R v Wilson, 2023 SKCA 106

Court of Appeal for Saskatchewan Docket: CACR3540 Citation: R v Wilson , 2023 SKCA 106 Date: 2023-09-08 Between: Paul Eric Wilson Appellant And His Majesty the King Respondent And John Howard Society of Saskatchewan Intervenor Before: Schwann, Leurer and Drennan JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr.

Justice Leurer In concurrence: The Honourable Madam Justice Schwann The Honourable Madam Justice Drennan On appeal from: Provincial Court (Sask), Saskatoon Appeal heard: February 17, 2023 Counsel: Thomas Hynes for the Appellant Erin Bartsch for the Respondent Pierre Hawkins for the Intervenor Leurer J.A. I. INTRODUCTION [ 1 ] Can the police arrest someone found committing an offence when that person cannot be lawfully charged with it? [ 2 ] In 2017, Parliament passed the Good Samaritan Drug Overdose Act , SC 2017, c 4 [ Good Samaritan Act ].

It amended the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ], to add new provisions intended to reduce deaths caused from drug overdoses.

Because of these amendments, s. 4.1(2) of the CDSA now provides as follows: Exemption — medical emergency 4.1(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.

Subsection 4(1) of the CDSA creates the offence of the simple possession of a controlled substance. [ 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 CDSA . Shortly 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. [ 4 ] As I will discuss, 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. II. BACKGROUND A. Outline of events [ 5 ] Shortly before 9:00 a.m. on the morning of September 10, 2020, Mr. Wilson was with three others – Cheryl Delorme, Natasha Kerfoot and James Mann – driving a truck in Vanscoy, Saskatchewan, when Ms.

Delorme slipped into unconsciousness after using fentanyl. One member of the group called 911 to report the drug overdose. Constable Heidi Jo Marshall from the Warman RCMP detachment was dispatched to the scene. [ 6 ] When Cst. Marshall arrived on the scene, EMS personnel were already attending to Ms. Delorme. Another woman – later determined to be Ms. Kerfoot – was at the driver’s side of the truck. Two men – later determined to be Mr. Wilson and Mr. Mann – were laying on their backs beneath the vehicle, apparently attempting to repair one of the tires.

Constable Marshall observed a clear bag containing a white substance, which appeared to be crystal meth, on the ground near the driver’s side of the truck, and she smelled the

odour of marijuana coming from the truck. [ 7 ] Following a conversation with the EMS supervisor and making additional observations, Cst. Marshall detained Mr. Wilson, Ms. Kerfoot and Mr. Mann for a CDSA investigation. Constable Marshall informed them of their right to counsel and provided a police warning. All three individuals asked to speak to a lawyer. [ 8 ] Constable Marshall next observed a streak of a white substance near Mr. Wilson’s foot, which had not been there before. She believed this substance to be crystal meth. She also saw Mr. Wilson fiddling with something in his pockets. She then questioned Mr.

Wilson about the substance. He removed a black case from his pocket, which contained syringes and other drug paraphernalia, but he denied that the substance on the ground was his. Mr. Wilson, Ms. Kerfoot and Mr. Mann were subsequently placed under arrest for simple possession of a controlled substance, being the offence under s. 4(1) of the CDSA . [ 9 ] Around this time, two other RCMP officers – Cst. Mavrick Hamon-Boulay and Cst. Sean Nave – arrived at the scene. As Cst. Marshall continued to observe Ms. Kerfoot, these officers placed Mr. Mann and Mr.

Wilson in their vehicle. [ 10 ] Constable Marshall then spoke with Ms. Delorme in the ambulance, placed her under arrest, and provided her with a police warning and advised her of her right to counsel. Ms. Delorme responded that she wanted to speak with a lawyer after she had received treatment at the hospital. She also requested that Cst. Marshall retrieve her belongings from the truck. [ 11 ] Incidental to the arrest for simple possession, the officers searched the truck and several bags located therein.

In one of the bags, a backpack, the officers located modified handguns as well as what they took to be parts for firearms and a quantity of ammunition. In other bags, the officers also discovered scales, baggies and needles that were evidence of drug trafficking. [ 12 ] Mr. Wilson, Mr. Mann and Ms. Kerfoot were arrested again, this time for trafficking and gun offences. The three individuals were then transported to police cells in Saskatoon. Ms. Delorme was not rearrested because she was already en route to the hospital. The truck was secured and towed to a secure compound.

A search warrant was obtained to continue the search of it. [ 13 ] Mr. Wilson was ultimately charged, under two informations, with possession of identity documents contrary to s. 402.2(1) of the Criminal Code [ Code ], fraudulent impersonation contrary to s. 403(1) (

a) of the Code , various firearm offences contrary to ss. 86(2) , 88 , 90 , 91(1) , 92(1) , 94 , 95(1) , and 99(3) of the Code , and breaching a firearm prohibition contrary to s. 117.01(1) of the Code . As it turned out, Mr. Wilson was not charged with possession of a controlled substance under s. 4(1) of the CDSA , despite that being the offence underlying his initial arrest, nor with any other offences under that Act. B. Trial decision s [ 14 ] At trial, Mr.

Wilson applied for a declaration that his ss. 8 , 9 and 10 Charter rights had been violated and for an order under s. 24(2) of the Charter excluding the evidence relating to the firearms found in the truck. A voir dire was held. It was agreed that the Crown would call all of its evidence on the voir dire , and that, subject to any rulings the trial judge made in connection with the disputed evidence, it would apply to have the evidence from the voir dire entered into the trial proper. [ 15 ] At the conclusion of the voir dire , Mr.

Wilson chose to limit his arguments to the suggestion that his right to be secure against unreasonable search or seizure (per s. 8 of the Charter ) and his right not to be arbitrarily detained or imprisoned (per s. 9 of the Charter ) were violated. All of his submissions were rooted in the proposition that his first arrest was arbitrary because s. 4.1(2) of the CDSA prevented him from being charged with committing the offence for which that arrest was made.

For its part, the Crown argued that s. 4.1(2) did not apply because it does not prevent the police from conducting an investigative detention or arresting people and because Mr. Wilson was never charged with the simple possession of a controlled substance. [ 16 ] The trial judge first considered the s. 8 Charter argument. He found that the search of the truck – which did not belong to Mr. Wilson – was fleeting and related to officer safety. Thus, Mr. Wilson had neither a personal privacy interest nor a property interest that was breached.

The trial judge then determined it to be “useful to discuss the reasonableness of the search itself”. He found that a “search of an accused person’s property on his possession at the time of arrest can be considered to be valid as a search incident to arrest, provided the purpose of the search is related to the reasons for the arrest”. The trial judge concluded as follows on the applicability of s. 8: In this case, the situation was fluid and changing. Constable Marshall first detained the three individuals for investigative purpose.

Once she saw a white powder which she believed was crystal meth, she arrested them for possession of a drug. Following the search of Ms. Delorme’s belongings, a large amount of drugs were discovered. At that point, the three individuals were arrested for possession for the purpose of trafficking offence. A further search incident to this arrest resulted in discovery of the firearms. Taking into account the totality of the evidence and the circumstances how they unfolded, I find that Mr. Wilsons’s

Section 8 Charter was not violated. In any event, even to find an error on this point, I do not believe that the evidence seized would be excluded following a Grant analysis. [ 17 ] The trial judge then turned to the argument under s. 9 of the Charter . He found that Cst. Marshall had the common law power to detain Mr. Wilson for investigative purposes and that his Charter rights were not breached because this detention was based on reasonable grounds and was not unduly long or egregious. [ 18 ] In the result, the trial judge concluded that Mr. Wilson’s Charter rights were not violated.

