Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. WILSON, 2023 SKCA 106, SEPTEMBER 8, 2023.

FACTS:  The accused was arrested and searched.  Drugs and a firearm was located.  The circumstances involved were descried by the Saskatchewan Court of Appeal in the following manner (at paragraph 3):       

The appellant, Paul Wilson, remained at the scene of a drug overdose. After the police arrived, Mr. Wilson and his companions were detained for the purposes of an investigation of possession of a controlled substance contrary to s. 4(1) of the CDSAShortly thereafter, they were arrested for that offence. Incidental to that arrest, the police conducted a search, which led to the discovery of firearms and evidence of drug trafficking. These discoveries resulted in Mr. Wilson being arrested a second time, this time for drug trafficking and firearm offences. He was eventually charged, and convicted, of several firearm offences

The accused appealed from conviction.  He argued that the arrest and search violated sections 8 and 9 of the Charter and should be excluded pursuant to section 24(2) of the Charter.  The accused based his position on the Good Samaritan Drug Overdose Act’s, SC 2017, addition of section 4.1(2) to the Controlled Drugs and Substances Act, which states:

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.

The Court of Appeal described the issue raised as being: “Can the police arrest someone found committing an offence when that person cannot be lawfully charged with it?”

HELD: The appeal was allowed and an acquittal entered. The Court of Appeal concluded that “because Mr. Wilson could not be charged with simple possession of a controlled substance, his first arrest was unlawful. This means that his rights under ss. 8 and 9 of the Charter of Rights and Freedoms were violated by the search that was incidental to it. I am also satisfied that the admission of the evidence obtained because of the unlawful search would, in the circumstances of this case, bring the administration of justice into disrepute. Without that evidence, the Crown has no case against Mr. Wilson. Accordingly, Mr. Wilson’s appeal must be allowed and an acquittal of the charges against him must be entered” (at paragraph 4).

Sections 8 and 9:

The Court of Appeal held that “there could have been no purpose for Mr. Wilson’s first arrest made after that investigative detention other than for the purpose of charging him with simple possession. Yet, this is prohibited by the Good Samaritan Act; Mr. Wilson could not be charged with that offence at that point as all the evidence supporting such a charge had been ‘obtained or discovered as a result of [he and his companions] having sought [medical] assistance’ for Ms. Delorme. From the moment of his first arrest and continuing through the time of the search of the truck, the discovery of the backpack and the search of its contents, the officers were in possession of no other evidence that would have justified charging him with simple possession. In the language of Grant and Le, the interference to Mr. Wilson’s liberty caused by his first arrest was unjustified” (at paragraph 46).

Section 24(2):

The Court of Appeal held that “the admission of the evidence in this case would undermine the goals and practical import of the Good Samaritan Act and create the spectre of risk to human life in future cases…Considering all of this, I am satisfied that the final balance of all factors in the circumstances of this case comes down in favour of excluding the evidence that was obtained in a manner that breached Mr. Wilson’s Charter rights” (at paragraphs 109 and 110).