4) and (5) of the CDSA. If Parliament had intended s. 4.1(2) also to prohibit arrest, it could have done so expressly, either in s. 4.1(2) or in an additional subsection.
[ 151 ] In light of these contextual considerations, the text of s. 4.1(2) confirms that the provision limits the medical emergency exemption to the prosecution stage of the criminal process. The provision does not prohibit the police from exercising the power to arrest under s. 495(1) of the Criminal Code for the offence of simple possession.
(c) Purpose
[ 152 ] The purpose of s. 4.1(2) to balance public health and public safety confirms the textual reading that the provision does not prohibit the police from exercising the power to arrest.
[ 153 ] I accept, as does my colleague, that one of the primary purposes of s. 4.1(2) is to promote public health by removing a legal disincentive to calling for help. As the sponsor of the bill stated in the House of Commons: "Unfortunately, with drug overdoses, many people are afraid to call 911 for fear of getting charged. People die. Saving lives needs to be the priority" (House of Commons Debates, May 4, 2016, at p. 2893 (emphasis added)). Parliament's chief concern was removing people's fear of being "charged" with an offence — consistent with the text of s. 4.1(2), which limits the exemption to being "charged or convicted".
[ 154 ] In addition to promoting public health, however, s. 4.1(2) of the CDSA also sought to preserve public safety. Like the CDSA as a whole, s. 4.1(2) seeks to balance public health and public safety. The bill's sponsor, Mr. McKinnon, expressly told the Standing Senate Committee on Legal and Constitutional Affairs:
Bill C-224 is not about outstanding warrants, it's not about drunk driving and it's not about weapons-related offences. It does not exempt anyone from further investigation and it does not limit police powers.
(Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, February 8 and 9, 2017, at p. 21:13)
[ 155 ] Mr. McKinnon's clear assurance to the Standing Senate Committee on Legal and Constitutional Affairs that the proposed measures would "not limit police powers" is consistent with the text of s. 4.1(2). Parliament should not be presumed to have intended to eliminate the existing power to arrest under s. 495(1) of the Criminal Code when the bill's sponsor expressly told Parliament that the proposed measures would not limit police powers.
[ 156 ] My colleague has concluded that, despite the plain text of s. 4.1(2), the provision should be read to prohibit an arrest for simple possession, because the parliamentary debates also included statements that equated immunity from "arrest" with immunity from "charge" and "conviction". With respect, I disagree.
[ 157 ] In performing the purposive analysis, it is important to bear in mind that "the purpose of a provision does not always warrant a broad interpretation of that provision" (R. v. Rafilovich, 2019 SCC 51, [2019] 3 S.C.R. 838, at para. 30). One cannot simply invoke the broadly stated purpose of legislation — here, "saving lives" — to justify reading the text broadly and ignoring the public safety objective that qualifies the primary purpose.
[ 158 ] In the legislative debates, it was Parliament's own assessment that the limited exemption from charge and conviction was sufficient to encourage callers to dial 9-1-1. There is no evidence in the text of s. 4.1(2), and no independent evidence in the record on appeal, that an immunity from charge and conviction alone was insufficient to encourage callers to dial 9-1-1, or that it was also necessary to extend that exemption to arrest.
[ 159 ] My colleague suggests that the public "may not be readily apparent" to understand the distinction between immunity from arrest and immunity from charge (para. 45). The answer to this concern, however, is the Health Canada guidance documents on what the act does and does not cover, not judicial legislation that reads into a statutory provision words that Parliament chose not to include.
[ 160 ] A purposive analysis must account for the two policy objectives that Parliament balanced — public health and public safety. Because the purpose of s. 4.1(2) is to balance these two objectives, that purpose is promoted by allowing the police to exercise the power to arrest for simple possession. If Parliament had wanted to prohibit arrest, it would have said so expressly.
[ 161 ] On my colleague's reading, the police cannot arrest for simple possession, and by logical implication cannot detain to investigate simple possession at the scene of an overdose. This would render the police essentially unable to control the scene of an overdose, because the police could not arrest or detain to investigate the principal criminal offence (possession of a controlled substance) at such a scene. Such an interpretation would severely compromise the ability of the police to protect the public when attending at the scene of an overdose.
[ 162 ] Turning to the legislative debates themselves, not all legislative debates reflect Parliament's intentions, since parliamentarians may use loose language or make statements that were not intended to form part of the legislative history. As Driedger explained, Hansard evidence is not conclusive but it is admissible as evidence of the background and purpose of a provision (Sullivan, The Construction of Statutes (7th ed. 2022), at pp. 649-50). Hansard evidence will be reliable when the statements "are clear and reliable and not inconsistent with the text" (para. 30).
[ 163 ] In this case, however, Mr. McKinnon's clear and unambiguous assurance to the Standing Senate Committee on Legal and Constitutional Affairs that the proposed measures would "not limit police powers" is directly inconsistent with my colleague's reading of s. 4.1(2). It is not open to this Court to rely on the statements of other parliamentarians who described the exemption more broadly, while ignoring or discounting the clear assurances by the bill's sponsor to the contrary.
