If You Call 911 at an Overdose, Can You Face Arrest for Possession?

Michelle Gamage,
Local Journalism Initiative Reporter

Canada’s highest court is meeting today to decide whether or not someone who calls 911 to report a drug overdose can be arrested for having drugs on them.

The court case will help clarify the Good Samaritan Drug Overdose Act, which since 2017 has protected people who call 911 for drug-related medical emergencies from being convicted of simple drug possession and other related offences. While the act prevents people from being convicted, it’s not currently clear whether or not people are similarly protected from arrest.

Police can arrest someone when they have reasonable evidence to believe a crime has been committed. A person is charged when it is decided that they will be prosecuted for that crime, and then they are either acquitted or convicted of that crime.

The purpose of the Good Samaritan act is to prevent harm, save lives and encourage people to not use drugs alone, to call 911 in case of emergency and to stay on the scene providing first aid until first responders can get there and take over, said DJ Larkin, executive director of the Canadian Drug Policy Coalition.

The law needs to be as clear and straightforward as possible so people in an emergency situation aren’t wondering if they will be punished for calling 911, Larkin said.

Today’s case stems from a 2020 incident in a small Saskatchewan town. A woman used fentanyl and started to show signs of drug toxicity. The people she was with called 911 and stayed with her, providing CPR.

“Their action likely saved her life,” Larkin said.

When police arrived they arrested the woman and the three people she was with for drug possession, using the arrest to search them and a car, which was then used to arrest them for drug trafficking and other alleged criminal offences.

The Supreme Court will decide on the case, which will clarify whether or not police across the country can legally arrest a person for simple drug possession at the scene of an overdose. The decision will likely arrive within six months.

The Canadian Drug Policy Coalition, the Association des intervenants en dépendance du Québec and the Harm Reduction Nurses Association will together be intervening in today’s court case, asking the Supreme Court of Canada to prioritize harm reduction in its decision.

Five other interveners will also be heard.

Hesitating to call 911 can have life-or-death consequences, said Corey Ranger, president of the Harm Reduction Nurses Association.

“At least 49,105 people have died in Canada from drug poisoning since 2016 and the primary driver of these deaths is the toxic, unpredictable and unregulated drug supply, contaminated with unwanted adulterants, variable concentrations of fentanyl and its analogues, and non-opioid sedatives like animal tranquilizers,” Ranger said.

More than 34 per cent of those 49,105 deaths occurred in B.C., according to the BC Coroners Service, despite the fact that the province is home to only about 13.5 per cent of the country’s population.

“These deaths share a commonality,” Ranger said. “Most of them occurred when the person was alone. We know that isolation plus a toxic drug supply is a recipe for preventable death and harm.”

Which is why take-home naloxone kits have been one of the most “impactful interventions” in the ongoing public health crisis, Ranger added.

Naloxone can temporarily reverse an opioid overdose and is available for free from pharmacies and health and community centres.

When a person overdoses on opioids their breathing slows or stops, which can quickly lead to death or brain injury from a lack of oxygen.

Ranger said that when he and his colleagues do naloxone training, they tell people that they must stay with the person who overdosed, and that the Good Samaritan law will protect them.

When someone isn’t breathing, administering naloxone and giving rescue breaths is “critical” to help the person avoid death or brain injury due to a lack of oxygen, he added.

Ranger said he is worried that if the Supreme Court decides people can be arrested under the Good Samaritan act, it will lead to more people being “abandoned” at the scene of an overdose.

It’s important for the courts to work to identify and question assumptions and “common sense” thinking when it comes to drugs, Larkin said.

When courts don’t do this work stigma creeps into their decisions, Larkin said, pointing to a 2024 paper that reviewed 129 Canadian court cases related to drugs and found stigmatizing and moralizing language was “entrenched and normalized” in the judge’s decisions.

Larkin said the Canadian Drug Policy Coalition is working to counter the idea that arresting people for drug possession and taking away their drugs adds to public safety.

Confiscating drugs increases a person’s risk of overdose, for example, Larkin said, because they then have to interact a second time with a highly unpredictable and dangerous unregulated drug supply.

Confiscating drugs at the scene of an overdose discourages people from calling 911 during a future overdose, Larkin added.

Michelle Gamage,
Local Journalism Initiative Reporter
The Tyee