Supreme Court Of Canada Upholds Obligation To Disclose All Police Disciplinary Records In Criminal Proceedings, Regardless Of Administrative Expungement

Summary of Edmonton (Police Service) v. McKee, 2023 ABKB 698, 2026 SCC 24

Background

The Respondent, John McKee, was charged with several drugs and weapons offences in May 2022. By happenstance, he learned of the existence of a disciplinary record concerning the lead detective in his case and requested disclosure. Two days later, the Crown obtained and reviewed the record, concluding that it should be disclosed. However, the disciplinary record concerned a finding of misconduct that was made in 2015, which was expunged by operation of Alberta’s Police Service Regulation (the “PSR”).

The police agency resisted disclosure of the record. The accused brought an application, which was granted by the application judge who ruled that the PSR did not govern disclosure in criminal proceedings. The police agency appealed the order to the Supreme Court of Canada, who ultimately dismissed the appeal.

Disclosure of Disciplinary Records

Every accused is constitutionally entitled to a fair trial. In order to make full answer and defence, the Crown must provide the accused with all relevant information, including information that could advance a defence. Disclosure is governed by three main cases: R v. Stinchcombe sets out first party disclosure and requires the Crown to disclose all relevant, non-privileged information in its possession. R v. O’Connor sets out a process when an accused seeks records from a third party. Finally, R v. McNeil confirms that police misconduct that is related to the investigation or could reasonably impact the case on the accused is first party disclosure.

The Supreme Court of Canada confirmed that while administrative expungement of a record alters the record’s disciplinary status, it does not alter its character as a misconduct finding that is capable of assisting the defence. While the age of the record may carry less probative force, it does not provide a rational to exclude such information from first party disclosure.

Section 22 of the PSR states:

Records of discipline

22 When, and only when,

(a) a period of 5 years has elapsed from the day that punishment is imposed on a police officer for a contravention of section 5, or

(b) a period of not less than one and not more than 3 years, as specified in writing by the chief of police, in respect of a police officer, or the commission, in respect of the chief, has elapsed from the day that an action is taken in respect of a police officer under section 19(1),

if during that time no other entries concerning a contravention of this Regulation have been made on the police officer’s record of discipline, any record of the punishment, the contravention or the action taken shall

(c) be removed from the police officer’s record of discipline and destroyed, and

(d) not be used or referred to in any future proceedings respecting that police officer.

Though the PSR speaks of “destroying” misconduct records, the agency retained a mirrored copy of all expunged files in a separate electronic system managed by a separate branch. The Court concluded that section 22 of the PSR only applied to disciplinary proceedings and did not authorize expunged records to be permanently or irreversibly destroyed, which would defeat constitutional disclosure principles.

The Supreme Court also noted that while the Crown and police are institutionally distinct, and police have a duty to disclose relevant information to the Crown (including information in a police officer’s file about misconduct), the prosecuting Crown is the “institutional arbiter of relevance” in the criminal disclosure regime.

Guiding Principles for Disclosure of Disciplinary Records

The Supreme Court set out ten guidance principles for police triaging misconduct records of officers:

1) relevance sets a low functional threshold and all material must be provided unless clearly irrelevant, privileged, or its disclosure is otherwise governed by law;

2) police misconduct is relevant where it is: (i) misconduct tied to the investigation; and (ii) other misconduct that could reasonably impact the case on the accused;

3) disclosure requires more than criminal record type information, including any outstanding charge, finding of guilt, finding of misconduct, or conviction under any provincial or federal enactment, and misconduct records that do not fit neatly must still be assessed;

4) police must automatically disclose, at a minimum, the charge information associated with the misconduct (the date of conviction, finding of guilt, finding of misconduct or outstanding charge; the offence; and the punishment), and particulars sought from the Crown must be provided upon request;

5) withholding misconduct records on the basis it is not relevant is likely to be exceptional, and police must still notify the Crown of what is being withheld and the reason that the relevance threshold was not satisfied;

6) once notified that material has been withheld, the Crown may request particulars and can override the initial police assessment, as Crown makes the ultimate determination about what relevant information should be given to defence;

7) when the Crown is put on notice (by defence, Crown, media, personal memory, or common knowledge) of potentially relevant information, it must make reasonable, feasible inquiries and disclose as appropriate, as the operative consideration is the Crown’s awareness of information that may assist the defence;

8) police may convey privacy concerns related to the disclosure of misconduct, but the Crown determines whether and how to accommodate them, as police cannot unilaterally withhold relevant information based on their assessment of privacy interests;

9) administrative expungement does not erase the underlying finding for criminal law purposes, and the police must maintain any administratively expunged disciplinary records to fulfill its first party disclosure obligations to the Crown; and

10) the system reserves and preserves the obligation of the Crown to make determinations of relevance, which can be judicially challenged.

Conclusion

The Supreme Court, in McKee, clarified the principles around disclosure of disciplinary records and the relationship between the Crown and police in determining relevance. The Supreme Court is clear – Crown determine the relevance of a disciplinary record, not the police.

In the accused’s case, the Court found that once the Crown had reached the view that the expunged misconduct had a realistic bearing on the Detective’s credibility, the matter fell within the usual first party disclosure principles and had to be provided to the defence.

In BC, section 180(8) of the Police Act provides a similar mechanism for expungement of a member’s service record of discipline. Section 180(8) specifically provides that “records…in relation to a member must be expunged from the member’s service record of discipline” if the enumerated factors were applicable. Following the Supreme Court of Canada’s interpretation of the words “destroy” and “remove” in the Alberta PSR, “expungement” of disciplinary records in BC must follow the same principles.

McKee confirms that while a member’s disciplinary record could be removed over time from consideration in future disciplinary matters, the record will remain available to the defence in a criminal prosecution and may have to be produced.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.