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In R. v. Wilson, 2025 SCC 32 [Wilson], the Court disagreed over a word that didn’t exist. In s. 4.1(2) of the Controlled Drugs and Substances Act, SC 1996, c 19 (“CDSA”), those who call emergency services to save a person experiencing an overdose are immunized from being charged or convicted of drug possession. However, the provision does not include the word “arrest.” Despite this, the Court held that the provision also immunizes "good Samaritans" from arrest for drug possession using a purpose-laden modern approach to statutory interpretation.
Wilson is significant for many issues, including a clarification of the scope of good Samaritan provisions and of the Court’s stance on policing and public health policy. But this Comment focuses on one issue—the Court’s use of the modern approach—and argues that greater clarity and consistency is needed in the Court’s method of statutory interpretation.
Facts
In rural Saskatchewan, a woman overdosed on fentanyl (Wilson, paras 10, 110). She was with Paul Wilson (“Mr. Wilson”) and two others. They called 911. As EMS personnel attended to the woman, officers arrived. They saw a white substance at Mr. Wilson’s feet. It looked like crystal meth (paras 83, 113). They arrested him for simple possession of a controlled substance under s. 4(1) of the CDSA (para 115).
Although Mr. Wilson was ultimately charged for various offences, he was not charged for simple possession (paras 14, 120). However, Mr. Wilson argued that his ss. 8 and 9 Charter rights were violated when he was arrested for possession because of the immunity provided by s. 4.1(2) of the CDSA.
Issue
While the Court responded to several issues, the issue this Comment focuses on is this: Does s. 4.1(2) of the CDSA immunize from arrest for drug possession?
Decision
In a 6–3 decision, the SCC upheld the Saskatchewan Court of Appeal’s acquittal of Mr. Wilson, holding that s. 4.1(2) of the CDSA immunized Mr. Wilson from arrest for drug possession. Therefore, his arrest and incident search was unlawful and infringed his ss. 8 and 9 Charter rights.
Between the majority and dissent, the Court sharply diverged in its statutory interpretation of s. 4.1(2), in its characterization of Parliamentary intent, and its identification of policy considerations.
Majority
Karakatsanis J’s interpretation of s. 4.1(2) hinged on a purposive analysis: Parliament’s purpose was to save lives, and providing immunity from arrest was necessary to achieve this purpose; therefore, Parliament intended immunity from arrest despite not explicitly including arrest in the provision (paras 34, 36–37, 41). Karakatsanis J pointed to Hansard evidence that suggested that members of Parliament used terms of arrest, charge, and conviction in non-technical ways, as well as evidence that expressed explicit intent to immunize “good Samaritans” from arrest (paras 36, 41–44).
Karakatsanis J argued that interpreting s. 4.1(2) as immunizing from arrest for simple possession better aligned with the broader harm reduction measures that Parliament had promoted alongside of s. 4.1(2) (para 30). Immunization from arrest for simple possession removes a key barrier from calling 911 for drug users who themselves are most likely to call for emergency assistance (para 71). Furthermore, because immunization from arrest is solely from one specific offence, other pressing policy objectives, such as police and public safety, are not diminished (para 46).
Dissent
Jamal J’s interpretation emphasized a text-focused analysis of s. 4.1(2), arguing that “[t]he clear text of the provision must remain the ‘anchor’ of the interpretive exercise” (para 164). He reasoned that Parliament did not intend immunity from arrest based on two presumptions: first, Parliament intends the legal meaning of legal terms; and second, substantial changes of the law require clear statutory language from Parliament (paras 154–155). Jamal J also pointed to evidence suggesting that Parliament used terms of arrest, charge, and conviction as “carefully chosen terms of art” (para 165).
Jamal J projected that immunization from arrest for simple possession would lead to on-the-ground uncertainty for officers where evidence may point to several offences, among which simple possession is but one ground for arrest (paras 202, 206–207). He argued that officers require the ability to arrest and to investigatively detain in order to carry out their duties to protect themselves and the public (paras 185–190).
Analysis
Which Modern Approach?
As is usual in the Court, both Karakatsanis J and Jamal J invoked the “modern approach” of statutory interpretation, which focuses upon the “harmonious” reading of the text, context, and purpose of a statute (paras 32, 129). On its face, the application of the modern approach, with its fusion of the purposivist/textualist divide in statutory interpretation, would lead to greater unity in the Court’s statutory interpretation. But this is not the case. Despite using identical approaches to statutory interpretation, Karakatsanis J and Jamal J arrive at contradictory positions: the majority reads the statute to include “arrest”; the dissent does not. How?