He added that, if he were to be found to be in error on this point, he did “not believe that the evidence seized would be excluded following a Grant analysis”, referring to the test for the exclusion of evidence under s. 24(2) of the Charter as outlined in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353. [ 19 ] The trial then continued. As part of it, the trial judge admitted into evidence a statement Mr. Wilson gave to the police, confirming that the backpack and the firearms contained in it were his.

An expert in the classification and analysis of firearms testified that two of the weapons, capable of firing .22 calibre bullets, were prohibited firearms within the meaning of s. 84 of the Code and that the ammunition found was also contrary to that provision. Mr. Wilson and Ms. Kerfoot also testified.

[ 20 ] After hearing all the evidence, the trial judge acquitted Mr. Wilson of the charges under s. 403(1) (

a) of the Code (identity fraud). A stay of proceedings was entered in connection with the charge under s. 91(1) (unauthorized possession of a firearm). Mr. Wilson was convicted on all other charges and received a global eight-year sentence, less credit for pre-sentence custody. III. ISSUES [ 21 ] Mr. Wilson initially appealed against his convictions and his sentence. In his factum, he abandoned his appeal from sentence, as well as all grounds pertaining to his conviction other than in connection with the alleged violation of his Charter rights. Considering this narrowing of the grounds of appeal, the outcome of his appeal is determined by the answers to these three questions: (

a) Why was Mr. Wilson first arrested? (

b) Were Mr. Wilson’s ss. 8 and 9 Charter rights violated? (

c) If Mr. Wilson’s Charter rights were violated, what consequences follow? IV. ANALYSIS A. The reason for Mr. Wilson’s first arrest [ 22 ] Mr. Wilson’s overarching submission is that his ss. 8 and 9 Charter rights were violated because his arrest was unlawful as (

a) the Good Samaritan Act prohibited the police from arresting him for the purposes of charging him with simple possession of a controlled substance, and (

b) the search leading to the discovery of the backpack and its contents was incidental to that prohibited arrest. [ 23 ] In the analysis portion of his judgment, the trial judge did not make an express finding in relation to the first arrest of Mr. Wilson. However, in the brief extract that I quoted earlier, he stated that following the search of Ms. Delorme’s belongings, and the discovery of a large amount of drugs, Mr. Wilson and his companions were arrested “for the purpose of [the] trafficking offence”. As I will discuss, I do not interpret this as a finding of fact in relation to the first arrest of Mr.

Wilson. However, if it were intended to be such, it is palpably wrong. [ 24 ] The applicable standard of review for Charter decisions depends on the issue. The underlying factual findings made by a trial judge are reviewable on the standard of palpable and overriding error: R v Côté , 2011 SCC 46 at para 44 , [2011] 3 SCR 215 .

Questions of law, including their application to the facts as found, are reviewable on the standard of correctness: R v Shepherd , 2009 SCC 35 at para 20 , [2009] 2 SCR 527 , and R v Le , 2019 SCC 34 at para 23 , [2019] 2 SCR 692 . [ 25 ] The first officer on the scene, and the first witness on the blended voir dire , was Cst. Marshall. She testified that, after she arrived and had made several preliminary observations, she had Mr. Wilson, Mr. Mann and Ms. Kerfoot come over to her. She described what occurred next: Q I’ll just have you continue -- so -- or pardon me.

So, was it at that point then that you asked them to come over? A Yes. Once I had a -- kind of a good visual of just how the three of them were acting and just kind of a general overview of the -- of the scene and the circumstances, I asked them to come to the police vehicle, at which point I had the three of them -- I had to get them to stand kind of far apart because I was the only member there. And I advised that they were under detention, they were being placed -- they were being detained for the purposes of a controlled substance and -- Controlled Drugs and Substances Act investigation.

Possession -- possession at the time . I gave them their rights to counsel and let them know that anything they said could be used as evidence. And it was shortly after that that my backup arrived on scene. My backup were two male members. And so I directed them to search each of the males. But prior to that, I believe it was right prior to them getting to the scene, Mr. Wilson -- there was a -- another white streak right beside him that was not there before. I photographed that as well. So that was on the back passenger’s side of my vehicle.

So, I had all three kind of lined up against the passenger’s side of my vehicle. It was Paul Wilson at the back. Natasha Kerfoot in the middle. And James Mann at the front. And there was a good probably three feet between all of them. And this white powder was dropped to the left and front of Paul Wilson. (Emphasis added) [ 26 ] After giving this evidence, Cst. Marshall reiterated some details and confirmed that she had arrived at the scene at 8:53 a.m., and, while she could not recall the exact time, she said that it was “pretty quickly” after that when she had placed the three under detention.

She went on to describe Mr. Wilson’s actions, the arrival of Cst. Hamon-Boulay and Cst. Nave, and the following events: Q Okay. All right. So, I’ll just have you continue with the two officers, additional officers arrive on scene, what takes place now?

A Okay. So, both male members come on scene. I update them as to what I have done, that I have detained the three of them for purposes of a CDSA investigation.

I then -- I went -- I asked them -- oh, after -- sorry, after the -- after I found the meth on the -- or the white substance on the ground by the police car, shortly after that I ended up arresting all three of them and I arrested them -- I believe the other members were on scene at the time of arrest or again, it might have just been right before they got -- because as soon as the male members got on scene, I requested that they perform a personal search, body search, on the two male -- on the two males, Mr. Wilson and Mr. Mann. I requested Constable Hamon-Boulay to search Mr. Wilson.

And I requested Constable Nave to search Mr. Mann. And while they were searching I was just watching Ms. Kerfoot, I did not search her at the same time. I waited until the males were placed in separate police vehicles and then I searched her. (Emphasis added) [ 27 ] Although at this point Cst. Marshall did not describe the offences for which the arrests occurred, she almost immediately clarified that it was for the offence created by s. 4(1) of the CDSA : Q Now, just going back to the arrest, so once you found the white substance, you arrested them. What information did you -- pardon me.

What information did you provide them at that time? A Okay. So I arrested them for possession of a controlled substance . Gave them -- officially gave them their rights to counsel, police warning and access to a lawyer.

I requested the two male members also -- I think it was Constable Hamon-Boulay that -- that ended up once the two were together, I can’t really speak to that, so I -- I won’t say who arrested who, but I did ask that they give secondary warnings just to make sure that they completely understood that they did not have to say anything. (Emphasis added) [ 28 ] Constable Marshall went on to describe the discovery of a “scale and a scoresheet”, the search of the truck and, with it, the uncovering of the backpack with its contents. She testified that it was only after this that Mr.

Wilson and the others were rearrested for trafficking and the weapon charges: So at that point in time we stopped the search and all -- all three, with the exception of Cheryl Delorme because she had now gone -- made her way to Saskatoon in the ambulance, the remaining three were arrested for possession for the purpose of trafficking a

Schedule 1 substance and also possession of prohibited firearms. They were all re-read, because their jeopardy had changed. They were given their rights to counsel again. They were given their police warning again. And I believe Constable Hamon-Boulay also read the secondary warning again. [ 29 ] Under cross-examination, Cst. Marshall reiterated that the first arrests were made for simple possession and that the search of the truck was incidental to that arrest. She also confirmed that it was only later that Mr.

Wilson and his companions were arrested a second time: this time, for possession for the purposes of trafficking and for firearm offences. [ 30 ] The second officer to testify was Cst. Hamon-Boulay. He testified that he was in a patrol car with Cst. Nave as a passenger when he was dispatched to the overdose. He arrived at the scene to find Cst. Marshall, EMS personnel and an ambulance. He recalled that there was a woman suffering a possible fentanyl overdose in the ambulance and that Cst.

