The Supreme Court of Canada reaffirmed the importance of disclosure requirements in safeguarding the constitutional right to a fair trial with its recent ruling in Chief of the Edmonton Police Service v. McKee. Writing for a unanimous seven-justice panel, Justice Martin held that expunged records of police misconduct are subject to the same disclosure requirements as live records. Police must disclose “obviously relevant” material regardless of administrative status, and the Crown has a duty to inquire about potentially relevant expunged material. To help provide operational clarity to police services, the Court articulated guidelines surrounding disclosure, addressing the scope of relevance, the interaction between disclosure duties and police privacy interests, and the roles of police and the Crown in the disclosure process.
Background
In 2015, a detective with the Edmonton Police Service was determined to have engaged in misconduct. Sometime between 2015 and 2022, the misconduct was “removed” from the detective’s personnel record and “destroyed” pursuant to section 22 of Alberta’s Police Service Regulation (PSR). The detective subsequently investigated and charged John McKee, who sought disclosure of the disciplinary records of any officer involved in his case. Although the initial search disclosed no such records, McKee’s defence later learned of the expunged record by happenstance and asked the Crown to review it. Upon doing so, the Crown decided it must be disclosed. Disclosure was resisted on the basis that expunged disciplinary materials should fall under a different disclosure regime than live records.[i]
Issues before the Court
The Court addressed three issues:
- Which disclosure framework governs the treatment and disclosure of administratively expunged police misconduct records?
- What qualifies as relevant information of police misconduct?
- What are the respective roles of the police and the Crown for the purposes of disclosure?[ii]
The decision
Three leading Supreme Court cases govern criminal disclosure requirements: Stinchcombe, O’Connor and McNeil. Regarding the first issue, Justice Martin endorsed a purposive and contextual reading of section 22 of the PSR, holding that it “only applies to disciplinary-related proceedings…and does not govern criminal disclosure obligations.”[iii] As part of this finding, “destroyed” in that section does not mean permanent erasure; otherwise, administrative classifications could undermine the constitutional protections of the disclosure system. Accordingly, Justice Martin held that expunged records of police misconduct are subject to the McNeil rule for disclosure, not the higher-threshold O’Connor rule.[iv]
Justice Martin answered the second issue with detailed guidance for police services. She clarified that “obvious relevance” is simply a rearticulation of the Stinchcombe standard, i.e., “all material must be produced unless clearly irrelevant, privileged or its disclosure is otherwise governed by law.”[v] When determining relevance, she wrote, police should engage in “a contextual and functional inquiry, which asks whether the misconduct could reasonably assist the accused.”[vi] She similarly required that police determine “serious misconduct” in a “functional, non-categorical manner,” and noted that the Ferguson Five represent an incomplete list of matters requiring automatic disclosure.[vii] Finally, she decided that “[p]olice privacy interests cannot impede fair trial rights,” meaning that procedural safeguards surrounding disclosure (e.g., discretionary timing, notice, redactions) are the most suitable tools to protect privacy interests, not exemptions to disclosure.[viii]
Justice Martin reviewed the “Ferguson Five,” a list of circumstances meriting automatic disclosure, and suggested several updates based on advancements in the law. She found that automatic disclosure would be warranted for: “any outstanding charge, finding of guilt, finding of misconduct, or conviction under any provincial or federal enactment for which a free pardon under s. 748 of the Criminal Code or an expungement under the [Expungement of Historically Unjust Convictions Act] has not been granted.”[ix] The non-exhaustive list is meant to provide “helpful and operational guidelines meant to assist busy police services” but “are not limits on what must be disclosed.” She emphasized that the “duty is functional because its purpose is to facilitate defence access to information that may reasonably have a bearing on the case.”[x]
Moving to the third issue, the Court upheld McNeil: police should perform “triage and transmission” of disclosure materials to the Crown, including vetting for relevance.[xi] Notwithstanding this duty, Justice Martin suggested police err on the side of disclosing more, not less, even if that means providing all disciplinary records to the Crown for review.[xii] This follows from the Crown’s constitutional disclosure duty under Stinchcombe: police must undertake good-faith triage and transmission that puts the Crown in a position to discharge its constitutional duty.[xiii]
Since McNeil, the Crown bears a general disclosure duty but also a more particular duty to inquire when “put on notice of the existence of potentially relevant information in possession of other Crown agencies or departments.”[xiv] Justice Martin expounded on this duty as part of her practical guidance. First, she explained it would be “illogical” to confine the source of notice to defence counsel.[xv] Notice may arise from another Crown prosecutor, the media, or an individual Crown’s personal experiences. Next, she identified only two exceptions to the duty to inquire: where notice is “unfounded”, and where obtaining the material is not “reasonably feasible”.[xvi]
Conclusion
The legal takeaway from McKee is that administrative classifications of materials, including expungement, do not change disclosure requirements for police. More practically, Justice Martin, in what will be one of her final decisions, offers clearer guidelines to police services on how to satisfy disclosure requirements.