[ 164 ] My colleague also relies on a statement by the Parliamentary Secretary to the Minister of Health, who said that "we cannot arrest our way out of this problem". I accept that Parliament wanted to move away from focusing solely on criminal prosecution in addressing the drug epidemic. However, the Parliamentary Secretary's statements must be read against the backdrop of Mr. McKinnon's specific assurances that the bill would "not limit police powers". When they are read in their proper context, the Parliamentary Secretary's statements reflect a policy preference for medical intervention over prosecution, not a legislative intention to prohibit arrest.
[ 165 ] The purpose of s. 4.1(2) therefore confirms the textual reading that the provision limits the medical emergency exemption to charge and conviction.
(3) The Necessity Implication Argument
[ 166 ] My colleague concludes that, by "necessary implication", s. 4.1(2) of the CDSA provides immunity from arrest, because Parliament could not have intended to immunize individuals from charge and conviction while still allowing for an arrest (para. 71). With respect, this reasoning does not withstand scrutiny when one examines the text, context, and purpose of s. 4.1(2).
[ 167 ] The "necessary implication" argument invoked by my colleague assumes that immunity from charge and conviction necessarily implies immunity from arrest. However, as I have explained, charge, conviction, and arrest are three distinct steps in the criminal process, each with its own legal requirements and consequences. A provision that expressly provides an exemption from charge and conviction does not, by necessary implication, also provide an exemption from arrest.
[ 168 ] If Parliament had wanted to exempt individuals from arrest, it would have said so, as several U.S. states have done in analogous legislation. Parliament was aware of these U.S. laws and deliberately chose not to include an express exemption from arrest in s. 4.1(2).
[ 169 ] The "necessary implication" argument also assumes that an arrest for simple possession necessarily serves no useful purpose and is inconsistent with the limited exemption from charge and conviction. But as explained above (at para. 106), the purpose of s. 4.1(2) includes not only promoting public health but also preserving public safety. An arrest for simple possession may serve a legitimate public safety purpose, including preventing the continuation or repetition of the offence, protecting the police and the public, and enabling the police to control the scene of an overdose.
[ 170 ] I conclude that s. 4.1(2) does not, by necessary implication, prohibit the police from arresting for simple possession.
(4) Resolving the Interpretive Conflict
[ 171 ] In summary, the text, context, and purpose of s. 4.1(2) of the CDSA all point to the same conclusion: the provision provides only a limited exemption from being "charged or convicted" of simple possession and does not prohibit the police from exercising the power to arrest under s. 495(1) of the Criminal Code.
[ 172 ] My colleague's reading would require this Court to add words to the text of s. 4.1(2) — specifically, "arrested" — that Parliament chose not to include. As the text of a statute must remain "the anchor of the interpretive exercise" (CISSS A, at para. 24), it is not open to this Court to read into a statute words that Parliament chose not to include.
[ 173 ] "Words used in legislative text impose an outer limit on meaning, and normally there is only limited room for expansion between the ordinary meaning of a provision and the outer limit fixed by its words. If a court wishes to go beyond that limit, it must add new words to the text to cover the overlooked circumstance (i.e., words that expand the scope of the legislation), replace the specific words chosen by the drafter with more general words (i.e., words that describe a broader category), or read the words chosen by the drafter as giving effect to a concept that goes beyond their ordinary meaning" (CISSS A, at para. 24, quoting M. Mancini, "Statutory Interpretation" in Oxford Handbook of Canadian Constitutional Law (2017), 924, at p. 927).
[ 174 ] I would note that the interpretive conclusion I reach is also consistent with the conclusion of every court that has considered the point until the present case: the statutory power to arrest under s. 495(1) of the Criminal Code is not affected by the limited exemption from charge and conviction in s. 4.1(2) of the CDSA (see Aube v. R., 2022 NBCA 65; R. v. Lévesque, 2021 QCCQ 9272; R. v. Beaulieu, 2023 QCCQ 8005).
[ 175 ] Accordingly, the police were entitled to arrest Mr. Wilson for the offence of simple possession. I would respectfully disagree with my colleague's conclusion that s. 4.1(2) of the CDSA prohibits the police from arresting for simple possession.
(5) The Majority's Reliance on Parliamentary Debates
[ 176 ] My colleague relies extensively on parliamentary debates to support her reading of s. 4.1(2). With respect, the parliamentary debates support the opposite conclusion.
[ 177 ] In R. v. Rafilovich, 2019 SCC 51, [2019] 3 S.C.R. 838, this Court explained when Hansard evidence is reliable: "Hansard evidence of what the bill's sponsor said before Parliament is reliable evidence of legislative intent when the statements are clear and reliable and not inconsistent with the text" (para. 30).
