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Criminal - Controlled Drugs and Substances Act (CDSA). R. v. Wilson
In R. v. Wilson (SCC, 2025) the Supreme Court of Canada dismissed a CDSA-offence Crown appeal, that brought against Saskatchewan CA acquittals, that brought against convictions at trial.
Here the court extensively considers the 'medical emergency' ('Good Samaritan') Controlled Drug and Substance Act [CDSA s.4.1] charging and conviction exemptions, and whether they extend to exempt arrest:[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 later tried and convicted. Those convictions were overturned by the Court of Appeal, which found that the arrest was unlawful due to the immunity in s. 4.1(2) of the CDSA. Consequently, it concluded that Mr. Wilson’s right to be free from arbitrary detention under s. 9 of the Canadian Charter of Rights and Freedoms had been infringed. Further, the search incident to that arrest breached Mr. Wilson’s right to be secure from unreasonable search or seizure under s. 8 of the Charter. The Court of Appeal excluded the evidence found during that search under s. 24(2) of the Charter and entered acquittals.
[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 says Parliament deliberately omitted an explicit immunity from arrest from the text of the provision, as the police require the power to arrest so that they can search for and seize illegal drugs and prevent the commission of other crimes at the scene of an overdose. Mr. Wilson responds that immunity from arrest for simple possession of a controlled substance is necessarily implied by the immunity from charge and conviction. Permitting the arrest of people in such circumstances would undermine both the purpose of s. 4.1(2) and the well-established principle that arrest is not available solely for investigative purposes.
[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 maintain a strong disincentive to seek emergency assistance in life-threatening overdose situations. Parliament did not intend this result.
[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 adoption of the provision attest to this understanding.
[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 incidentally to arrest. Accepting the Crown’s position would let the police circumvent the principled limits this Court has placed on police powers by using arrests on immune charges as a pretext to conduct searches for other law enforcement purposes, such as investigating or preventing other offences for which no reasonable grounds are apparent. Such purely investigative arrests would be a novel expansion of police powers. There is nothing to suggest Parliament intended to expand the accepted uses of those police powers in this way when it enacted s. 4.1. The better view of the provision is that Parliament intended immunity from arrest for the offence of possession to form part of the immunity from charge and conviction for that offence.
[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 ensure both their own safety and the safety of the public. For example, the police can still seize controlled substances in plain view. They can conduct certain warrantless searches in exigent circumstances or if necessary to protect their own safety and that of the public. The police can still detain individuals if reasonably necessary in all the circumstances, conduct investigative detentions, or arrest them where there are sufficient grounds to do so outside the scope of the immunity. These powers all have their own thresholds and preconditions for use. Parliament did not intend to allow the police to bypass these preconditions by permitting arrests for an offence that cannot be charged.
[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 other investigatory and search purposes. I would affirm the unanimous decision of the Court of Appeal.
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(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 a charge. Parliament’s aim was to save lives, and it created an immunity to encourage those at the scene of an overdose to call for life-saving emergency services. In providing immunity from charge and conviction for simple possession, Parliament intended to create an exception to the use of the police power of arrest for that offence. It recognized that those most likely to call for emergency assistance in life-threatening overdose situations will often themselves be drug users: not all good Samaritans will be law-abiding.
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[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 the person sought emergency assistance for, or remained at the scene of, a drug overdose. This is the balance Parliament has struck to save lives.
[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 gathered consequent to the arrest. The Court of Appeal was right in the circumstances to enter acquittals on all charges.
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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 (para. 41). The CDSA establishes various offences regarding controlled substances, including trafficking of such substances (s. 5(1)), production of a substance without authorization (s. 7(1)), and, significant to this appeal, possession of a controlled substance (s. 4(1)).
[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 come first” (House of Commons Debates, vol. 148, No. 22, 1st Sess., 42nd Parl., February 22, 2016, at p. 1196). Ultimately, the bill passed with unanimous support in the House of Commons and Senate.
[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 (online)). Harm reduction generally refers to policies “designed to minimize negative health and social consequences associated with drug use without requiring the cessation of drug use itself” (A. Klein, “Criminal Law and the Counter-Hegemonic Potential of Harm Reduction” (2015), 38 Dal. L.J. 447, at p. 449). It reflects “a shift in focus away from moral judgment and a rejection of punitive approaches in favour of pragmatic, public health-oriented interventions geared toward mitigating measurable harms” (p. 450). During the debates in the House of Commons, the Parliamentary Secretary to the Minister of Health explained the harmony between the government’s overarching drug policy and the proposed Act: “The [GSDOA] is consistent with our government’s approach to drug policy. . . . [It] also complements our government’s efforts to curb overdose deaths . . .” (House of Commons Debates, vol. 148, No. 48, 1st Sess., 42nd Parl., May 4, 2016, at p. 2898; see also House of Commons Debates, vol. 148, No. 100, 1st Sess., 42nd Parl., October 28, 2016, at pp. 6301-2).
