The scope of the police’s power of arrest is an important issue to all people as it entails a violation of people’s individual liberty and autonomy. Thus, the extent of this power and purposes the police can exercise this power for must be carefully circumscribed. In R v. Wilson, the Supreme Court of Canada addressed the extent of the police’s power to arrest in determining whether a statutory immunity from being charged or convicted for the offence of possession of a controlled substance in specific circumstances included immunity from being arrested for that offence.
Legislative Background
In response to a national public health crisis of opioid-related overdoses and deaths, Parliament enacted the Good Samaritan Drug Overdose Act (the “GSDOA”) in 2017. This act added s. 4.1 to the Controlled Drugs and Substances Act (the “CDSA”). This section, specifically s. 4.1(2), provides immunity to individuals who call for help for, or remain at the scene of, a drug overdose from “being charged or convicted” for possession of a controlled substance.
Facts Overview
Paul Eric Wilson (“Wilson”) remained at the scene of an overdose after 9-1-1 was called. He was arrested for possession of a controlled substance. A search incident to his arrest revealed evidence of other offences. Although Wilson was not charged with possession of a controlled substance, he was charged with multiple other offences. Relying on s. 4.1(2) of the CDSA, Wilson applied for an order to exclude the evidence on the grounds that it was obtained in breach of his rights to be secure from unreasonable search or seizure and to be free from arbitrary detention under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms (the “Charter”) respectively.
The Supreme Court of Canada held that s. 4.1(2), by necessary implication, included immunity from arrest
Consequently, arresting Wilson and conducting a search incident to the arrest was a serious breach of his Charter rights to be secure from unreasonable search or seizure and to be free from arbitrary detention (ss. 8 and 9 respectively).
In interpreting s. 4.1(2), Justice Karakatsnis, writing for the majority, observed that the words of a statutory provision can never be interpreted in isolation: A provision must be interpreted considering its entire purpose and context. Along those lines, clear legislative intention, not clear statutory language, is what is required to rebut the presumption against substantial legislative change to existing law.
Despite not expressly referencing “arrest”, reading s. 4.1(2) in its entire context demonstrated that the words “charged or convicted” were not used according to their “narrow, technical” meanings – instead, the provision encompasses a protection from arrest:
- Immunity from arrest is necessary to achieve Parliament’s goal in enacting s. 4.1(2), namely saving lives by encouraging individuals at a drug overdoes to call 9-1-1. Arrests and searches incident to arrest strongly dissuade people from seeking help from emergency services in the case of drug overdoses. As such, an interpretation of s. 4.1(2) which allows for arrest would greatly undermine Parliament’s intent. Moreover, the majority found that statements by legislators discussing the proposed GDSOA intended and understood that immunity from charge and conviction under s. 4.1(2) would include immunity from arrest.
- The broader context of s. 4.1 is consistent with immunity from arrest. Where a person seeks emergency assistance for or remains at the scene of a drug overdose, s. 4.1(4) provides immunity from being “charged” with an offence concerning violating a pre-trial release or probation order condition, while s 4.1(5) provides that a violation of a pre-trial release, probation order, conditional sentence, or parole condition is deemed to have not occurred. The language and operation of ss. 4.1(4) and (5) contradicts the idea that Parliament used “charged or convicted” in s 4.1(2) as precise terms of art.
- Lastly, nothing in the language of s. 4.1(2) indicates that Parliament intended to depart from the law of arrest. The majority noted the s. 495 arrest power must be exercised for the purpose for which it is granted. The law has long prohibited a warrantless arrest under s. 495 of the Criminal Code for purely investigative reasons. To the contrary, the s. 495 arrest power is intimately related to brining persons before justice to answer criminal charges. Accordingly, an officer cannot arrest a person for an offence for which there is immunity from charge and conviction. Allowing police to arrest individuals for the offence of simple possession, despite being immune from charge and conviction, to further other law enforcement goals would be a departure from this existing law and nothing in the language of the provision indicates Parliament intended such a departure.
The majority observed that the s. 4.1(2) immunity from arrest 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.
Applying s. 4.1(2) to the case at hand, Wilson’s arrest was unlawful, violating s. 9 of the Charter, and the search incident to arrest was based on an illegal arrest, violating s. 8. Consequently, the evidence obtained in breach of Wilson’s Charter rights must be excluded under s. 24(2) of the Charter given the seriousness of the breach and impact of that violation on Wilson’s Charter-protected interests.
The dissent would have allowed the appeal.
Justices Côté, Rowe and Jamal, writing for the dissent, disagreed that s. 4.1(2) of the CDSA encompasses an immunity from arrest. On its face, s. 4.1(2) provides an exemption from only two distinct and well-established steps in the criminal process: being “charged” or “convicted”. Both terms have settled legal meanings and do not encompass the legal meaning of “arrest”.
Moreover, interpreting the exemption in s. 4.1(2) as not including a prohibition of arrest promoted the CDSA’s dual purposes of protecting public safety and public health as the power to arrest promotes the pressing public safety goal in interrupting or preventing the offence of simple possession at the scene of a drug overdose.
Additionally, the dissent opined that the majority’s interpretation of s. 4.1(2) would lead to absurd consequences. It would be impractical as 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. Also, it would prohibit investigative detention for the offence of simple possession, undermining the safety of the public and the police.
Key Takeaways
- The Supreme Court held that s. 4.1(2) of the CDSA, by necessary implication, provides immunity from arrest for simple possession where the person calls for help or remain at the scene of a drug overdose. Accordingly, arrests and searches incident to arrests in these circumstance will violate the Charter rights to be to be free from arbitrary detention (s. 9) and secure from unreasonable search or seizure (s. 8).
- The Supreme Court’s comments that the s. 495 power to arrest without a warrant cannot be used for purely investigative reasons and must be exercised for the purpose for which it is granted may lead to further scrutiny of the police’s exercise of arrest power.
- This decision reinforces the principle that statutes must be interpreted according to its entire purpose and context, not just the meaning of the individual words composing it. Thus, this decision may inform future cases dealing with arguments that a statue effects legal change in the absence of express statutory language.
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