Marshall had advised him that “she had already detained all three individuals outside at her vehicle for possession of a controlled substance”. [ 31 ] Constable Hamon-Boulay next explained that he had conducted a search of Mr. Wilson’s person, leading to the discovery in Mr. Wilson’s pocket of a knife and a small black container in which there was a substance that appeared to be drugs. Following this discovery, Cst. Hamon-Boulay placed Mr. Wilson in his police vehicle “to give him the Charter of Rights for possession of a controlled substance”, which he did.

Constable Hamon-Boulay then more thoroughly recounted the sequence of events: Q Now, you’re told to place Wilson in the police vehicle, you say you give Charter rights to him? A Yes. Q Okay. At this point, is he still being detained? A At this point he’s arrested, I arrested him for possession of a controlled substance . Q Okay. So just so that I’m clear on the timeline of events, you get on scene, you’re provided some information from Constable Marshall. She tells you all three are detained. A M-hm. Q So, at what point do you go from it being a detention to it going to an arrest?

A After the search is when Constable Marshall asked me to bring Paul Wilson to my police vehicle and arrest him for possession of a controlled substance because of the drugs found .

Q And what was the reason for the initial search? A It was incidental to arrest. Well, he was -- he was being detained, so for officer safety, for his safety and our safety we always search someone being detained before being handcuff -- or before being placed in a police vehicle I should say. Q Okay. And why is that a concern? You say that for officer safety you search an individual prior to placing them in the -- in a vehicle. Why is it a concern? That you would do that.

A Well, that’s -- that’s how we are teached (sic) in the academy, to always search a person before putting -- putting them in a police vehicle for weapon, especially weapons or any other kinds of evidence that they could carry on them. Q So as a result of that search he’s then arrested. A Yes. Q Okay. And do you take him to your police vehicle? A Yes. Q And so once he’s at your police vehicle, what information do you provide to him? A I read him his right -- I told him he was arrested for possession of a controlled substance . He said he understood. Provide him his right to counsel, which he also understood.

He requested to talk to the lawyer. I gave him his police caution and -- which he understood and I also gave him a secondary police caution also, which he also understood. (Emphasis added) [ 32 ] Following the giving of this evidence, Cst. Hamon-Boulay was asked about his contemporaneous notes, which he had consulted for the purposes of giving his testimony. He reviewed these notes to determine the precise time that he had placed Mr. Wilson under arrest.

Constable Hamon-Boulay then stated that it was following the first arrest that he “was asked by Constable Marshall to proceed with the search of the vehicle incidental to arrest”. His testimony was that this search uncovered the backpack and its contents. [ 33 ] Constable Hamon-Boulay was unequivocal that it was only following the discovery of the backpack and the other evidence that Mr. Wilson was rearrested for possession of trafficking and possession of prohibited firearms: Q And I’ll just have you continue from there?

A From there, I believe Constable Marshall advised that she had found what seems to be a drug, CDSA trafficking evidence, scales, baggies, needles, so she was telling me. So she asked me to read -- sorry, to arrest -- rearrest James Mann and Mr. Wilson here for possession of the purpose of trafficking and for possession of a prohibited firearm, which is what I proceeded to do. [ 34 ] The transcript discloses that after giving this testimony, Cst. Hamon-Boulay consulted his notes to confirm many points of detail, including the following: Q Okay. And then at this point in time did you rearrest Mr. Wilson?

A Yes, at 10:37 I arrested Mr. Wilson for -- under arrest for possession of the purpose of trafficking and possession of a prohibited firearm. Do you understand? Yeah. Right to counsel, do you understand? Yeah. Do you wish to contact a lawyer now? Yeah. Police caution, do you understand? Yeah. The second police caution, do you understand? Yeah. [ 35 ] Constable Nave said little about the arrests in his testimony given under direct examination, other than to say that, when he arrived with Cst. Hamon-Boulay, he was told by Cst. Marshall that Mr. Wilson and the others “were arrested for possession”.

He described later events, including the discovery of drugs and that “Constable Hamon-Boulay advised [him] that he had found a couple of handguns in the -- in his search of the vehicle”. He was not questioned about the second arrest. [ 36 ] In my view, it is impossible to read the testimony of these officers in any way other than that the search of Mr. Wilson’s backpack was incidental to his arrest for simple possession of a controlled substance. He was only arrested on the other charges after the backpack was searched and its contents revealed. [ 37 ] The trial judge recognized this sequence of events in a

summary of Cst. Hamon-Boulay’s evidence, which he narrated, before making the statement that Mr. Wilson and his companions “were arrested for possession for the purpose of [the] trafficking offence”, including by quoting the precise time when Mr. Wilson was arrested for the second time. In the context that the trial judge’s recitation of this evidence provides, I do not interpret his statement that Mr. Wilson and his companions were arrested “for the purpose of [the] trafficking offence” as amounting to a finding of fact in relation to the first arrest of Mr. Wilson.

However, if it were intended to be such, it is the product of a palpable misunderstanding of the evidence. [ 38 ] Based on the evidence before the trial judge, the only conclusions open to him were that (

a) Mr. Wilson was first detained for the purposes of a police investigation into crimes under the CDSA ; (

b) at the time of the police search of the truck, the discovery of the backpack, and the search of its contents, Mr. Wilson and his companions were under arrest for simple possession of a controlled substance, contrary to s. 4(1) of the CDSA ; (

c) the search of the truck and the search of Mr. Wilson’s backpack, which resulted in the discovery of the firearms, were incidental to that first arrest; and (

d) it was only later that Mr. Wilson was arrested a second time – “rearrested”, in the words of one of the officers – for the offences for which he was later charged. I add only one final footnote to this. In the trial judge’s subsequent ruling on the voluntariness of Mr. Wilson’s statement, he clearly evinced an understanding of these four facts.

B. The violation of Mr. Wilson’s Charter rights [ 39 ] The Charter guarantees the following rights: Search or seizure 8 Everyone has the right to be secure against unreasonable search or seizure. Detention or imprisonment 9 Everyone has the right not to be arbitrarily detained or imprisoned. [ 40 ] In its relevant parts, the CDSA provides as follows: Possession of substance 4

(1) Except as authorized under the regulations, no person shall possess a substance included in

Schedule I, II or III. … Punishment

(3) Every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in

Schedule I (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding seven years; or (

b) is guilty of an offence punishable on

summary conviction and liable (

i) for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and (ii) for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both. … Definition of medical emergency 4.1(1) For the purposes of this section, medical emergency means 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. Exemption — medical emergency

(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. Exemption — persons 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. Exemption — evidence

(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 assistance, is to be charged with an offence concerning a violation of any condition of a pre-trial release or probation order relating to 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. Deeming

(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 for their, or another person’s, medical emergency, or as a result of having been at the scene on the arrival of the assistance, is deemed not to be violated. [ 41 ] Mr. Wilson argues that police powers of arrest and detention “require an underlying nexus to criminal activity that arises from the facts presented to police officers”.

He says that this nexus is absent here because s. 4.1 of the CDSA creates an exemption from criminal liability for simple possession charges given, as the

section specifically provides, someone in his position cannot be “charged or convicted of an offence under subsection 4(1)”. In short, he submits that “if a person cannot be charged or convicted of an offence, then there is no underlying crime being committed”. [ 42 ] Mr. Wilson also invites this Court to conclude that a finding that the police have the power to arrest for simple possession in cases like his would frustrate the purpose for which Parliament enacted the Good Samaritan Act .