[ 178 ] In this case, the Hansard evidence is clear and unambiguous: the bill's sponsor, Mr. McKinnon, told the Standing Senate Committee on Legal and Constitutional Affairs that the proposed measures would "not limit police powers" (Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, February 8 and 9, 2017, at p. 21:13). This is a clear and reliable statement by the bill's sponsor that is entirely consistent with the text of s. 4.1(2), which limits the exemption to charge and conviction. I would give this statement significant weight.
[ 179 ] By contrast, my colleague has concluded that Mr. McKinnon's clear assurance to Parliament must be disregarded, because other parliamentarians used the terms "arrest" and "charge" interchangeably when discussing the bill. With respect, I cannot agree.
[ 180 ] The settled meaning of legal terms is not changed by repetition on the floor of the House of Commons or Senate. In any event, when various parliamentarians used the words "arrest" and "charge" interchangeably, their statements must be read in context. The parliamentarians were not articulating a legislative intention to extend the exemption to arrest; rather, they were describing the overall effect of the bill in colloquial terms. A careful reading of Hansard does not provide support for the conclusion that the legislative intent was to prohibit the power to arrest.
[ 181 ] The Hansard evidence, properly read, therefore supports the textual interpretation that s. 4.1(2) of the CDSA limits the exemption to charge and conviction.
(d) Expanding Section 4.1(2) To Prohibit an Arrest for Simple Possession Exposes the Police and the Public to Significant Safety Risks
[ 182 ] In Rafilovich, this Court also warned that "primary legislative purposes, however important, 'are not pursued at all costs and are clearly intended to be balanced with other important interests within the context of a carefully calibrated scheme'" (para. 30, quoting Sun Indalex, at para. 174). The Court approvingly quoted Professor Sullivan's observation that "the primary goals of legislation are almost never pursued single-mindedly or whole-heartedly", and that "various secondary principles and policies are inevitably included in a way that qualifies or modifies the pursuit of the primary goals" (para. 30, quoting Sullivan on the Construction of Statutes (6th ed. 2014) ("Sullivan (2014)"), at p. 271 (footnote omitted)). Secondary principles, as Professor Sullivan explained, are often only revealed "through analysis of the legislative scheme, and more particularly through analysis of the relation of each provision to the others in the Act" (para. 30, quoting Sullivan (2014), at p. 271).
[ 183 ] Even an appropriately formulated statement of statutory objectives cannot justify an outright rejection of the text, since the text must remain "the anchor of the interpretive exercise" (CISSS A, at para. 24). The text may "tell an interpreter just how far a legislature wanted to go in achieving some more abstract goal" (para. 24, quoting Mancini, at p. 927).
[ 184 ] The statements I have quoted from Mr. McKinnon tell the interpreter exactly how far Parliament wanted to go in achieving the goal of saving lives: far enough to immunize from charge and conviction but not far enough to limit police powers, including the power to arrest.
[ 185 ] As further support for my reading, I am reinforced by the consequences of the opposite view: interpreting s. 4.1(2) to prohibit the police power to arrest for simple possession would necessarily also prohibit the police power to detain to investigate for simple possession. These are "absurd consequences" that this Court should not attribute to Parliament in the absence of clear statutory language.
[ 186 ] My colleague states that it is "unnecessary to address the power of investigative detention on reasonable suspicion that an immune possession offence has been committed" (para. 79). With respect, I disagree. The ineluctable logic of my colleague's reading is that the police cannot detain to investigate simple possession at the scene of an overdose. This would deprive the police of an important tool to protect the public when attending at the scene of an overdose.
[ 187 ] I therefore conclude that expanding s. 4.1(2) to prohibit the police power to arrest necessarily also prohibits the police power to detain to investigate simple possession. I would note that the police power to detain must be based on a specific ground for detention, such as a reasonable suspicion that a person has committed a specific criminal offence. If the police cannot arrest for simple possession — which remains a criminal offence under s. 4(1) of the CDSA — it is difficult to see how they can detain to investigate the same offence.
[ 188 ] In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, this Court held that the police can detain an individual "where it is reasonably necessary in the totality of the circumstances" (para. 45). The police can detain to investigate the reasonable suspicion of a criminal offence. If the police cannot arrest for simple possession because s. 4.1(2) prohibits them from doing so, can they still detain to investigate simple possession? In my view, if they cannot arrest for simple possession, they cannot detain to investigate simple possession either, since there is no longer reasonable grounds to detain for that offence.
[ 189 ] My colleague says that this issue is "unnecessary to address", because Mr. Wilson's arrest was not justified, in her view, on the basis of anything other than simple possession. But that question turns on the facts of this case, and I disagree with my colleague's reading of those facts for the reasons that follow.
[ 190 ] The more important question — whether the police can detain to investigate simple possession when s. 4.1(2) applies — is a legal question that directly affects the ability of the police to protect the public at the scene of an overdose. That question should be addressed, and in my view the answer is clear: the police cannot detain to investigate simple possession if they cannot arrest for that offence. My colleague's reading would therefore significantly compromise the ability of the police to manage the scene of an overdose.
