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Police - Powers on Drug Overdose Scene. 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 usefully addressed police powers at a drug overdose scene: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. All other relevant powers remain available to the police when they respond to a situation falling within the scope of s. 4.1(2). I outline some of the important powers that may be available to the police.
[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 contaminated drugs that could pose further risks of overdose. As this Court said in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, “a police officer who attends at a medical emergency on a 911 call is not detaining the individuals he or she encounters. This is so even if the police, in taking control of the situation, effectively interfere with an individual’s freedom of movement” or question bystanders to “obtain information that may assist in their investigation” (paras. 36-37). Such questions may be more readily answered by people who have remained at the scene when they have a clear immunity from arrest for possession offences covered by s. 4.1(2).
[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 risk to public or individual safety against the liberty interests of members of the public at the scene (Aucoin, at para. 36, citing Clayton, at para. 31).
[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 and other items which were obtained by the commission of an offence and which are out in the open (Criminal Code, s. 489(2)). The police can also search a person to seize firearms and other weapons under the terms of s. 117.04(2) of the Criminal Code. Further, in MacDonald, this Court established that the police may conduct a safety search where it “is reasonably necessary to eliminate an imminent threat to the safety of the public or the police” (para. 40; see also para. 41). And where exigent circumstances are present and make it impracticable to obtain a warrant, the police can exercise their power of warrantless search under s. 487.11 of the Criminal Code and search for and seize controlled substances both in places and on people under s. 11(7) of the CDSA (see generally R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; R. v. Campbell, 2024 SCC 42). It would therefore be wrong to say that the police are prohibited from searching for weapons and drugs to protect themselves and the public at the scene of an overdose.
[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 that the individual “is connected to a particular crime” and that detention is necessary in the circumstances (Mann, at para. 45). Such an investigative detention permits a pat-down search incident to the detention where the police believe on reasonable grounds that their safety or the safety of the public is at risk (see paras. 40-44). The police may also exercise the power to arrest for a breach of the peace or the power to arrest for offences other than simple possession where an individual committed an indictable offence or is committing a criminal offence or where the police have reasonable grounds to believe that the individual committed or is about to commit an indictable offence (Criminal Code, ss. 31 and 495). These powers would encompass situations, for example, where an intoxicated individual attempts to drive away from the scene or where there are sufficient indicia of trafficking or other crimes to provide reasonable grounds for an arrest for those offences. Such arrests for other offences could also allow the police to conduct searches incident to arrest (see Caslake, at para. 19).
[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 when responding to an evolving situation (see Fleming, at para. 52; see also Stairs, at para. 74; MacDonald, at para. 32). In addition, some of those thresholds are higher than those required for an arrest under s. 495 and the corresponding search incident to arrest. For example, the powers to search and seize set out by s. 11(7) of the CDSA and s. 487.11 of the Criminal Code have a requirement of exigency. Similarly, in MacDonald, this Court recognized that the common law safety search power is available in specific circumstances involving “an imminent threat to the safety of the public or the police” (para. 41). These conditions are not necessarily required for warrantless arrests under s. 495. The Crown’s position that the power to arrest for possession is necessary for broad investigative and safety purposes runs counter to our jurisprudence. It could undermine and circumvent the controls for the exercise of other police powers for the purposes of investigation, such as those available in exigent circumstances or to address public safety concerns, contrary to the law’s careful delineation of these police powers. All police powers represent a careful calibration between personal liberty and the requirements of law enforcement. This appeal is not the appropriate place to significantly change police powers, undermining previously established conditions for their use.
[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 an appropriate appeal in which to consider the existence of this novel power, which is unnecessary to dispose of this appeal and was not raised by the parties or in the courts below. This Court has recognized limited search powers where necessary to address imminent threats to safety (see, e.g., MacDonald). But whether or not a search to remove controlled substances which may have resulted in an overdose could meet that threshold, or satisfy the requirements to recognize a new freestanding search and seizure power, is an issue to be determined in a different case, where those facts arise.
[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 where the reasonable grounds relate to an immune offence. No one submitted that s. 4.1(2) creates an immunity from investigative detention or limits the ability to conduct warrantless searches. Mr. Wilson does not challenge the lawfulness of his initial investigative detention, but rather his subsequent arrest for possession. The search that ultimately led to the evidence at issue here occurred further to that arrest which, as I explain below, was unlawful and justifies the exclusion of the evidence.
[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 to protect police and public safety.
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