This, he argues, is because it would discourage people in similar situations from reaching out for medical and police assistance. Mr. Wilson is joined in the latter submission by the intervenor, John Howard Society of Saskatchewan.

[ 43 ] I begin my consideration of Mr. Wilson’s arguments with some first principles. Generally, a search or seizure is reasonable if it is in accordance with the law and is unreasonable if it is not. In this case, the search leading to the discovery of Mr. Wilson’s backpack was incidental to his arrest. Both Mr. Wilson and the Crown argued their cases in this Court on the basis that the reasonableness of this search, and hence the answer to the question as to whether Mr.

Wilson’s s. 8 Charter rights were breached, is determined by the lawfulness of his arrest for simple possession. [ 44 ] The purpose of s. 9, broadly stated, “is to protect individual liberty from unjustified state interference” (emphasis added, Grant at para 20 , see also Le at para 152). A “lawful arrest or detention is not arbitrary, and does not infringe s. 9 of the Charter , unless the law authorizing the arrest or detention is itself arbitrary” ( R v Tim , 2022 SCC 12 at para 22 , 412 CCC (3d) 147, referencing Grant at para 54 and R v Mann , 2004 SCC 52 at para 20 , [2004] 3 SCR 59).

Conversely, “an unlawful arrest or detention is necessarily arbitrary and infringes s. 9 of the Charter ” ( Tim at para 22 , referencing Grant at para 54 and R v Loewen , 2011 SCC 21 at para 3 , [2011] 2 SCR 167). [ 45 ] In keeping with this direction, if Mr. Wilson’s arrest for simple possession was unlawful, then there was a breach of his s. 9 Charter rights. As I have already noted, in that circumstance, there would also have been a breach of s. 8, because the search that led to the discovery of the backpack and its contents was incidental to his arrest.

Summing up these points, the determination as to whether Mr. Wilson’s ss. 8 and 9 Charter rights were violated turns on the answer to the question of whether Mr. Wilson’s arrest for simple possession of a controlled substance was lawful. [ 46 ] Prior to Mr. Wilson’s first arrest, he and his companions had been detained for investigative purposes. While on other facts it may be different, as I will later discuss, in the circumstances of this case, 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. [ 47 ] Nonetheless, the Crown argues otherwise. It offers several submissions. [ 48 ] The Crown’s first suggestion is that s. 4.1(2) of the CDSA is not engaged on the facts of this case. In this regard, it says that, because Mr. Wilson was never charged, let alone convicted, of the offence of simple possession, s. 4.1(2) has no application at all. I am unpersuaded by this argument for the simple reason that the only purpose for Mr.

Wilson’s arrest was to charge him with this offence – an action that was, based on the facts then known to the officers – prohibited by s. 4.1(2) . I will expand on this conclusion later in these reasons. [ 49 ] The Crown’s second submission, and the one that it placed most emphasis on, is that Mr. Wilson’s arrest was authorized under s. 495(1) of the Code . That provision states as follows: Arrest without warrant by peace officer 495(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; (

b) a person whom he finds committing a criminal offence; or (

c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in

Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found. [ 50 ] Continuing, the Crown points out that, because a charge under s. 4(1) of the CDSA can proceed by indictment, and Mr. Wilson was found committing it, the officers were entitled to arrest him under s. 495(1) (b). In offering this submission, the Crown says that s. 4.1(2) of the CDSA has no impact on the power of arrest at all. Indeed, it points out that arrest is not mentioned in the provision, which it says would be necessary to interfere with the powers of arrest created by s. 495(1) .

Based on all this, the Crown says that Mr. Wilson’s first arrest was authorized by law and, hence, was justified and therefore not arbitrary. [ 51 ] In anticipation of this wing of the Crown’s argument, one of Mr. Wilson’s submissions is that s. 4.1(2) of the CDSA should be seen as modifying the offence that is created by s. 4(1) . In other words, Mr. Wilson argues that, where s. 4.1(2) applies, the person found at the scene of the overdose is not committing an offence at all, hence rendering s. 495(1) itself inapplicable. I cannot agree with Mr.

Wilson on this narrow point. [ 52 ] The grammatical and ordinary sense of the words used in s. 4.1(2) is that the act of simple possession remains an offence, although one which is immune either to prosecution or to conviction in the circumstances in which it applies. To repeat, s. 4.1(2) says that, when applicable, no person “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” (emphasis added).

As I read these words, Parliament has simply exempted a person who has sought assistance or remained at an overdose scene from being “charged or convicted” for simple possession. This does not mean that an offence was not committed.

This is made clear by the direction found in s. 4.1(2) that it is only “if the evidence in support of that offence was obtained or discovered” because the person had sought the assistance or remained at the scene that no charge may be laid or conviction entered. [ 53 ] I would add that, where Parliament has wanted to remove certain conduct from the scope of what would otherwise amount to a crime, it has done so with clear language.

By way of example, under s. 353.1(1) of the Code , it is an offence for anyone, without lawful excuse, to alter, remove or obliterate a vehicle identification number on a motor vehicle, yet, per subsection 353.1(3), “it is not an offence” to do so “during regular maintenance or any repair or other work done on the vehicle for a legitimate purpose, including a modification of the vehicle”. The same point can be drawn from s. 382.1. Under subsection (1) of that provision, Parliament has made it an offence to

engage in several enumerated activities that are classified as being insider trading, but subsection (3) states that “an act is not an offence”if those actions are authorized or required or are not prohibited by any federal or provincial Act or regulation. Likewise, while homicide isgenerally defined in the Code as being committed when a person causes, directly or indirectly, the death of a human being, s. 222(3)provides that homicide “that is not culpable is not an offence”.

Although these examples are not from the CDSA, they illustrate thatParliament is capable of clearly identifying where it intends not only that charges should not be laid in certain factual circumstances butthat those facts are removed from the description of what would otherwise constitute a crime. [54] For these reasons, I agree with the Crown that it was proper for the officers to understand that Mr. Wilson was foundcommitting a crime. However, as I will next discuss, I cannot agree with the Crown’s further submission that this nonetheless justified hisarrest under s. 495(1)(

b) of the Code. [55] The Crown’s reliance on s. 495(1)(

b) ignores that all state powers, including powers that are given by statute, are bounded bythe principle that they are to be exercised only for the purposes for which they are given. The most commonly cited authority for thisproposition is Roncarelli v Duplessis, (SCC), [1959] SCR 121. While that case involved a challenge to a decision taken inbad faith, the principle it establishes is not so narrow.

By way of example only, in R v Envirogun, 2023 SKCA 51, Richards C.J.S. notedthat state powers “must be exercised in good faith and in ways that serve the purpose of the statute that confers authority” (emphasisadded, at para 59).

See also Brown v Canada (Citizenship and Immigration), 2020 FCA 130 at para 40, 448 DLR (4th) 714, leave toappeal to SCC refused, ; Nelles v Ontario, (SCC), [1989] 2 SCR 170 at 209; R v Allain, [1985] BCJNo 309 (QL) (Sup Ct) at paras 10–12; and R v Thomas, 2008 ONCJ 449 (WL) at para 16. [56] In this case, as I have already mentioned, on the evidence, the only purpose for the first arrest of Mr. Wilson was to charge himunder s. 4(1) of the CDSA.

However, this was an action that Parliament has prohibited by s. 4.1(2), as the evidence in support of the arrestwas all obtained or discovered because emergency assistance had been called for Ms. Delorme, and Mr. Wilson and his companions hadstayed at the scene of her overdose. [57] Yet, the Crown resists this conclusion. It offers two justifications for the police to have arrested Mr. Wilson. However, on thefacts of this case, at least, neither of these reasons is compelling. [58] In oral argument, the Crown stated that the arrest of Mr.