[ 191 ] I turn now to my colleague's statement that the police retain the power to detain at the scene of an overdose to investigate other offences. Specifically, she says the police retain the power to conduct an "investigative detention where they reasonably suspect an offence other than simple possession has been committed" (para. 76). With respect, the difficulty with this view is that it limits the police to detaining only where they reasonably suspect an offence other than simple possession. But in this case, for example, when Cst. Marshall first arrived at the scene, alone, the only offence she could reasonably suspect was simple possession. She could not reasonably suspect, at that point, that the individuals were committing a firearms-related offence. It was only after the arrest that she learned of the presence of weapons. On my colleague's reading, Cst. Marshall could not have even initially detained the individuals because the only offence she could have reasonably suspected was simple possession, which on her reading is immune from arrest and, by implication, from investigative detention.
[ 192 ] My colleague also says that the police retain the power to use their "plain view seizure power" (para. 75). However, a plain view seizure does not, on its own, provide the police with a power to arrest or detain for investigation. The plain view doctrine allows the police to seize an item in plain view, but it does not, on its own, provide grounds for arrest or detention.
[ 193 ] I now turn to the s. 9 analysis.
[ 194 ] Mr. McKinnon's assurance to Parliament that the bill did "not limit police powers" applies to police powers generally. It is not limited to powers in relation to offences other than simple possession. My colleague's reading necessarily limits the police power in relation to simple possession, since on her reading, the police cannot arrest for simple possession, cannot detain to investigate simple possession, and thus are limited to reacting to specific threats as they occur.
[ 195 ] Had Parliament intended to radically reduce police investigatory powers or change police conduct at the scene of an overdose, it could have done so. Parliament could have limited police powers with an express exemption from "arrest", as has been done in several U.S. states (see, e.g., N.M. Stat. Ann. § 30-31-27.1 (2025); Colo. Rev. Stat. § 18-1-711(1) (2025); Del. Code Ann. tit. 16, § 4769(b) (2025)). It did not do so. Parliament chose a more limited response to the drug overdose crisis, focusing on the exemption from charge and conviction only. This limited response is consistent with Mr. McKinnon's assurance to Parliament that the bill did not limit police powers.
[ 196 ] I therefore respectfully disagree with my colleague who, despite Mr. McKinnon's clear assurance to the Standing Senate Committee on Legal and Constitutional Affairs that the proposed measures would "not limit police powers", concludes that "Parliament intended to create an exception to the use of the police power of arrest for that offence" (para. 71). With respect, when engaged in statutory interpretation, the Court must give effect to what Parliament said, not merely what it is supposed to have intended:
the words used in legislative text impose an outer limit on meaning, and normally there is only limited room for expansion between the ordinary meaning of a provision and the outer limit fixed by its words. If a court wishes to go beyond that limit, it must add new words to the text to cover the overlooked circumstance (i.e., words that expand the scope of the legislation), replace the specific words chosen by the drafter with more general words (i.e., words that describe a broader category), or read the words chosen by the drafter as giving effect to a concept that goes beyond their ordinary meaning
(CISSS A, at para. 24, quoting Mancini, at p. 927)
[ 197 ] I accept that courts may construe a statutory provision to include matters not expressly addressed when necessary in order to achieve the object intended by the legislation (see ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 51). In this case, however, the result of my colleague's interpretation is to eliminate the existing police power to arrest under s. 495(1) of the Criminal Code for the offence of simple possession.
[ 198 ] I recognize that during the legislative debates several parliamentarians spoke colloquially by using the terms "charge", "arrest", and "prosecution" interchangeably (see, e.g., House of Commons Debates, May 4, 2016, at pp. 2895 (Mr. Todd Doherty), 2898 (Ms. Kamal Khera), and 2900 (Ms. Christine Moore); House of Commons Debates, vol. 148, No. 65, 1st Sess., 42nd Parl., June 3, 2016, at p. 4032 (Ms. Brigitte Sansoucy); Debates of the Senate, vol. 150, No. 80, 1st Sess., 42nd Parl., December 1, 2016, at pp. 1910-11 (Senator Serge Joyal)). However, as I have said, the settled meaning of legal terms is not changed by how they are used on the floor of the House of Commons or the Senate.
[ 199 ] With respect, I cannot agree. These statements stand in stark contrast with Mr. McKinnon's plain assurances to Parliament about the narrow nature of the exemption, which is consistent with the final text of s. 4.1(2). The settled meaning of legal terms is not changed by repetition on the floor of the House of Commons or Senate. No such principle regarding the use of Hansard evidence has ever been endorsed by this Court.
(d) Expanding Section 4.1(2) To Prohibit an Arrest for Simple Possession Exposes the Police and the Public to Significant Safety Risks
[ 200 ] Although I conclude that the text, context, and purpose all show that Parliament did not intend to prohibit the power to arrest under s. 495(1) of the Criminal Code for the offence of simple possession, I am reinforced in this conclusion by considering some of the consequences of the contrary view. As is well known, "[c]ourts should interpret legislation under the presumption that a legislature does not intend its enactments to lead to absurd consequences" (R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 79).
