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‘Good Samaritan’ bill urged for drug epidemic

Proposed legislation gives immunity for people seeking aid in overdoses
By Cristin Schmitz
March 17 2017 issue

Ottawa criminal lawyer Michael Crystal, seen in front of the Parliament buildings, said the idea behind C-224 is ‘people will stop letting other people  who are overdosing expire in their presence.’ [Roy Grogan for The Lawyers Weekly]

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A proposed new criminal immunity for “good Samaritans” who try to aid people experiencing drug overdoses will save lives and assist defence counsel, if it becomes law, say proponents of federal Bill C-224.

At press time, the fate of the proposed Good Samaritan Drug Overdose Act was very much up in the air as the Liberal private member’s bill awaited final approval by the Senate (possibly in late March), after obtaining rare unanimous support from MPs last year.

The bill had been on track to swiftly become law, but now could be delayed, or even derailed, as the federal government mulls whether to maintain or withdraw its support if, as anticipated, the Senate returns C-224 to the Commons with amendments that expand the proposed immunity from prosecution for people who seek emergency assistance for their own, or another’s, drug overdoses. The government could also decide to table its own version of the legislation.

“We look forward to reviewing the bill again once the Senate has completed its process, at which time we will be able to outline our government’s position on any final amendments made,” Health Canada spokesman Andrew MacKendrick said by e-mail.

As passed by the Commons last November, Bill C-224 would amend the Controlled Drugs and Substances Act (CDSA) to bar the laying of charges under s. 4(1) for the illegal possession of drugs listed in Schedules 1 to 3 against people who seek emergency medical or law enforcement assistance for their own, or another’s, overdose on a controlled substance (e.g. opiates such as fentanyl, oxycodone and heroin).

Bill C-224 aims to remove what is said to be the number one reason people cite for not dialing 911 to seek aid for a drug overdose, or for not remaining at the scene to assist the person overdosing, which is fear of prosecution for possessing (or consuming) illegal drugs. Similar laws exist in 36 American states and the District of Columbia (although evidence establishing their efficacy remains scarce).

“The idea is that people will stop letting other people who are overdosing expire in their presence — because what’s happening now,” explained Ottawa criminal law specialist Michael Crystal, who gave strategic legal advice on C-224 to its sponsor, B.C. Liberal MP Ron McKinnon.

Canada’s surge in opiate deaths propelled the success of C-224 — one of the rare private member’s bills to gain Commons approval. Not only did it win all-party support last year, it was enthusiastically backed by many provincial health ministers, police chiefs, first responders and crime prevention councils.

However, the bill hit a speed bump, if not a fatal obstacle, March 2 when the Senate Legal and Constitutional Affairs Committee substantively rewrote it to expand the categories of people who will qualify for the proposed new exemption from prosecution.

Working across partisan lines, senators led by non-affiliated former judge Murray Sinclair, Conservative ex-police chief Vern White and independent Liberal Serge Joyal, broadened the immunity’s coverage, for example, to protect people who call 911, but who do not remain at the scene with the person overdosing.

They also broadened the immunity to encompass those who seek emergency assistance for drug overdoses from being charged as a result with an offence concerning violation of any condition of their pre-trial release, probation order, conditional sentence, or parole relating to a drug possession offence under s. 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.

Joyal, a constitutional expert and the Senate committee’s senior member, argues the government should continue to support C-224 — which he contends his committee has clarified and strengthened without impermissibly extending its scope.

“They should pass that bill the way we have amended it,” he advocated by telephone from Montreal. “I think that this bill needs urgent consideration by the government, and it’s not for the government to sit on it and wait and see — when we see people dying regularly.”

National statistics are not available, but overdoses of fentanyl and other opiates such as oxycodone numbered well over 1,000 in Canada last year. The Commons was told that in Ontario, opiate overdoses are the second leading cause of accidental death (behind falls) —eclipsing car accidents.

Crystal believes the Senate committee’s amendments could win the necessary Commons stamp of approval, if the bill returns there, as the committee amended it. “It was sort of bare bones and seemed to be focused at too slim a population that might have the benefit of the bill,” he remarked. “I think it’s now more fulsome, and it’s something that the government would support.”

(Indeed the government had been anticipating passage of the bill. Health Canada officials told the Senate it has readied public education materials to inform “entrenched” drug users, the “recreational youth-targeted population,” and the public about the new exemption, if it becomes law.)

Lawyers should note that C-224 would exempt “good Samaritans” from prosecutions for drug possession — not drug trafficking. And because the trafficking offence doesn’t require commercial gain, a person who reports an overdose of a drug he or she has shared for free with the person in distress would still risk a trafficking charge.

Yet the legislation might assist in that situation, Crystal suggested. “It’s a mitigating factor, and I think a Crown would see it that way, and I think a judge would see it that way.”

Even if C-224 does not pass, Crystal sees it as potentially helpful to defence counsel. For example, if a good Samaritan client were charged with simple possession, Crystal advised drawing the Crown’s and the judge’s attention to the fact that there has been a big movement in Parliament suggesting that such behaviour should not be criminal. “I would say to the prosecutor: ‘Hey let’s talk about diversion. Let’s talk about some sort of discharge for my client,’ ” Crystal explained. “If I’m a judge, I’m always thinking about where the legislation is going because it’s a really good guideline. It’s some breadcrumbs in the snow to get me from one point to the next.”

When Sinclair introduced the amendment exempting from prosecution those good Samaritans who are thereby found to be in breach of their parole, probation etc., Department of Justice senior criminal law policy counsel Paul Saint-Denis informed the Senate committee “clearly it introduces a whole new area of protection.” However he also pointed out that the exempted violations would be limited to offences in relation to the possession of drugs. “So if a person is carrying a firearm in breach of one of these orders, then he’s not protected” by the proposed exemption, Saint-Denis observed.

The Senate committee instructed that the amended bill should be reported back to the Senate for approval with this observation: “The committee strongly supports the intent of the bill and has adopted the amendments to strengthen and clarify the bill. The committee encourages the Senate and the House of Commons to consider the proposed amendments as expeditiously as possible so that the measures in the bill may be implemented as quickly as possible.”

The Commons can accept, partially accept or reject any Senate amendments to C-224.

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