Annex / summary of guidelines
Justice Martin’s summary of her guidelines at paragraph 148 of the decision is copied in full here:
- Relevance governs first party disclosure and sets a low, functional threshold. The “obviously relevant” threshold is not a higher bar but a proxy for the standard of relevance the Crown employs under Stinchcombe — that all material must be provided unless clearly irrelevant, privileged or its disclosure is otherwise governed by law.
- Police misconduct information is relevant in two ways. Misconduct tied to the investigation at bar is per se relevant and must be provided to the Crown. Other misconduct by an officer involved in the case may also be relevant if it could reasonably impact on the case against the accused. This will be so where the information relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence. This information is part of the first party disclosure package due to the Crown. These obligations are automatic and disclosure must be done without prompting.
- The “Ferguson Five” categories are reformulated as follows: any outstanding charge, finding of guilt, finding of misconduct, or conviction under any provincial or federal enactment for which a free pardon under s. 748 of the Criminal Code or an expungement under the Expungement of Historically Unjust Convictions Act has not been granted. The “Ferguson Five” aid triage but are not all that must be considered. The substance, not form, of the information controls, and “serious misconduct” is defined by its relationship to relevance.
- Concerning the scope of what must be disclosed, the police must automatically disclose, at a minimum, the charge information associated with the misconduct (i.e., the date of conviction, finding of guilt, finding of misconduct or outstanding charge; the offence; and the punishment). If the Crown seeks particulars about the misconduct, the police must provide this information upon request. In assisting the Crown to fulfill its disclosure obligations, it may also be helpful for police services to provide the Crown with a concise and accurate summary of the disciplinary misconduct found or alleged, especially where this would not otherwise be obvious from the nature of the charge.
- If, having properly informed themselves of the relevance standard, the police conclude the misconduct record is not relevant, the police must still notify the Crown of: (i) what is being withheld (i.e., the nature and content of the misconduct) and (ii) the reason for non-disclosure (i.e., why the relevance threshold was not satisfied).
- Once notified that material has been withheld, the Crown may request particulars; the police must provide them to permit the Crown to reassess and, where appropriate, override the initial police assessment.
- When the Crown is put on notice of potentially relevant information, it must make reasonable, feasible inquiries and disclose as appropriate.
- The police may convey privacy concerns, but the Crown determines whether and how to accommodate them. The Crown may, for example, give written notice to the affected officer and invite submissions. The officer could also annotate the McNeil package given to the Crown to explain their concerns. The Crown may accommodate such concerns. However, the governing principle remains relevance, and privacy yields to full answer and defence only to the minimum extent necessary.
- Administrative expungement alters only the record’s disciplinary related status and does not erase the underlying finding for criminal law purposes. The police must maintain any administratively expunged disciplinary records to fulfill its first party disclosure obligations to the Crown and to enable the Crown to discharge its Stinchcombe obligations.
- This system reserves and preserves the obligation of the Crown to make determinations of relevance, a role it routinely fulfills and one on which it is required to act independently, impartially and with fairness. The Crown’s decision is subject to judicial review if challenged.
For more information on this topic, please reach out to the authors, Brandon Barnes Trickett and Tom Nichini.
The authors would like to thank Jordan Picheniuk, summer student, for his valuable contributions to this article.
[i] Edmonton (Police Service) v. McKee, 2026 SCC 24 at paras. 10-15.
[ii] Ibid at para. 21.
[iii] Ibid at para. 78.
[iv] Ibid at para. 84.
[v] Ibid at para. 90.
[vi] Ibid at para. 95.
[vii] Ibid at paras. 103, 110-111.
[viii] Ibid at paras. 115-118.
[ix] Ibid at para. 110.
[x] Ibid at para. 111.
[xi] Ibid at para. 128.
[xii] Ibid at para. 133.
[xiii] Ibid at paras. 134-138.
[xiv] Ibid at para. 139.
[xv] Ibid at para. 141.
[xvi] Ibid at para. 144.
