Disclosure is a cornerstone of the Canadian criminal justice system. For an accused person, disclosure is not simply a procedural step. It is part of the constitutional right to a fair trial and the ability to make full answer and defence.
In Edmonton (Police Service) v. McKee, the Supreme Court of Canada considered whether police misconduct records that had been administratively removed from an officer’s disciplinary record could still be subject to disclosure in a criminal case. The Court dismissed the appeal and confirmed that administrative expungement does not remove relevant police misconduct information from Canada’s criminal disclosure framework.
Lead Detective in Drugs and Weapons Case Disciplined for Misconduct
The accused was charged with several drug, weapons, and possession-related offences following a police investigation. A detective was the lead investigator in that investigation.
Years earlier, a finding of misconduct had been made against that detective. However, before the criminal charges were laid, the misconduct finding had been removed from the detective’s record of discipline under Alberta’s police discipline regime. The police service later took the position that it had no relevant disciplinary records in its possession for that officer.
The defence learned by chance that a record of the misconduct existed. The Crown retrieved the record from an unrelated prosecution file, reviewed it, and concluded that it had a realistic bearing on the detective’s credibility. The Crown took the position that it should be disclosed. The police service disagreed and resisted disclosure. As a result, the accused brought an application for disclosure. The application was granted. The police service appealed to the Supreme Court of Canada.
Are Expunged Police Misconduct Records Governed by Regular Disclosure Rules?
The central question was whether administratively expunged police misconduct records are governed by the regular first-party disclosure framework in criminal cases, or whether an accused must seek them through a more restrictive third-party records process.
The police service argued that because the misconduct finding had been removed and treated as expunged under the applicable regulation, it could not be disclosed through ordinary criminal disclosure. On that view, the defence would need to bring a third-party production application.
The Supreme Court of Canada rejected that approach. The Court held that administrative expungement changes the record’s disciplinary status. It does not erase the underlying misconduct finding for criminal disclosure purposes. If the information is relevant to the accused’s ability to meet the Crown’s case, advance a defence, or make decisions about how to conduct the defence, it remains subject to the criminal disclosure framework.
The Constitutional Foundation of Disclosure
The Court began from a familiar principle: every person charged with a criminal offence has the right to a fair trial and to make full answer and defence.
That right is protected by the Canadian Charter of Rights and Freedoms and is given practical effect through disclosure. The Crown must disclose all relevant, non-privileged information in its possession or control. This includes information that may assist the defence, even if the Crown does not intend to use it at trial.
The Court emphasized that relevance is the governing concept. Information does not need to guarantee a successful defence strategy before it becomes disclosable. The threshold is functional and relatively low. If the information may reasonably assist the accused in responding to the Crown’s case or making litigation decisions, it may be relevant.
How Police Misconduct Fits Into Disclosure
Canadian disclosure law distinguishes between different categories of records. The Court reviewed three major disclosure frameworks:
- The Stinchcombe framework governs first-party disclosure. This requires the Crown to disclose all relevant, non-privileged material in its possession or control.
- The O’Connor framework applies when an accused seeks records from a true third party. That process is more restrictive and involves a court-based balancing exercise.
- The McNeil framework addresses police misconduct records. Under that framework, police misconduct information may form part of first-party disclosure where it relates to the investigation or could reasonably affect the case against the accused.
The Court confirmed that administratively expunged misconduct records remain within the McNeil framework where they meet the relevance standard. The fact that a record has been removed from an internal disciplinary record does not transform it into a third-party record for criminal disclosure purposes.
Expungement Does Not Erase Relevance
One of the most important aspects of the decision is the Court’s treatment of administrative expungement. The Court distinguished between a record’s administrative status and its potential relevance in a criminal proceeding. A regulation may provide that a misconduct entry is removed from an officer’s record of discipline and not used in future disciplinary proceedings. However, that does not determine whether the information may be relevant to an accused person’s fair trial rights.
The Court explained that administrative expungement does not retroactively eliminate the finding. Nor does it make the underlying misconduct irrelevant. A police officer’s past misconduct may still bear on credibility, reliability, investigative integrity, or other live issues in a criminal case.
At the same time, the age of a record may matter. Older findings may have less probative force in some cases. However, age affects the relevance assessment. It does not create a categorical exclusion.
The Roles of Police and Crown
The Court provided guidance on the respective roles of police and Crown prosecutors. Police must meaningfully participate in the disclosure process. This includes identifying and transmitting relevant information to the Crown, including misconduct information. Police are not the final decision-makers on whether relevant information should be disclosed to the defence.
The Crown is the institutional decision-maker on relevance for criminal disclosure. The Crown reviews the material, considers its connection to the case, accounts for any privacy concerns, and determines what must be disclosed.
The Court also made clear that police cannot unilaterally withhold relevant misconduct information from the Crown based on their own assessment of privacy or administrative expungement. Privacy interests may be real, but they are addressed through the Crown’s disclosure assessment and, where appropriate, safeguards such as redactions or conditions.
What Police Must Provide
The Court outlined several practical principles for handling police misconduct records. Misconduct tied to the investigation at issue is relevant and must be provided to the Crown. Misconduct outside the investigation may also be relevant where it could reasonably affect the case against the accused.
The Court also clarified that disclosure of police misconduct is not limited to criminal records or a narrow checklist of misconduct categories. The substance of the information matters. If the misconduct relates to the accused’s ability to meet the Crown’s case, raise a defence, or decide how to conduct the defence, it may qualify as relevant misconduct information.
Where police believe misconduct information is not relevant, withholding it from the Crown will generally be exceptional. If police do withhold information, they must tell the Crown what has been withheld and explain why the relevance threshold was not met. The Crown may then request more detail and reassess.
The Crown’s Duty to Inquire
The decision also addresses what happens when the Crown becomes aware of potentially relevant misconduct information. The Court held that when the Crown is put on notice of potentially relevant information, it must make reasonable and feasible inquiries. Notice may come from defence counsel, another prosecutor, media reporting, or other credible sources.
There are limits. The Crown does not need to pursue information where the notice is unfounded, meaning it lacks credibility, specificity, or a meaningful connection to the issues. The Crown also is not required to obtain material where doing so is not reasonably feasible.
However, where notice is credible, and it is feasible to obtain the material, the Crown must take targeted steps to locate and assess it. The first step is usually to request the material from police.
Disclosure, Fairness, and the Criminal Process
The Supreme Court of Canada’s decision confirms that police misconduct information does not lose its potential relevance because it has been administratively removed from an officer’s disciplinary record. If the information may assist the defence in meeting the Crown’s case, advancing a defence, or making decisions about the conduct of the case, it may fall within first-party disclosure.
For accused persons in Toronto and across Canada, the decision is an important reminder that disclosure can be a central issue in criminal proceedings, particularly where the conduct or credibility of police witnesses may be in question.
Hicks Adams: Criminal Defence Lawyers Protecting Accused Individuals’ Charter Rights in Toronto
Facing criminal charges in Toronto, North York, Scarborough, Etobicoke, or the Greater Toronto Area can raise complex disclosure issues, including questions about police notes, investigative records, officer credibility, search warrants, drug investigations, firearms allegations, and Charter rights.
The experienced criminal defence lawyers at Hicks Adams can review the disclosure, identify potential gaps, and address whether additional records should be requested. Contact us online or call 416-975-1700 to discuss your charges, disclosure concerns, and available defence options.
