Unanimous decision offers guidance on when police must disclose misconduct information
The Supreme Court of Canada has dismissed an appeal made by the Edmonton Police Service in a case involving the disclosure of police officer misconduct.
Edmonton (Police Service) v. McKee is an interlocutory appeal on a decision rendered by the Alberta Court of King’s Bench. The verdict by the trial judge stated that even though a police officer’s official record had been expunged of an earlier finding of misconduct in accordance with the Police Service Regulation, the accused, John McKee, had the right to have information about that misconduct disclosed to him, as it affected his ability to have a fair trial and to make a fair defence, even in light of any potential issues of privilege, citing paragraph 340 of R. v. Stinchcombe. The Edmonton Police Service disagreed with that verdict.
Justice Sheilah Martin, writing for the unanimous decision of the seven justices (Chief Justice Richard Wagner, and Justices Andromache Karakatsanis, Suzanne Côté, Malcolm Rowe, Nicholas Kasirer and Mahmud Jamal) who heard the case, supported the trial judge’s decision, and expanded upon it, offering additional guidance regarding situations where police are required to disclose information about misconduct. In her decision, Justice Martin stressed that it is the Crown’s duty to decide what is relevant police conduct and what isn’t and therefore what needs to be disclosed to the accused. She also reiterated that landmark cases dealing with this issue, including Stinchcombe, R. v. O’Connor, [1995] 4 S.C.R. 411, and R. v. McNeil, are settled law. Justice Martin also detailed 10 principles to consider when contemplating misconduct disclosures.
The situation in McKee was complicated by the fact that the police didn’t even disclose details about the expunged misconduct to the Crown assigned to the case. The misconduct finding, which occurred in 2015, had been removed from the officer’s record before June 2022, when the police department issued a disclosure package to the Crown regarding charges brought against McKee for drug, weapons, and possession offences. That information, which was shared with McKee’s counsel, said there was no misconduct information to disclose. McKee’s lawyer, however, later learned that the lead investigator had a disciplinary record. Upon reviewing the situation, the Crown realized that information about the misconduct had previously been disclosed to the office in relation to a separate case. After reviewing the information, the Crown decided that the misconduct should have been disclosed. The police disagreed, forcing McKee to file an application for disclosure, with the Crown’s assent.
Separating the Crown from the police
Justice Martin clarified that the police are obligated to be forthcoming about misconduct when it could impede somebody’s ability to obtain a fair trial and to make a full answer and defence. She stated that “This guarantee is given practical effect through disclosure… The police must meaningfully participate in the disclosure process by identifying and transmitting relevant information to the Crown, including investigative and disciplinary material. The administrative removal of a record of police misconduct from a police officer’s record of discipline does not alter the legal regime under which its disclosure is determined in criminal proceedings.”
She explained that the administrative rule under which a record may be cleared “does not alter the legal regime under which its disclosure is determined in criminal proceedings” and “cannot displace the constitutional foundation of disclosure or convert first-party disclosure into third-party production.”
Justice Martin reiterated that the disclosure rules are governed by the three cases mentioned above: Stinchcombe, which addresses first-party disclosure and the Crown's obligation to disclose all relevant, non-privileged information; O’Connor, which details a two-stage process for third-party disclosure; and McNeil, confirming that police misconduct records are first-party information and therefore handled under the Stinchcombe rules.
“Although the Crown and the police are institutionally distinct, the police act on the same first-party footing as the Crown and have a duty to disclose relevant information to the Crown,” she wrote.
Commentary from Canadian Civil Liberties Association and McKee’s lawyers
The case attracted several interveners on both sides. In addition to the main parties, the others that appeared before the court included Detective Jared Ruecker and the Edmonton Police Association, the British Columbia Civil Liberties Association, the Toronto Police Association and the Canadian Police Association, the Attorney General of British Columbia, the Attorney General of Alberta, the Police Association of Ontario, the Chief of the Toronto Police Service, Myron Demkiw, the Criminal Trial Lawyers' Association, the Criminal Lawyers’ Association (Ontario), the National Police Federation, the Attorney General of Ontario, and the Canadian Civil Liberties Association.
Chris Rudnicki, lead counsel for Toronto-based Rudnicki & Company, appeared on behalf of the CCLA and is “very happy” with the decision.
“It’s a complete rejection of the police position, and it’s an affirmation that relevance is the watchword in disclosure and not some kind of formulaic adherence to form over substance,” he says.
Rudnicki’s impression from the hearing left him feeling as if police forces are treating the Ferguson Five in a determinative manner when deciding what to send to the Crown. He added that in Ontario, for example, only misconduct that made it as far as hearings due to changes in the “police workplace discipline architecture”— a process that has become increasingly rare — tended to be disclosed. Now, under the new guidance, he expects Crowns to see a large uptick in the number of disclosures they receive.
“It’s a new regime. It is a change,” he says. “I do think it’s a change in the law, or at least a clarification that changes how the police were interpreting the law.”
He says this decision brings everything back to the core principle that when an accused faces a criminal charge that could deprive them of their liberty, they have the right to access all information that could prevent them from being wrongfully convicted.
Tania Shapka, of Edmonton-based Pringle Law, who was one of McKee’s lawyers, expects this decision will lead to streamlining of the disclosure process, reducing pretrial disclosure litigation and creating a more efficient disclosure system overall. She was also pleased the decision offered some clarity into how the phrase “obviously relevant”, which plays a key role in cases such as McNeil and even R v. Gubbins, should interpreted: not as an exacting standard, but a simple proxy for the Stinchcombe relevance threshold.
“Broadly speaking, this decision should give accused persons (and the public) confidence that serious and relevant misconduct of officers involved in a criminal case will not be swept under the rug, which of course would compromise trial fairness and the constitutional right to make full answer and defence.”
Editor's Note: This article was updated at 8:38 am EST on June 28.
