Facteurs d'appréciation de la brièveté d'une détention aux fins d'enquête

R. v. Barclay, 2018 ONCA 114 (CanLII)

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[27]         The permitted duration of an investigative detention is determined by considering whether the interference with the suspect’s liberty interest by his continuing detention was more intrusive than was reasonably necessary to perform the officer’s duty, having particular regard to the seriousness of the risk to public or individual safety.  R. v. Clayton, at para. 31; R. v. Mann, at p. 324; R. v. Aucoin, 2012 SCC 66 (CanLII), [2012] 3 S.C.R. 408, at para. 36.

[28]         But all investigative detentions must be “brief” because the state interference with the individual’s liberty rests on a reasonable suspicion of criminal activity, a much lower standard than the reasonable and probable grounds needed for an arrest.  The relatively low “reasonable suspicion” standard cannot constitutionally sustain a detention that is not “brief”. 

[29]         The purpose of the brief detention contemplated under the investigative detention power is to allow the police to take investigative steps that are readily at hand to confirm their suspicion and arrest the suspect or, if the suspicion is not confirmed, release the suspect.  

[30]         The word “brief” is descriptive and not quantitative.  It describes a range of time and not a precise time limit.  The range, however, has temporal limits and cannot expand indefinitely to accommodate any length of time required by the police to reasonably and expeditiously carry out a police investigation. 

[31]         The permitted duration of an investigative detention is case-specific. Some of the relevant factors include:

•        the intrusiveness of the detention. For example, handcuffing the suspect behind his or her back and placing the suspect in a police cruiser, or diverting the suspect from his intended path by taking him to the police detachment to continue the investigation, will generally be more intrusive of the suspect’s liberty interest than asking him questions at the point of initial detention. The more intrusive the detention is to the suspect’s liberty interest, the more closely its duration will be scrutinized.

•        the nature of the suspected criminal offence. If the suspected offense is not serious, the permitted duration will probably be at the shorter end of “brief”.

•        the complexity of the investigation. If the investigation is not complex, one would expect that police questioning of the suspect would not reasonably need to be lengthy, and the permitted duration will probably be at the shorter end of “brief”. However, if the investigation of the suspected criminal offence is complex, its complexity will only justify a longer permitted duration within the range of “brief” to the extent it is causally linked to the duration of the detention.

•        any immediate public or individual safety concerns. Immediate public or individual safety concerns may justify a permitted duration at the longer end of “brief”.

•        the ability of the police to effectively carry out the investigation without continuing the detention of the suspect. If there are other reasonable means of continuing the investigation without detaining the suspect, the continued detention of the suspect would likely render continued detention unconstitutional.

•        the lack of police diligence. For example, if a sniffer dog were immediately available, and yet the police detained the suspect for 20 minutes before employing the dog to confirm or refute their suspicion, then, depending on all of the other relevant factors, the interference with the suspect’s liberty interest as a result of the lack of police diligence might render the delay  unconstitutional.

•        the lack of immediate availability of the required investigative tools. On the other hand, depending on all of the other relevant factors, if a sniffer dog were made available as soon as practicable and employed as soon as available, the same 20-minute detention might fall within the range of time that can be characterized as a “brief” detention.

[32]         The relative importance of these and other relevant factors, and thus the permissible length of an investigative detention, will vary from case to case. But it is crucial to remember that such factors merely situate the permitted duration of the detention within the range of what is “brief”, and that all investigative detentions must be “brief”.