Wilson was justified because, otherwise, the police would have had noauthority to have taken the drugs that were in plain view off of the streets. However, not only is there no evidence that this was thepurpose for the first arrest, but it is also contradicted by the fact that, at the point of his first arrest, Mr. Wilson and his companions hadalready been identified and detained for investigative purposes and the drugs that were in plain sight had been seized. [59] This seizure was lawful under s. 489(2) of the Code.

Pursuant to that provision, an officer has the power to seize, without awarrant, anything that they believe, on reasonable grounds, (a) ”has been obtained by the commission of an offence”; (b) “has been used inthe commission of an offence”; or (c) “will afford evidence in respect of an offence” under the Code or other Act of Parliament. One of theimportant implications of my earlier conclusion that s. 4.1(2) of the CDSA does not affect the fact that the officers had reasonable groundsto believe that the offence of possession had occurred is that s. 489(2) continued to apply.

Therefore, the first arrest was not required totake the drugs off the streets. [60] In oral argument, the Crown also suggested that the arrest might have been justified to prevent the continuation or repetition ofthe offence or the commission of another offence. It said that, if the police had not arrested Mr. Wilson, he could simply have demandedback the drugs that the police had seized and left the scene. Once again, there is no evidence to support this as the reason for the firstarrest. In any event, I do not accept that Mr.

Wilson could have demanded a return of the drugs, given the police power to seize themunder s. 489(2) of the Code. In the latter regard, I agree with Mr. Wilson when he says that, if he had regained possession of the drugs,there would have been a different and completely legitimate reason for him to have been arrested. This reason would flow from the factthat he would then not have been in possession of the drugs because he had stayed at the scene. Accordingly, he would not have enjoyedthe protection of s. 4.1(2) of the CDSA. Therefore, Mr.

Wilson’s arrest for simple possession cannot be justified to prevent him fromcommitting another crime. [61] In short, the reasons that were given for why Mr. Wilson might have been arrested not only represent post facto justificationsbut are unpersuasive. As I have earlier stated, while on other facts it may be different, here, no reason existed for the first arrest ofMr. Wilson other than to have charged him with simple possession of a controlled substance. I would re-emphasize that Parliament hasprohibited that very action on the facts of this case. [62] I am left to conclude from all of this that Mr.

Wilson’s first arrest was unlawful. It follows that his rights under both ss. 8 and 9of the Charter were violated. [63] I am fortified in this conclusion by Tim. It is a case that has many similarities to this one. [64] In that case, Sokha Tim was driving in Calgary when he collided with a roadside sign and had to pull over. A police officerfound Mr. Tim standing beside his damaged car and asked him for identification and proof of insurance. When Mr.

Tim went to retrievethese items from his car, the officer saw him try to hide a yellow pill, which the officer correctly identified as the prescription druggabapentin. However, the officer held the incorrect belief that this drug was a controlled substance under the CDSA and arrested Mr. Timfor simple possession. After conducting a pat-down search and a search of the car incident to arrest, the officer found fentanyl, otherillegal drugs, ammunition and a loaded handgun. [65] At trial, Mr. Tim argued that these police actions were a breach of his ss. 8 and 9 Charter rights.

A voir dire was held; theresult of which was to dismiss Mr. Tim’s Charter challenge. Mr. Tim later pleaded guilty but appealed from the voir dire decision. TheCourt of Appeal of Alberta agreed with the trial judge that the officer’s mistake of law regarding whether the possession of gabapentinwas illegal did not invalidate the arrest. On further appeal, the Supreme Court reversed this finding and concluded that the arrest wasunlawful and thus arbitrary and a breach of s. 9 of the Charter. [66] The Supreme Court’s focus in Tim was on the question of whether an arrest based on a mistake of law is unlawful.

Specifically,

the Supreme Court asked, “Can a police officer arrest someone whom they believe has committed an offence, even if the facts relied on bythe arresting officer, if true, do not involve unlawful conduct?” (at para 26).

Justice Jamal, for the majority, expounded why the answer tothat question was a resounding “No”, and therefore the arrest was contrary to s. 9 of the Charter: [30] Compelling considerations of principle and legal policy confirm that a lawful arrest cannot be based on a mistake of law — that is,when the officer knows the facts and erroneously concludes that they amount to an offence, when, as a matter of law, they do not.Allowing the police to arrest someone based on what they believe the law is — rather than based on what the law actually is — woulddramatically expand police powers at the expense of civil liberties.

This would leave people at the mercy of what particular police officershappen to understand the law to be and would create disincentives for the police to know the law. Canadians rightly expect the police tofollow the law, which requires the police to know the law.

This Court has affirmed that “[w]hile police are not expected to engage injudicial reflection on conflicting precedents, they are rightly expected to know what the law is” (Grant, at para. 133; Le, at para. 149).Côté J. helpfully encapsulated the relevant considerations of principle and legal policy in Kosoian [2018 SCC 59], at para. 6: In a free and democratic society, police officers may interfere with the exercise of individual freedoms only to the extent provided for bylaw.

Every person can therefore legitimately expect that police officers who deal with him or her will comply with the law in force, whichnecessarily requires them to know the statutes, regulations and by-laws they are called upon to enforce. Police officers are thus obliged tohave an adequate knowledge and understanding of the statutes, regulations and by-laws they have to enforce. (Emphasis added) [67] Justice Jamal also addressed the Crown’s submission that the arrest was justified because possession of a controlled substancewas an offence known at law: [41] I do not accept this submission.

The officer arrested the appellant for possession of gabapentin specifically. The officer knew thefacts — he correctly identified the pill as gabapentin — but mistakenly concluded that possession of gabapentin was an offence, when, inlaw, it was not. That brings this case squarely within Frey [ (SCC), [1950] SCR 517] and Kosoian. It makes no differencewhether the mistake of law involves a non-existent offence, or an existing offence that could not be engaged on the facts, even if true,relied on by the officer. In both instances, the mistake of law precludes a lawful arrest.

The courts below erred in concluding otherwise. (Emphasis added) [68] The Crown seeks to distinguish Tim by pointing out that it involved a legal error by the officer as to whether the drugs theofficer saw were proscribed under the CDSA. This distinction exists. However, I see this as less important than the key point I take fromthe case, which is that allowing the police to arrest someone based on what they believe the law is – rather than based on what the lawactually is – would create an unjustified expansion of police powers at the expense of civil liberties.

As I will later discuss, in this case, theevidence does not disclose whether the officers arrested Mr. Wilson and his companions for simple possession because they were unawareof s. 4.1(2) or because they misunderstood its legal effect. Either way, underpinning the arrest was a legal error on the part of the arrestingofficers. [69] For all these reasons, in my respectful view, the trial judge erred in law when he concluded that Mr. Wilson’s ss. 8 and 9Charter rights were not violated. C. Admission of the evidence will bring the administration of justice intodisrepute 1.

Subsidiary issues [70] Section 24(2) of the Charter directs that where “a court concludes that evidence was obtained in a manner that infringed ordenied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.

While s. 24(2) is expressedin mandatory language (the evidence “shall be excluded”, emphasis added), the onus falls on the rights’ claimant to show both that theevidence was obtained in a manner that infringed or denied their rights and that the admission of that evidence would bring theadministration of justice into disrepute. See R v Fearon, 2014 SCC 77 at para 89, [2014] 3 SCR 621, and Tim at para 75. [71] As I have noted, the trial judge stated that if he were mistaken in his conclusion that Mr.

