SUPREME COURT OF CANADA

Citation: Edmonton (Police Service) v. McKee, 2026 SCC 24

Appeal Heard: October 7 and 8, 2025
Judgment Rendered: June 26, 2026
Docket: 41110

Between:
Chief of the Edmonton Police Service
Appellant
and
John McKee and
His Majesty The King in Right of Canada
Respondents

• and -
  Attorney General of Ontario,
  Attorney General of British Columbia,
  Attorney General of Alberta,
  Detective Jared Ruecker,
  Edmonton Police Association,
  British Columbia Civil Liberties Association,
  Toronto Police Association,
  Canadian Police Association,
  Police Association of Ontario,
  Canadian Civil Liberties Association,
  Myron Demkiw, Chief of the Toronto Police Service,
  Criminal Trial Lawyers’ Association,
  Criminal Lawyers’ Association (Ontario) and
  National Police Federation
  Interveners

Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer and Jamal JJ.

Reasons for Judgment:
(paras. 1 to 165)

Martin J. (Wagner C.J. and Karakatsanis, Côté, Rowe, Kasirer and Jamal JJ. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

Chief of the Edmonton Police Service Appellant

v.

John McKee and
His Majesty The King in Right of Canada Respondents

and

Attorney General of Ontario,
Attorney General of British Columbia,
Attorney General of Alberta,
Detective Jared Ruecker,
Edmonton Police Association,
British Columbia Civil Liberties Association,
Toronto Police Association,
Canadian Police Association,
Police Association of Ontario,
Canadian Civil Liberties Association,
Myron Demkiw, Chief of the Toronto Police Service,
Criminal Trial Lawyers’ Association,
Criminal Lawyers’ Association (Ontario) and
National Police Federation Interveners

Indexed as: Edmonton (Police Service) v. McKee

2026 SCC 24

File No.: 41110.

2025: October 7, 8; 2026: June 26.

Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer and Jamal JJ.

on appeal from the court of king’s bench of alberta

Criminal law — Evidence — Disclosure — Police misconduct information — Accused charged with drug offences — Accused learning by happenstance of undisclosed past misconduct by investigating detective — Information on detective’s past misconduct not disclosed by police to Crown because misconduct had been administratively expunged from detective’s record of discipline by operation of provincial regulation — Whether framework governing disclosure in criminal matters applies to administratively expunged records of police misconduct — Police Service Regulation, Alta. Reg. 356/1990, s. 22.

In 2015, a finding of misconduct was made against a police detective. Sometime prior to January 6, 2022, the finding of misconduct was removed from the detective’s record of discipline and destroyed by operation of s. 22 of Alberta’s Police Service Regulation (“PSR”). In May 2022, the accused was charged with several drug, weapons and possession-related offences arising from a police investigation on which the detective was the lead investigator.

In June 2022, the police provided the Crown with a disclosure package for use in the accused’s prosecution. In respect of the detective, the police indicated it had no relevant disciplinary records in its possession. The Crown provided the disclosure package to the accused. The accused later learned, by happenstance, of the existence of a disciplinary record concerning the detective and requested its disclosure. The Crown retrieved the record from an unrelated prosecution file in its possession, reviewed it, and concluded that it should be disclosed. The police disagreed and resisted disclosure of the record. The accused filed an application for disclosure, to which the Crown consented. The application judge granted the application, holding that s. 22 of the PSR does not govern disclosure in criminal proceedings.

Held: The appeal should be dismissed.

Every person charged with a criminal offence in Canada is constitutionally entitled to a fair trial and to make full answer and defence. This guarantee is given practical effect through disclosure: the Crown must provide the defence with all relevant information, including information that could assist the accused to meet the Crown’s case, advance a defence, or otherwise make decisions which could affect the conduct of the defence. 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. The nature and potential relevance of the expunged document is unchanged: it is still a disciplinary finding that may bear on credibility, reliability, investigative integrity, or other live trial issues. A regulatory removal or expungement provision aimed at internal police discipline cannot displace the constitutional foundation of disclosure or convert first party disclosure into third party production. Police must provide not only misconduct materials that are related to the investigative file but also any information of misconduct outside the file that relates to the accused’s ability to meet the Crown’s case, advance a defence, or inform defence conduct.

Canada’s disclosure framework is set out in three main cases, organized by who holds the information and its nature, content and relevance. R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, governs first party disclosure and requires the Crown to disclose all relevant, non-privileged information in its possession. R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, sets out a distinct, more restrictive two-stage process for when an accused seeks records held by third parties. R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, confirms that police misconduct records fall within the first party Stinchcombe regime where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused.