[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 it provides is circumscribed — a reflection of the CDSA’s public safety purpose. I agree with the Court of Appeal, at para. 52, that the act of simple possession remains an offence despite the immunity, a conclusion that is not challenged on appeal. The remaining disagreement concerns the scope of the legislative immunity: whether a person who has sought emergency assistance or remained at the scene of an overdose may be lawfully arrested for the offence of simple possession when they cannot be charged with that offence. At para 32-71 the court walks through it's reasoning in reaching it's acquittal conclusions.
. Toth v. Canada (Mental Health and Addictions)
In Toth v. Canada (Mental Health and Addictions) (Fed CA, 2025) the Federal Court of Appeal allowed an appeal of an unsuccessful JR, that against decisions "reiterating the reasoning of the notices of intent to refuse" "requests to Health Canada under subsection 56(1) [SS: 'Exemption by Minister'] of the CDSA for exemptions from section 4 of the Act to allow them to possess, transport, and consume psilocybin mushrooms for a PSAP training program".
Here the court illustrates and comments on a s.56 CDSA ['Exemption by Minister'] criminal drug exemption:[1] Psilocybin is a psychoactive compound found in certain mushrooms. It is classified as a drug under the Food and Drugs Act, R.S.C., 1985, c. F-27. It is also listed as a controlled substance under Schedule III of the Controlled Drugs and Substances Act, S.C. 1996 c. 19 (CDSA, the Act), and its possession is criminally prohibited by section 4 unless otherwise authorized. The Minister of Health has discretion under subsection 56(1) of the Act to grant exemptions from the application of section 4 where possession of a prohibited substance is necessary for medical or scientific purposes or is otherwise in the public interest.
[2] Psilocybin-assisted psychotherapy (PSAP) is the medically-supervised consumption of psilocybin. PSAP has been used for treatment or management of serious medical conditions, including end-of-life distress and treatment-resistant depression.
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[81] Vavilov teaches that the legal and factual constraints bearing on a decision maker inform a reviewing court’s assessment of the reasonableness of a decision; the decision maker’s authorizing legislation is particularly relevant (at paras. 106, 108). Here, the exemption requests were submitted pursuant to subsection 56(1) of the CDSA, the Minister’s empowering legislation. In applying this provision, the Minister must "“consider whether denying an exemption would cause deprivations of life and security of the person that are not in accordance with the principles of fundamental justice”"; balancing the dual public health and public safety objectives of the CDSA guides the Minister in this analysis (PHS, at paras. 152-153).
[82] Subsection 56(1) endows the Minister with a broad discretion, underscored by the words "“opinion”" and "“public interest”" in the provision, to grant exemptions, echoing the Supreme Court of Canada in PHS (at para. 39):"56 (1) The Minister may, on any terms and conditions that the Minister considers necessary, exempt from the application of all or any of the provisions of this Act or the regulations any person or class of persons or any controlled substance or precursor or any class of either of them if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest."
"56 (1)"" S’il estime que des raisons d’intérêt public, notamment des raisons médicales ou scientifiques, le justifient, le ministre peut, aux conditions qu’il estime nécessaires, soustraire à l’application de tout ou partie de la présente loi ou de ses règlements toute personne ou catégorie de personnes, ou toute substance désignée ou tout précurseur, ou toute catégorie de ceux-ci." This language gives effect to the CDSA’s purpose of balancing the competing interests of public safety and public health (PHS, at para. 20).
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[95] Though, as I have already explained, neither the section 7 rights of the patient appellants or the HCPs are engaged, I see no principled reason why the words of McLachlin C.J.C. in PHS, that "“[t]he Minister cannot simply deny an application for a s. 56 exemption on the basis of ""policy simpliciter,” do not also apply from an administrative law perspective" (at para. 128). In 2020, the Minister was satisfied that subsection 56(1) exemption requests should be granted to HCPs for PSAP training purposes as a matter of public interest. It was incumbent on the Minister to explain why the nearly identical exemption requests at issue in this case were no longer in the public interest, but a clinical trial was. The Decisions do not provide this explanation, and thus failed to demonstrate the necessary transparency for a reasonable decision under Vavilov. I am not satisfied that the justificatory burden has been met, and would allow the appeal on this basis. . R. v. Campbell [exigent circumstances]
In R. v. Campbell (SCC, 2024) the Supreme Court of Canada dismissed a criminal appeal, this from a dismissal of an Ontario Court of Appeal, and that from a trial judge's finding that convicted the defendant "of trafficking and possession offences under the CDSA and sentenced him to a term of imprisonment".