Wilson’s ss. 8 and 9 Charter rightshad not been violated, he did “not believe that the evidence seized would be excluded following a Grant analysis”. The trial judge offeredno explanation or reasons for this conclusion. In any event, no judicial deference is owed to this alternative conclusion. Instead, this Courtmust “consider that issue afresh” (Tim at para 72, referencing Grant at para 129, Le at para 138 and R v Paterson, 2017 SCC 15 atpara 42, [2017] 1 SCR 202). [72] Mr. Wilson submits that this Court is able to make the necessary determinations under s. 24(2).

He argues that the officers’discovery of the guns was a product of his unlawful arrest. He says that the admission of this evidence, and his subsequent confessionmade only because of it, would bring the administration of justice into disrepute. Finally, he argues that without this evidence the basis forhis convictions disappears. [73] The Crown did not address s. 24(2) in its factum. In its oral submissions, it did not suggest that this Court is not positioned todecide the s. 24(2) issue, and it also did not directly contest Mr.

Wilson’s assertion that the evidence of the guns and his confession wereobtained in a manner that breached his Charter rights. However, it also did not expressly concede the latter of these points. Its submissionswere focused on the proposition that the admission of this evidence would not bring the administration of justice into disrepute. [74] Considering the positions taken by the parties, the admissibility question is answered by two inquiries: (

a) Was the evidence ofthe handgun and the confession obtained in a manner that breached Mr. Wilson’s Charter rights? and (

b) Would the admission of theevidence bring the administration of justice into disrepute?

2. The evidence was obtained in a manner that breached Mr. Wilson’s Charter rights [75] Tim provides a helpful

summary of the law as to when evidence has been obtained in a manner that has breached an accused’sCharter rights: [78] This Court has provided guidance as to when evidence is “obtained in a manner” that breached an accused’s Charter rights so as totrigger s. 24(2): 1. The courts take “a purposive and generous approach” to whether evidence was “obtained in a manner” that breached an accused’sCharter rights (R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38). 2.

The “entire chain of events” involving the Charter breach and the impugned evidence should be examined (R. v. Strachan, (SCC), [1988] 2 S.C.R. 980, at pp. 1005–6). 3. ”Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course ofconduct” (Mack, at para. 38; see also Wittwer, at para. 21). 4. The connection between the Charter breach and the impugned evidence can be “temporal, contextual, causal or a combination of thethree” (Wittwer, at para. 21, quoting R. v. Plaha (2004), (ON CA), 189 O.A.C. 376, at para. 45).

A causal connectionis not required (Wittwer, at para. 21; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 83; Strachan, at pp. 1000–1002). 5. A remote or tenuous connection between the Charter breach and the impugned evidence will not suffice to trigger s. 24(2) (Mack, atpara. 38; Wittwer, at para. 21; R. v. Goldhart, (SCC), [1996] 2 S.C.R. 463, at para. 40; Strachan, at pp. 1005–6). Suchsituations should be dealt with on a case by case basis. There is “no hard and fast rule for determining when evidence obtained followingthe infringement of a Charter right becomes too remote” (Strachan, at p. 1006).

See also R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72; R. v. Lichtenwald, 2020 SKCA 70, 388 C.C.C. (3d) 377, at para. 57;R. v. Reilly, 2020 BCCA 369, 397 C.C.C. (3d) 219, at paras. 75–76, aff’d 2021 SCC 38; and Hill, Tanovich and Strezos [(Rel 1, February2022) McWilliams’ Canadian Criminal Evidence], at §19:22. [76] Here, the connection between Mr. Wilson’s unlawful arrest and the discovery of the guns is direct and unbroken. Mr. Wilson’slater statement was also only obtained because of the discovery of the guns.

In the circumstances of this case, at least, there is no room toconclude that any sort of fresh start would justify the admission of the confession: R v Beaver, 2022 SCC 54 at para 99, 475 DLR (4th)575. Mr. Wilson’s statement, like the evidence of the guns, was, therefore, obtained in a manner that breached his Charter rights. Whilethe Crown did not concede the point, it did not suggest otherwise. 3. The Grant analysis [77] The decisive issue in connection with s. 24(2) is whether the admission of the evidence would bring the administration ofjustice into disrepute.

In Grant at paragraph 71, the Supreme Court outlined the lines of inquiry that inform the analysis of this issue:(

a) the seriousness of the Charter-infringing state conduct; (

b) the impact of that violation on the accused’s Charter-protected interests;and (

c) society’s interest in having the charges adjudicated on their merits. a. Seriousness of the Charter-infringing state conduct [78] The first line of inquiry, and the focus of most of the disagreement between the Crown and Mr. Wilson in this Court, considersthe seriousness of the Charter-infringing state conduct.

The Court’s concern is whether the admission of the evidence would send “amessage to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation fromthe rule of law by failing to dissociate themselves from the fruits of that unlawful conduct” (Grant at para 72).

For this reason, the “moresevere or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves fromthat conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the ruleof law” (at para 72). In Tim, Jamal J. summarized the required analysis this way: [82] The first line of inquiry under s. 24(2) considers the seriousness of the Charter-infringing state conduct. It asks whether the policeengaged in misconduct from which the court should dissociate itself (see Grant, at para. 72).

The concern of this inquiry is “not to punishthe police”, but rather to “preserve public confidence in the rule of law and its processes” (Grant, at para. 73). The court must situate theCharter-infringing conduct on a “spectrum” or a “scale of culpability” (Grant, at para. 74; Paterson, at para. 43; Le, at para. 143). At themore serious end of the culpability scale are wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringingconduct, or a major departure from Charter standards.

Courts should dissociate themselves from such conduct because it risks bringing theadministration of justice into disrepute. At the less serious end of the culpability scale are Charter breaches that are inadvertent, technical,or minor, or which reflect an understandable mistake. Such circumstances minimally undermine public confidence in the rule of law, andthus dissociation is much less of a concern (see Grant, at para. 74; Le, at para. 143; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, atpara. 22). [79] Mr. Wilson’s argument is that the state misconduct was grave.

He describes the officers’ actions as being “seriously reckless”.He notes that there was no evidence that the officers even turned their minds to the Good Samaritan Act amendments to the CDSA andwhether these amended provisions should have influenced their actions.

He invites this Court to conclude that the Good Samaritan Actcontains Parliament’s intent that the police and prosecutorial authorities address the overdose crisis by handling incidents of simplepossession in a different way, but, in this case, the officers carried on as if it were business as usual. [80] For its part, the Crown invites this Court to place the officers’ conduct at the less serious end of the spectrum. It argues that theofficers did not ignore s. 4.1(2) of the CDSA. It submits that this is evidenced by the fact that neither Mr. Wilson nor his companions werecharged with an offence under s. 4(1).

While resisting the conclusion that s. 4.1(2) had an impact on the police power of arrest at all, the

Crown says that, even viewed in the most unfavourable light, the officers may have misunderstood the law, but they did so without the benefit of any prior judicial

interpretation of s. 4.1(2). Therefore, the Crown’s argument is that the mistake by the officers was an innocent one. [ 81 ] The weakness in the Crown’s submissions on this point is that it depends on this Court concluding that the officers thought that s. 4.1(2) did not prevent the first arrests. However, the officers did not provide this testimony. Instead, we are invited to infer this from the fact that no charges were laid under s. 4(1) . However, it cannot be forgotten that the informations were sworn fully a day after the arrests were made. The evidence does not disclose if the officers first arrested Mr.

