The Permissible Length of an Investigative Detention
Investigative
Detentions and the Constitution
Section 9 of the Charter provides that everyone has the right not to be
arbitrarily detained. A detention will not be arbitrary if it is lawful.
One type of lawful detention is a common law
investigative detention. This power allows the police to detain people for
investigation “if there are reasonable grounds to suspect in all the
circumstances that the individual is connected to a particular crime and that
such detention is necessary.” However, the investigative detention must be
“brief in duration” and conducted in a reasonable manner.
R. v. Mann,
2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45.
All
Investigative Detentions Must Be Brief
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, [2012] 3 S.C.R. 408, at para. 36.
However, an investigative detention that is not brief
cannot be constitutionally sustained.
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.
R.
v. Barclay, 2018 ONCA 114, at para. 29.
“Brief” describes a range of time, not a precise limit. While all investigative detentions must be brief,
the permitted duration of an investigative detention is case-specific and is informed
by a number of factors (set out in R.
v. Barclay, 2018 ONCA 114, at paras. 31, 32) including the following:
1.
The intrusiveness of the detention.
The more intrusive the
detention is to the suspect’s liberty interest, the more closely its duration
will be scrutinized.
2. 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”.
3. 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.
4.
Any immediate public or individual safety concerns.
Immediate public or individual safety concerns
may justify a permitted duration at the longer end of “brief”.
5.
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.
6.
The lack of police diligence.
7.
The lack of immediate availability of the required investigative
tools.
Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca
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