An interpretation of a statutory provision produces absurd consequences if, for example, it frustrates the purpose of the legislation; creates irrational distinctions; leads to ridiculous or futile consequences; is extremely unreasonable or unfair; leads to incoherence, contradiction, anomaly, or disproportionate or pointless hardship; undermines the efficient administration of justice; or violates principles of natural justice.
(R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at para. 77)
[ 201 ] Expanding s. 4.1(2) to encompass an exemption from arrest for simple possession would be impractical and would necessarily include an exemption from investigative detention, exposing the police and the public to significant safety risks when they arrive at the scene of an overdose. These are "absurd consequences" that Parliament should be presumed not to have intended.
(i) An Exemption From Arrest For Simple Possession Would Be Impractical
[ 202 ] Expanding s. 4.1(2) to include an exemption from arrest for simple possession would be impractical because it would leave police officers in a state of uncertainty at the scene of an overdose and would limit their ability to properly fulfill their duties to protect life and public safety and to prevent crime.
[ 203 ] Under the wording of s. 4.1(2), a person is not automatically entitled to the limited exemption under the provision whenever they call emergency services about a potential overdose. Section 4.1(2) exempts a caller or a person at the scene only if its conditions are met. Police officers attending at the scene may be unable to determine immediately whether the situation qualifies under s. 4.1(2), and therefore whether they have the power to arrest the individuals at the scene for simple possession.
[ 204 ] First, s. 4.1(2) only provides that individuals cannot be "charged" or "convicted" of the offence of simple possession. It does not prevent individuals from being charged or convicted of other offences, even offences such as possession for the purposes of trafficking for which possession is an element of the offence (see, e.g., Aube v. R., 2022 NBCA 65, at paras. 67-68). Accordingly, if an individual is at the scene of an overdose, police officers would be required to assess on the spot whether s. 4.1(2) could apply or whether the individual could be charged with an offence, such as possession for the purpose of trafficking.
[ 205 ] Second, some courts have held that, to qualify as a medical emergency, the consumption of drugs must cause a life-threatening situation, and not merely a disturbed mental state (R. v. Lévesque, 2021 QCCQ 9272, at para. 30). Others have held that, at the time the call for assistance is made, the caller must reasonably believe that the overdose is a medical emergency (R. v. Beaulieu, 2023 QCCQ 8005, at para. 20). It would be impractical for a police officer to assess on the spot, at the scene of a drug overdose, whether these conditions have been met.
[ 206 ] Finally, there will also likely be cases when the police cannot determine on the spot whether evidence was discovered as a result of a person seeking assistance or remaining at the scene.
[ 207 ] Such determinations as to whether s. 4.1(2) applies are not well-suited to split-second decision-making by police officers at the site of a suspected overdose, where the situation may be rapidly evolving and the police must act promptly to balance the safety of the overdose victim and the safety of others at the scene and the public at large. Police must discharge their duty to "use [their] best endeavours to prevent crime" and to protect the safety of the public and their own safety in rapidly evolving, dangerous situations (Royal Canadian Mounted Police Act, s. 18; see also Coughlan and Luther, Detention and Arrest (3rd ed. 2024), at pp. 79-81; Penney, Rondinelli and Stribopoulos, Criminal Procedure in Canada (3rd ed. 2022), at pp. 16-18).
(ii) Prohibiting an Arrest Would Also Prevent the Police From Conducting an Investigative Detention and Limit Them to Reacting to Specific Safety Threats as They Occur
[ 208 ] Expanding s. 4.1(2) to prohibit an arrest would, logically, also prohibit an investigative detention for the offence of simple possession. This would limit the police to reacting to specific threats as they occur, undermining the safety of the public and the police.
[ 209 ] Although the trial judge specifically held that the police lawfully "detained" Mr. Wilson "for investigative purpose[s]" (p. 15), the Court of Appeal did not address the lawfulness of the initial investigative detention in this case. My colleague similarly states that it is "unnecessary to address the power of investigative detention on reasonable suspicion that an immune possession offence has been committed" (para. 79).
[ 210 ] I respectfully disagree that it is unnecessary to address the issue of investigative detention. In oral argument before this Court, the Crown specifically pleaded that Mr. Wilson's position "would remove any ability for the police to detain for investigation" (transcript, at p. 6). This issue was squarely raised in argument and amply debated before this Court (see transcript, at pp. 5-6, 41-58).
[ 211 ] This issue cannot be avoided. The ineluctable logic of Mr. Wilson's submission to this Court is that it was unlawful for the police to detain him to investigate the offence of possession. Such a conclusion would severely compromise the ability of the police to investigate at the scene of an overdose where, as here, there is clear evidence of a continuing criminal offence of possession.