Wilson and his companions for simple possession because they were unaware of s. 4.1(2) at the time of the arrest, because they did not turn their minds to the provision, or because they thought it prevented charging – but not arresting – people in Mr. Wilson’s circumstances. [ 82 ] The absence of evidence from the officers explaining why they felt they had the power to arrest Mr. Wilson for simple possession, notwithstanding that he could not be charged with that offence, stands in stark contrast to the evidence that was led in Tim .

In that case, the testimony from the arresting officers allowed the Supreme Court to conclude that the officer had committed an honest mistake of law. This was foundational to the Supreme Court’s determination that the case involved a less serious violation of Mr. Tim’s rights. In this regard, Jamal J. observed as follows: [84] First, the Charter -infringing state conduct underlying the appellant’s arrest and the searches incident to arrest was inadvertent, not deliberate, and reflected an honest mistake about whether gabapentin was one of the hundreds of controlled substances listed under the CDSA .

While police officers are expected to know the law that they are enforcing, the arresting officer here had been on the force for only three years. In that brief time, he had seen gabapentin, which he knew by the street name “gabby”, trafficked with controlled substances such as fentanyl and methamphetamine. His experience was consistent with the jurisprudence that often mentions gabapentin alongside other controlled substances, even though it is a prescription drug (see above, at para. 7).

In short, a relatively inexperienced officer arrested the appellant based on an honest mistake (see Fearon , at para. 95 ). [ 83 ] In this case, the Crown did not lead the kind of evidence that allows a similar conclusion to be drawn. More specifically, none of the officers testified that they thought that s. 4.1(2) did not prevent the arrests. They did not even testify that they were aware of the prohibition it created.

This void in the evidence exists even though the Charter issues were clearly at play before the trial judge. [ 84 ] By the same token, the evidence does not allow a conclusion to be drawn as to whether the officer consciously ignored s. 4.1(2) . However, this does not permit this Court to conclude that the breach of Mr. Wilson’s Charter rights was a minor one. This is discussed in Le : [147] But an absence of bad faith does not equate to a positive finding of good faith and the officers were not acting in “good faith” simply because they were not engaged in racial profiling.

Rather, for state misconduct to be excused as a “good faith” (and, therefore, minor) infringement of Charter rights, the state must show that the police “conducted themselves in [a] manner … consistent with what they subjectively, reasonably, and non-negligently believe[d] to be the law” ( R. v. Washington , 2007 BCCA 540 , 248 B.C.A.C. 65, at para. 78 ). See also Tim at para 85 . [ 85 ] Police officers who exercise the power of arrest can be expected to act with restraint and such careful assessment as the circumstances allow. Given that Mr.

Wilson had been detained for investigative purposes, the officers had sufficient time to reflect on whether he could be charged with simple possession. There was only one answer to that question: Mr. Wilson could not be charged with that offence. With that answer in hand, the officers could then have asked themselves what purpose would be served by arresting him. As for that question, for the reasons I have already given, it should have been obvious to the officers that no lawful purpose would be served by Mr. Wilson’s arrest.

Considering these two facts, it was not reasonable for the officers to have believed that they had the power to arrest Mr. Wilson. [ 86 ] An evaluation of the seriousness of the state conduct here must also account for the purpose for which the Good Samaritan Act was passed. Much time was spent in argument about the relevance of parts of the Parliamentary debate as recorded in Hansard .

However, I heard no dissent from the view expressed by LeBlanc J.A. in R v Aube , 2022 NBCA 65 , when he described “the objective sought by Parliament with this enactment” to be “to remove a barrier to medical help being given to a person experiencing an overdose, and to protect those assisting that person, without fear of being prosecuted for either simple possession or using drugs at the same time” (at para 66). I accept Mr. Wilson’s submission that, whatever their motivation, the officers’ actions in this case ran contrary to this stated objective.

The reasons why finding that the police are entitled to arrest a person who stays at an overdose scene for simple possession would be contrary to the purpose of the Good Samaritan Act are obvious. Simply put, if drug users witnessing an overdose do not know or trust that the Good Samaritan Act will protect them from arrest, their fear of consequences for simple possession will reduce their likelihood of calling 911. [ 87 ] Although Mr. Wilson invited us to conclude otherwise, there is no evidence of any systemic misconduct. On the other hand, it was not only Mr.

Wilson’s rights that were violated, but also those of his companions. [ 88 ] For all these reasons, I cannot accept the Crown’s characterization of the state misconduct as being minor. On the evidence in this case, it is best described as being moderately serious. b. Impact on Mr.

Wilson’s Charter -protected interests [ 89 ] The second line of inquiry under s. 24(2) “focusses on the seriousness of the impact of the Charter breach on the Charter - protected interests of the accused ”; it “calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed” ( Grant at para 76 ). See also Le at para 151 and Tim at para 90 . Again, the Court must place this on a spectrum.

Justice Jamal discussed it this way in Tim : [ 90 ] … The greater the impact on Charter -protected interests, the greater the risk that admission of the evidence would bring the

administration of justice into disrepute. This is because “admission of the evidence may signal to the public that Charter rights, howeverhigh-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute”(Grant, at para. 76; see also Le, at para. 151; Harrison [2009 SCC 34], at para. 28). [90] In this case, prior to his arrest, Mr. Wilson had been subject to an investigative detention. This “mitigates the impact of hisarbitrary arrest to some extent” (at para 92). Also, the period of the arrest for possession was brief.

However, the mitigating effect of thatfact is muted because the first arrest ended only when the poisoned-fruit evidence was obtained, and the second arrest was made. [91] The latter point leads to the important fact that Mr. Wilson’s privacy rights were violated because of his arbitrary arrest and theunlawful search that was conducted incidental to it. In saying this, I accept that Mr. Wilson had no privacy rights in connection with thetruck. However, he did in relation to his backpack. It also cannot be said with confidence that the evidence would have been discoveredbut for the breach of Mr. Wilson’s rights.

As noted in Grant, “in cases where it cannot be determined with any confidence whetherevidence would have been discovered in absence of the statement, discoverability will have no impact on the s. 24(2) inquiry” (atpara 122). See also Tim at para 94. [92] The existence of Mr. Wilson’s confession, directly connected to the unlawful arrest, adds to the seriousness of the breach. Asobserved in Grant, “as a matter of practice, courts have tended to exclude statements obtained in breach of the Charter, on the ground thatadmission on balance would bring the administration of justice into disrepute” (at para 92).

One reason for this tendency is that theadmission of unconstitutionally obtained statements goes to the very heart of trial fairness. In R v Evans, (SCC), [1991] 1SCR 869, McLachlin J. (as she then was) held that “the use of an incriminating statement, obtained from an accused in violation of hisrights, results in unfairness because it infringes his privilege against self-incrimination and does so in a most prejudicial way — bysupplying evidence which would not be otherwise available” (at 896).

I accept that there is “no absolute rule of exclusion of Charter-infringing statements under s. 24(2)” (Grant at para 91). The presumption of exclusion may be rebutted if the breaches were “minor orinadvertent” slips (at para 94). However, this cannot be said to be the case here. [93] Considering all of this, I would evaluate the impact of the breach of Mr. Wilson’s rights as being, at the very least, moderatelyintrusive. Thus, the weight of the second Grant line of inquiry pulls toward the exclusion of the evidence. c.

Society’s interest in the adjudication of the case on the merits [94] The third Grant factor is society’s interest in the adjudication of the case on the merits. This was discussed more fully in Grant: [79] Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevantto the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of theevidence, or by its exclusion.