The court considers when a warrantless search may be justified for 'exigent circumstances', here under the Controlled Drugs and Substances Act (CDSA):(a) Legal Principles
(i) Section 11(7) of the CDSA
[111] Section 11(1) of the CDSA authorizes a justice to issue a warrant to search a place for a controlled substance and to seize it. By exception, s. 11(7) authorizes a peace officer to search the place without a warrant, if the conditions for a warrant exist but “exigent circumstances” make it “impracticable” to obtain one. Section 11(1) and (7) provides:11 (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that
(a) a controlled substance or precursor in respect of which this Act has been contravened,
(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,
(c) offence-related property, or
(d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code
is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.
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(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. (ii) Two Requirements Under Section 11(7)
[112] In Paterson, Brown J. interpreted s. 11(7) as having two requirements. First, it must be shown that there were “exigent circumstances”, which “denot[e] not merely convenience, propitiousness or economy, but rather urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety” (para. 33 (emphasis in original)). Second, it must be shown that the conditions for obtaining a warrant existed, but that exigent circumstances “render[ed] it ‘impracticable’ to obtain a warrant”, meaning that it was “impossible in practice or unmanageable to obtain a warrant” (paras. 34 and 36; see also para. 28). Thus, the “exigent circumstances must be shown to cause impracticability” (para. 34). Justice Brown summarized the two requirements of s. 11(7) as follows:... for a warrantless entry to satisfy s. 11(7), the Crown must show that the entry was compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety. Further, this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives. [para. 37] (iii) The Evidentiary Threshold: Reasonable and Probable Grounds
[113] As urged by the Crown and the intervener Criminal Lawyers’ Association (Ontario), the police must have reasonable and probable grounds, rather than merely reasonable suspicion, for the claimed exigency under s. 11(7). The higher standard of reasonable and probable grounds helps ensure that the police are not relieved too readily of the obligation to obtain a warrant, given the privacy and liberty interests engaged when weighed against the needs of law enforcement (see R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, at pp. 240-43; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paras. 31 and 41; Tse, at para. 33; Fearon, at paras. 69-73; R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, at para. 43).
[114] The standard of reasonable and probable grounds requires the Crown to establish the reasonable probability of the claimed exigency, based on the experience and expertise of the police and the relevant facts before them; it does not require the Crown to establish the exigency on the balance of probabilities (see R. v. Beaver, 2022 SCC 54, at para. 72, discussing the standard of reasonable and probable grounds for a warrantless arrest). The Crown must show that the officers’ reasonable belief in the exigency was “objectively grounded in the circumstances of the case” (R. v. Pawar, 2020 BCCA 251, 393 C.C.C. (3d) 408, at para. 73; see also para. 79; Beaver, at para. 72; Hobeika, at para. 45). The subjective views of the police must have been objectively reasonable (Beaver, at para. 72; R. v. McCormack, 2000 BCCA 57, 133 B.C.A.C. 44, at para. 25). A vague, speculative, or general concern that delaying a search to obtain a warrant would risk the loss of evidence does not meet the exigency threshold (Pawar, at para. 72).
(iv) The Standard of Appellate Review
[115] A trial judge’s assessment of the evidence and findings of fact in applying s. 11(7) attract “substantial deference” on appeal (see R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 25; Hobeika, at para. 45). But whether the facts as found by the trial judge meet the legal standard for exigency under s. 11(7) is a question of law reviewable for correctness (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20; R. v. Dussault, 2022 SCC 16, [2022] 1 S.C.R. 306, at para. 26; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 60). As this Court has emphasized, “[w]hether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed ‘through the “lens of hindsight”’” (Cornell, at para. 23, quoting Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28, at para. 45). Courts should not second‑guess reasonable operational decisions taken by the police (Hobeika, at para. 52, citing Cornell, at paras. 24 and 36).
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[125] Finally, I accept that the police cannot devise an investigative strategy to create circumstances of exigency in order to proceed without a warrant. In some cases, “[i]f the police strategy creates the supposed urgency, the circumstances are not ‘exigent’, but are anticipated, if not planned for, by the police” (Hobeika, at para. 49, per Doherty J.A., citing R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at paras. 49-53 and 84-86, per La Forest J., dissenting, and R. v. Phoummasak, 2016 ONCA 46, 350 C.R.R. (2d) 370, at paras. 15-18). In this case, however, after Dew’s first four text messages, the police “were faced with an active, unfolding crime” (R. v. Webster, 2015 BCCA 286, 374 B.C.A.C. 129, at para. 90; see also R. v. Hunter, 2015 BCCA 428, 378 B.C.A.C. 165, at para. 30). As a result, the police responded to, but did not create, the situation of exigency.
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