[ 212 ] This conclusion would also seriously impact the safety of the public and the police. It would leave the police unable to control a suspected crime scene by employing their common law power to detain for investigative purposes. Absent the power to arrest and detain for investigation, police attending at the scene of a suspected overdose will be limited to reacting to specific safety threats as they occur. They will be unable to proactively protect the safety of the victims, the public, police officers, and emergency medical personnel, and their ability to prevent the continuation of ongoing criminal conduct of possession will be severely compromised.
[ 213 ] In this case, for example, Cst. Marshall, who arrived at the scene alone, would have been prevented from detaining the individuals at the scene for the purpose of investigation. This would have undermined Cst. Marshall's common law and statutory duties to proactively protect the emergency medical personnel at the scene, the construction workers nearby, the many young children arriving for school, and Cst. Marshall herself.
[ 214 ] I accept that, under limited circumstances, an officer could conduct a common law safety search if the officer has "reasonable grounds to believe that there is an imminent threat to the safety of the public or the police" (MacDonald, at para. 46; see also paras. 32 and 40-44). But a safety search is generally "a reactionary measure" to a threat posed by another (para. 32), rather than a proactive tool for officers to protect the public and themselves and to prevent ongoing criminal offences.
[ 215 ] The undoubted power of the police to conduct a warrantless search under exigent circumstances under s. 487.11 of the Criminal Code is also of no moment. On my colleague's reading, this power would apply only where there are reasonable grounds to believe that an offence other than the offence of simple possession requires investigation. If, as my colleague concludes, the police cannot exercise the power to arrest or detain for simple possession, there is no basis on which to believe that police officers can rely on the exigent circumstances power to conduct a warrantless search to investigate the offence of simple possession.
[ 216 ] The law does not require a police officer such as Cst. Marshall to be sent into harm's way, alone at the scene of an ongoing criminal offence, without the necessary police power to protect the public or herself. Absent a clear statement of legislative intent, I cannot accept that Parliament intended to place the public and police officers in such danger. These concerns are especially acute at the scene of a fentanyl overdose, where the fentanyl involved was potentially harmful to others in the area, including the schoolchildren who were arriving for school when the police arrived.
(4) Conclusion
[ 217 ] Applying a textual, contextual, and purposive analysis, I conclude that s. 4.1(2) of the CDSA does not prohibit an arrest without warrant under s. 495(1) of the Criminal Code for the offence of simple possession. In this case, s. 4.1(2) of the CDSA operated exactly as intended. Mr. Wilson was never charged with the offence of simple possession. At the same time, s. 4.1(2) was never intended to prohibit the police from arresting for simple possession.
[ 218 ] I will now consider whether Mr. Wilson's arrest and search incident to arrest infringed his rights under ss. 8 or 9 of the Charter.
B. Did the Police Infringe Sections 8 or 9 of the Charter?
(1) The Police Did Not Infringe Section 9 of the Charter
[ 219 ] The Court of Appeal found that the police infringed s. 9 of the Charter because they arrested Mr. Wilson solely for the improper purpose of charging him with an offence for which he could not lawfully be charged or convicted. I respectfully disagree with the Court of Appeal's factual finding. There was no evidence that Mr. Wilson was arrested solely for the purpose of being charged with simple possession. Cst. Marshall arrested Mr. Wilson based on her reasonable grounds to believe that he was committing the offence of simple possession, not for the purpose of laying a charge.
(a) General Principles
[ 220 ] Section 9 of the Charter provides that "[e]veryone has the right not to be arbitrarily detained or imprisoned."
[ 221 ] Detention under s. 9 refers to "suspension of the individual's liberty interest by a significant physical or psychological restraint" (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44; see also Mann, at para. 19). The purpose of s. 9 is "to protect individual liberty from unjustified state interference" (Grant, at para. 20). Section 9 operates to limit "the state's ability to detain arbitrarily" (para. 20).
[ 222 ] The analysis under s. 9 of the Charter proceeds in two steps. First, a court must determine whether the individual was detained. Detention occurs whenever "a state agent, by way of physical or psychological restraint, takes away an individual's choice simply to walk away" (Grant, at para. 25). Second, a court must determine whether that detention was arbitrary. A detention is arbitrary when it is "not authorized by law", or when the law providing the authorization is itself arbitrary, or when the detention is carried out in an arbitrary manner (Grant, at para. 54).
(b) The Arrest Was Authorized by Section 495(1)
[ 223 ] Mr. Wilson's arrest without warrant was authorized under s. 495(1) of the Criminal Code. Cst. Marshall noticed a baggie of what appeared to be crystal methamphetamine in plain view immediately upon arriving at the scene and then saw a streak of white powder appear on the ground near Mr. Wilson's feet. Simple possession remains an offence. As the Court of Appeal correctly noted, "it was properly open to [Cst. Marshall] to arrest [Mr. Wilson] for simple possession, since she had reasonable grounds to believe that he was committing the offence at the time of the arrest" (para. 22). Mr. Wilson does not dispute that Cst. Marshall had reasonable grounds to believe that he was committing the offence of simple possession.