In Wilson, this contradictory outcome occurs because of an implicit retreat to the familiar camps of purposivism and textualism. While both decisions give nods to all facets of the modern approach, Karakatsanis J ultimately sees the statute’s purposes as dispositive, whereas Jamal J sees its text as dispositive.
This stretchy use of the modern approach, however, should not come as a surprise. Thomas Slade notes1 that in a statutory interpretation case from the same year, Piekut v. Canada (National Revenue), 2025 SCC 13 [Piekut], the justices’ roles flipped. Although Jamal J again emphasized a text-focused approach; this time, he writes for the 6-3 majority. And again, Karakatsanis J emphasized a purpose-focused approach, albeit in dissent. And, like in Wilson, despite both decisions putatively adhering to the modern approach, both reached contrary interpretations.
The Court’s flip-flop in Wilson and Piekut between textualist-leaning and purposivist-leaning—but still “modern”—approches to reach contradictory conclusions shows that the Court’s use of the modern approach, at the very least, needs clarification. If you can use the modern approach to conclude that a statute both immunizes from arrest and does not immunize from arrest, the modern approach ceases to meaningfully communicate how the Court, in reality, interprets statutes. Instead, the question seems to be: Which modern approach? The textualist one? Or the purposivist one?
Perhaps one can argue that this has always been the case, at least since the Court’s celebrated approval of Dreidger’s modern principle in Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27. But the lack of clarity surrounding how the Court chooses to interpret statutes matters. When it is the words of a statute that are the primary mouthpiece of democratically elected legislators, the stakes of statutory interpretation are high. To preserve the balance in this country’s division of powers, to ensure that elected legislators receive appropriate deference, to maintain judicial legitimacy in an increasingly polarized society—these considerations stress the need for the Court to be clearer to Parliament about how it interprets Parliament’s words. Inserting the boilerplate acknowledgement of the modern approach, evidently, says little about how the Court will interpret a statute.
A related issue, especially concerning the Court’s “dialogue” with Parliament, is with interpretive consistency. When Karakatsanis J and Jamal J in Wilson and Piekut consistently apply their (albeit competing) interpretive stances, their consistency communicates a stable expectation to legislators regarding how a judge might interpret their words, whether via Hansard or in the statutory text. Ideally, interpretive consistency communicates a standard that can operate above a particular judge’s ideological commitments. Based on Wilson and Piekut, Parliament can expect that Karakatsanis J and Jamal J will interpret their statutes in a purposivist-leaning and textualist-leaning way, respectively. Legislators can then accordingly debate and draft in a manner fitting these expectations. Note, however, that interpretive consistency does not mean interpretive uniformity; it is up for grabs which interpretive hermeneutic a judge finds most appropriate (within, of course, Canadian common law boundaries of statutory interpretation). But as the Court’s flip-flopping in Wilson and Piekut between purposivist and textualist preferences in the majority and the dissent shows, not all members of the Court are as consistent in applying interpretive principles. This flip-flopping makes the Court susceptible to the criticism that the modern approach may function more as a smokescreen for a judge’s eventual focus upon a dispositive textual, contextual, or purposive locus of statutory interpretation to reach a preferred outcome.
As shown through Wilson (and Piekut), at this stage in the Court’s jurisprudence on statutory interpretation, it seems untrue to hold that one interpretive approach—the modern approach—is at work in the Court. Instead, it may be more true, and helpful, to speak of the many modern approaches the Court employs to interpret statutes. This plurality in modern approaches has led to a lack of clarity and consistency in how the Court dialogues with Parliament. Perhaps the Court should plainly state which interpretive approach, or focus, is being used at the outset. At the very least, the modern approach needs remodernizing.
- Dale Smith, “Supreme Court of Canada clarifies Good Samaritan law” (24 October 2025), online (article):
<https://nationalmagazine.ca/en-ca/articles/law/hot-topics-in-law/2025/supreme-court-of-canada-clarifies-good-samaritan-law> [https://web.archive.org/web/20260113213122/https://nationalmagazine.ca/en-ca/articles/law/hot-topics-in-law/2025/supreme-court-of-canada-clarifies-good-samaritan-law].
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