This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are broughtto trial and dealt with according to the law”: R. v. Askov, (SCC), [1990] 2 S.C.R. 1199, at pp. 1219–20. Thus the Courtsuggested in Collins [ (SCC), [1987] 1 SCR 265] that a judge on a s. 24(2) application should consider not only thenegative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence. (Emphasis in original) [95] Here, the evidence was determined to be reliable.

It was also a necessary part – indeed, the very core – of the Crown’s case. Ifthe evidence is excluded, an acquittal must be entered because, without it, the Crown has no case. All of this favours the admission of theevidence. [96] When assessing the third Grant factor, I also attach significant weight to the seriousness of the charges themselves, includingthe fact that they involve the possession of illegal handguns in the context of the drug trade.

As observed by Barrington-Foote J.A. in R vLichtenwald, 2020 SKCA 70, 388 CCC (3d) 377, the “nature of the evidence and the alleged crime are, of course, relevant whenconsidering the relative weight that should be given to the third Grant factor” (at para 79). He noted that, in R v Omar, 2019 SCC 32,[2019] 2 SCR 576, reversing 2018 ONCA 975, 435 DLR (4th) 273 [Omar-CA], the Supreme Court allowed an appeal from a decision bythe Ontario Court of Appeal that overturned a trial judge’s decision to admit evidence of a handgun, ammunition and cocaine obtained inbreach of the accused’s Charter rights.

The majority of the Supreme Court did so “substantially for the reasons of Brown J.A. at the Courtof Appeal” (at para 1). [97] In detailing why, on the facts of that case, he agreed with the decision of the trial judge that the gun and drug evidence shouldbe admitted, Brown J.A. asserted that evidence of illegal handguns in this context should be dealt with in a manner that recognizes thatthey have the distinctive feature of being “used to kill people or threaten them with physical harm, nothing else” (at para 123).

He stressedthat courts should “never forget the impact that our decisions have on the day-to-day reality in which most of our fellow Canadians live –and from which we are by and large insulated” (at para 136). I will return to discuss Omar in the context of performing the final balancingthat Grant requires. [98] Bringing all of this together, I am satisfied that society’s interest in the adjudication of the case on the merits weighs heavily infavour of the admission of the impugned evidence. Mr. Wilson conceded as much. d.

Final balancing [99] Grant requires there be a final balancing of all three lines of inquiry to assess the impact of the admission or exclusion of theevidence on the long-term repute of the administration of justice.

In Beaver, Jamal J. observed the following: [134] … “[W]hen the two first lines, taken together, make a strong case for exclusion”, the third line of inquiry “will seldom tip the scalein favour of admissibility” (Lafrance [2022 SCC 32], at para. 90). … But where the cumulative weight of the first two lines of inquiry isoverwhelmed by a compelling public interest in admitting the evidence, the administration of justice will not be brought into disrepute byits admission.

[ 100 ] The “balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision” ( Grant at para 140 ). In undertaking this task, I am mindful of what it means to bring the administration of justice into disrepute. This was discussed in Grant : [68] The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism.

But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute. [69] Section 24(2)’s focus is not only long-term, but prospective.

The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. [70] Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns.

The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system. [ 101 ] In this case, what the Court is faced with are moderately serious Charter breaches, which caused a moderate intrusion on Mr. Wilson’s Charter- protected interests. These must be weighed against a serious impact on the Court’s adjudicative role if the impugned evidence is excluded. This presents a difficult balance. However, ultimately, it must come down against the admission of the evidence. I say this for four reasons. [ 102 ] First, although the crimes for which Mr.

Wilson has been convicted are very serious, no part of them would have been known had his rights been respected. This is not a situation where the breach of his rights simply added evidence to the case against him. [ 103 ] Second, there was nothing urgent in the circumstances. Mr. Wilson and his companions were already detained for an investigation. The drugs that were in plain view had been lawfully seized. The area was secure. In short, the officers were in a position to act in a careful manner that respected Mr. Wilson’s rights. Yet there is no basis to conclude that they did so.

If they had questions about whether Mr. Wilson could be charged with simple possession, they had the time to secure their answer. [ 104 ] Third, although Omar must be read as attaching weight to society’s interest in curbing the prevalence of drugs and guns in our communities, the decision recognizes that the admission of evidence in the face of a breach of an accused’s Charter rights will not be allowed in a case simply because the crime involves drugs or guns.

In this regard, i n Omar-CA , both the majority and the dissent in the Court of Appeal agreed that “there is no ‘firearms exception’ requiring that guns obtained in breach of Charter rights be admitted into evidence” (at para 56 per Sharpe J.A. and at para 122 per Brown J.A). See also Lichtenwald at para 80 . Also, although in Omar-CA the Court of Appeal determined that the ultimate balance came down in favour the admission of the evidence, the facts there were different. The handgun in that case was loaded and was being carried by Mr. Omar.

The trial judge determined, on the evidence, that the police had acted in good faith and did not believe that they had even detained the accused. The detention itself was also much more fleeting. The gun was seen in plain view by one of the officers when the offender removed his hand from his pocket. The first fact made the offending conduct even more serious than Mr. Wilson’s. The remaining facts rendered the nature of the Charter breaches to be less serious than in this case.

Finally, the admission of the evidence in Omar did not implicate the protections intended to be afforded pursuant to the Good Samaritan Act . I turn now to that decisive consideration. [ 105 ] The fourth and most significant reason why I am persuaded that the balance favours the exclusion of the evidence in this case is because the admission of it would undermine Parliament’s purposes for passing the Good Samaritan Act . [ 106 ] On the facts here, it is likely that Ms. Delorme is alive only because one of her companions called 911. In her case, the objective of the Good Samaritan Act was achieved.

However, if drug users witnessing an overdose or other medical emergency do not know or trust that the Good Samaritan Act will protect them, their fear of consequences for simple possession will reduce the likelihood of them calling 911. In future cases, people in the very same position as Ms. Delorme may well not survive if the evidence in this case is admitted.

I will expand briefly on this point. [ 107 ] In testimony before the House of Commons Standing Committee on Health, Donald MacPherson of the Pivot Legal Society spoke of “nightmare stories coming out of the U.S. about police arresting people at scenes where good Samaritan legislation is in place” ( Evidence , 42d Parl, 1st Sess, No 017 (15 June 2016) at 1650).

While said in the context of discussing if the protection the amendments would afford should extend to offences other than simple possession, he added that “if people do get arrested for very small amounts … word will get out on the street very quickly, which will lessen the impact of this legislation” (at 1705). [ 108 ] The intervenor, John Howard Society of Saskatchewan, observes that the outcome of this case will affect what it will need to say to its clients about the efficacy of the Good Samaritan Act .

It emphasized that it will always tell users of drugs that, if they find themselves in a situation like Ms. Delorme’s companions, they should call 911. However, it suggests that if it must advise users that, although they have a right not to be arrested for simple possession, evidence found in violation of that right can be used against them, it will deter such calls from being made. This submission aligns with common sense.

It also comports with the rationale that underpinned the enactment of the Good Samaritan Act . [ 109 ] With this last set of observations in hand, I return to what it means to bring the administration of justice into disrepute. As observed in Grant , “s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence” (at para 68 ). Section 24(2)’s “focus is not only long-term, but prospective” (at para 69).

Finally, “s. 24(2)’s focus is societal … [and] on the broad impact of admission of the evidence on the long-term repute of the justice system” (at para 70). This is not a case where the serious risks associated with the admission of the evidence are theoretical or esoteric. Nor are the impacts limited to the circumstances of this case. To the contrary, 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. e. Conclusion on the admission of the evidence [ 110 ] 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. V. CONCLUSION [ 111 ] The

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