[ 224 ] Before this Court, Mr. Wilson submits that s. 495 of the Criminal Code only authorizes an arrest to charge the arrested person with a crime and bring them before the court to face prosecution for that charge. But, as set out above, an arrest under s. 495 may be conducted for a purpose other than laying a charge and does not require the police to consider whether a charge will ultimately be laid (see R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 44; R. v. Lerke (1986), 1986 ABCA 15, 24 C.C.C. (3d) 129, at p. 132).
[ 225 ] On its face, s. 495(1)(a) authorizes the arrest of any person whom a peace officer believes, on reasonable grounds, is about to commit an indictable offence. The police can thus arrest to prevent the commission of an indictable offence (Fleming v. Ontario, 2019 SCC 45, [2019] 3 S.C.R. 519, at para. 61). Plainly, a person who is arrested on the basis that they are about to commit an indictable offence cannot simultaneously be charged with having already committed that offence. Parliament understood this and enacted s. 495(1)(a) accordingly. The same is true, by analogy, of arrests made to prevent the continuation or repetition of the offence for which the arrest is made (see R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51).
[ 226 ] My colleague states that "our law has never permitted arrest purely for the purposes of investigation", and that "purely investigative arrests would be a novel expansion of police powers" (para. 7). In support of this proposition, she cites (at para. 65; see also para. 90) this Court's decision in Feeney, at para. 35, as holding that "[a]n arrest cannot be made solely for the purpose of investigation". She then uses this proposition to argue that arrests must be connected to charge and prosecution.
[ 227 ] I respectfully disagree. To ensure that there is no misunderstanding on this point, the quoted statement from Feeney cannot be read in isolation. At issue in Feeney was whether an officer may arrest if they have subjective grounds but lack objective grounds to believe that an offence has been committed. In that context, this Court stated that an officer may not arrest "solely for the purpose of investigation, but if grounds exist on a subjective and objective basis, the fact that police intend to continue the investigation and do so does not invalidate the arrest" (para. 35 (emphasis added)).
[ 228 ] Read as a whole, Feeney does not prohibit an arrest to further an investigation of a criminal offence when the police already have reasonable grounds to believe that an offence has been committed. Rather, Feeney holds that an arrest cannot be made to obtain reasonable grounds. Feeney relied on Storrey, where this Court expressly rejected the notion "that whenever a lawful arrest is made, all the information gathered by the police during the course of the investigation has become improper and constitutes fruit of the poisonous tree" (Storrey, at p. 250). In short, once the reasonable grounds for an arrest exist, the fact that the police also intended to continue investigating does not make the arrest unlawful.
. . . in my view the objective test was not met regardless of the officer's views. An arrest cannot be made solely for the purpose of investigation, but if grounds exist on a subjective and objective basis, the fact that police intend to continue the investigation and do so does not invalidate the arrest: see Storrey, supra. A lawful arrest may be made that allows the police to continue their investigation . . . .
(Feeney, at para. 35 (emphasis added))
[ 229 ] The Court of Appeal erred in finding that s. 495(1) did not authorize the police to arrest Mr. Wilson because "the only purpose for the first arrest of Mr. Wilson was to charge him under s. 4(1) of the CDSA" (para. 56; see also para. 61). Cst. Marshall never testified as to whether her purpose in arresting Mr. Wilson was to charge him with the offence of possession. Nor is there anything in her evidence — or in the evidence of any other witness — to support the Court of Appeal's finding that the only purpose of the arrest was to charge Mr. Wilson with simple possession.
[ 230 ] I conclude that Mr. Wilson's arrest was authorized by law.
(c) The Arrest Was Conducted Reasonably
[ 231 ] An arrest or detention authorized by law may nonetheless be unlawful when the manner in which the individual was arrested or detained was not reasonably necessary in the circumstances (R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at paras. 31-43). Mr. Wilson contends that because his arrest was for the unlawful purpose of laying a charge for which he was exempt, his arrest was not reasonably necessary in the circumstances.
[ 232 ] I disagree. In this case, Mr. Wilson's arrest allowed the police to prevent him from continuing to commit the offence of simple possession. Given the proximity to a school where many young children were present and the nature of the drugs in plain view, Mr. Wilson's arrest was reasonably necessary and for a proper purpose.
[ 233 ] I would add that not all arrests for simple possession in the context of a medical emergency will necessarily be reasonable or justified. For example, an arrest made to intimidate or harass an individual may be unlawful. Each case will turn on its particular facts (R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 31; Mann, at para. 45).
[ 234 ] In this case, however, it was reasonable for the police officers to arrest Mr. Wilson to prevent the continuation or repetition of the offence of simple possession. I also see no basis to impugn the trial judge's finding that the arrest was conducted in a reasonable manner.
(d) Conclusion
[ 235 ] Mr. Wilson's arrest was authorized by s. 495(1) of the Criminal Code, and it has not been suggested that s. 495 is, itself, arbitrary. The arrest was also conducted reasonably. Accordingly, there was no breach of s. 9 of the Charter.
(2) The Police Did Not Infringe Section 8 of the Charter
(a) General Principles
[ 236 ] The power to search incident to arrest is "extraordinary" because it does not require a warrant or reasonable and probable grounds (R. v. Stairs, 2022 SCC 11, [2022] 1 S.C.R. 169, at para. 34, quoting R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at paras. 16 and 45). Instead, the police only require "some reasonable basis" to believe that their law enforcement purpose is connected to the arrest (Stairs, at para. 34; Fearon, at para. 17).
[ 237 ] For a search incident to arrest to be reasonable and therefore consistent with s. 8 of the Charter, three requirements must be met: (1) the individual was lawfully arrested; (2) the search was truly incidental to the arrest in the sense that it is for a valid law enforcement purpose related to the reasons for the arrest; and (3) the search was conducted in a reasonable manner (R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 38; Stairs, at para. 34).
(b) The Search Incident to Arrest Was Reasonable
[ 238 ] In this case, the first and third requirements are easily met. Mr. Wilson was lawfully arrested and the search was conducted in a reasonable manner. The search was no more invasive than necessary and was limited to searching for discrete items related to the arrest and to preserving public safety.
[ 239 ] As for the second requirement, Mr. Wilson contends that a search incident to arrest can only be for the purpose of "(i) safely bring[ing] people before the courts, and (ii) discover[ing] and preserv[ing] evidence that could then be used to establish guilt at the accused's trial" (R.F., at para. 55). Mr. Wilson submits that since neither purpose applies in this case, the search incident to arrest was not "truly incidental" to the arrest.
[ 240 ] With respect, this submission is inconsistent with this Court's jurisprudence. In Fearon, this Court held that a search incident to arrest can serve several valid law enforcement objectives, including "to allow police to identify and mitigate risks to public safety or to assist them to preserve evidence that might otherwise be lost or destroyed" (para. 49 (emphasis added)).
[ 241 ] In this case, the search of the truck for concealed drugs was related to Mr. Wilson's arrest and was motivated by concerns for public safety. Cst. Marshall testified that she had public safety concerns because she was responding to a possible fentanyl overdose, which she noted "is a very dangerous substance to . . . handle" and "a huge officer safety risk" (A.R., at p. 99). The trial judge accepted that Cst. Marshall had legitimate public safety concerns about the drugs in the truck.
[ 242 ] Cst. Marshall also knew that Mr. Wilson and his companions likely had crystal methamphetamine in their possession outside a school where many young children were present. She saw a baggie of crystal methamphetamine on the ground that appeared to have fallen from the truck and a streak of white powder near Mr. Wilson's feet. The three suspects had been seen walking around the perimeter of the truck. The search of the truck was therefore related to the arrest and was motivated by the reasonable concerns of officers for public safety.
[ 243 ] Accordingly, the search incident to the arrest for simple possession was reasonable. The police did not infringe s. 8 of the Charter.
(3) Conclusion
[ 244 ] The police did not infringe ss. 8 or 9 of the Charter by arresting Mr. Wilson for the offence of simple possession or by conducting a search incident to arrest.
C. Should the Evidence Be Excluded Under Section 24(2) of the Charter?
[ 245 ] Because the police did not breach ss. 8 or 9 of the Charter, it is unnecessary to consider whether the evidence should be excluded under s. 24(2).
V. Disposition
[ 246 ] I would allow the appeal, set aside the acquittals, and restore the convictions.
Appeal dismissed, Côté, Rowe and Jamal JJ. dissenting.
Solicitor for the appellant: Ministry of Justice, Regina.
Solicitors for the respondent: Pfefferle Law Office, Saskatoon.
Solicitor for the intervener Director of Public Prosecutions: Public Prosecution Service of Canada, Winnipeg.
Solicitor for the intervener John Howard Society of Saskatchewan: John Howard Society of Saskatchewan, Regina.
Solicitors for the intervener Pivot Legal Society: MI Law, Vancouver; Pivot Legal Society, Vancouver.
Solicitors for the intervener Canadian Civil Liberties Association: Rodin Law Firm, Calgary; McKay Ferg, Calgary.
Solicitors for the intervener Criminal Lawyers' Association (Ontario): Henein Hutchison Robitaille, Toronto.
Solicitors for the interveners Canadian Drug Policy Coalition, Association des intervenants en dépendance du Québec and Harm Reduction Nurses Association: Daniel Brown Law, Toronto; Mack Law Corporation, Saanichton, B.C.
[1] The term "good Samaritan" refers to someone who gives help to people in need (Canadian Oxford Dictionary (2nd ed. 2004), sub verbo "Samaritan"; Le Grand Robert de la langue française (electronic version), sub verbo "samaritain, aine").