Expunged administrative records of police misconduct fall within the McNeil framework. There is no principled basis to exempt administratively expunged police disciplinary findings from the McNeil principles. McNeil ties the content of first party disclosure to the concept of relevance, without regard to the record’s administrative status in a record of discipline. Nothing in McNeil limits the police’s duty to furnish relevant misconduct information to the Crown based on the disciplinary status of the underlying material. Administrative expungement alters the record’s disciplinary status, not its character as a misconduct finding capable of assisting the defence. What may change, however, is its currency. Currency may affect relevance — older findings may, in a given case, carry less probative force — but it does not impose or provide the rationale for the categorical exclusion of information from first party disclosure. The age of the record may be considered during the Crown’s relevance assessment.

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. Information in a police officer’s file about misconduct may assist the accused in making full answer and defence and forms part of the police-to-Crown first party disclosure package where the misconduct is related to the investigation at issue or could reasonably impact the case against the accused. The Crown then screens the material and decides what should be disclosed to the accused. The Crown is best positioned to make assessments about relevance because the constitutional disclosure duty rests with the Crown, its quasi-judicial mandate demands fair and principled decision-making, and its file-wide perspective enables a reviewable balancing of trial fairness and residual privacy interests. While the police are to participate meaningfully, their role in disclosure is limited to an initial triage of police files for relevance and the transmission of information to the Crown. The prosecuting Crown — rather than the police — is the institutional arbiter of relevance in the criminal disclosure regime.

Police triaging misconduct records should ensure timely disclosure consistent with the following principles. First, relevance governs first party disclosure and sets a low, functional threshold. All material must be provided unless clearly irrelevant, privileged or its disclosure is otherwise governed by law.

Second, police misconduct is relevant in two ways: (i) misconduct tied to the investigation at bar is per se relevant and must be provided to the Crown; and (ii) 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. Misconduct under any federal or provincial enactment may be relevant and must be assessed accordingly.

Third, disclosure requires more than criminal record type information and goes beyond the “Ferguson Five” categories, discussed in McNeil, for which automatic disclosure by the police was recommended. The “Ferguson Five” categories require modifications and 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” categories aid triage but are not all that must be considered. Misconduct records that do not neatly fit must still be assessed for relevance. The substance, not form, of the information controls, and serious misconduct is defined by its relationship to relevance. If the information concerns conduct which relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence, it qualifies as serious misconduct and the police are required to transmit such information to the Crown.

Fourth, 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. Police may also 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.

Fifth, police will generally provide records relating to findings of misconduct to the Crown; withholding such information on the basis that it is not relevant is likely to be exceptional. 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; and (ii) the reason the relevance threshold was not satisfied.

Sixth, 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. In some cases, it will be apparent on the face of the record that the information is not relevant, and the Crown may accept the police assessment. In other cases, the basis for the assessment may be unclear or unconvincing. In such instances the Crown may seek further particulars and, if satisfied the information is relevant, the Crown will disclose it to the defence. Thus, as between the police and the Crown, the Crown makes the ultimate determination about what relevant information should be given to the defence.

Seventh, when the Crown is put on notice of potentially relevant information, it must make reasonable, feasible inquiries and disclose as appropriate. Notice may come from defence counsel, another Crown prosecutor, media reporting, or the individual Crown’s personal memory or common knowledge in the prosecutor’s workplace. The operative consideration is the Crown’s awareness of information that may assist the defence; the source of that awareness is secondary. There are only two circumstances in which the Crown’s duty to inquire, once triggered, need not be carried through: (i) the Crown need not inquire where the notice is unfounded — that is, so lacking in credibility, specificity, or nexus to the issues that no reasonable prosecutor would consider it capable of reasonably impacting the case; and (ii) even when notice is founded, the duty ends if it is not reasonably feasible for a diligent prosecutor to obtain the material in the circumstances. Where notice is founded and it is reasonably feasible to obtain the material, prosecutorial practice requires targeted efforts to locate and disclose the information. The first step the Crown must take is to request the material from the police. If the police do not possess the material, cannot locate it or refuse to provide it, the Crown may then seek it from another prosecution file within its service. Where either limiting condition applies, the Crown should promptly explain its position to the defence so the accused can pursue whatever course is in their best interests.

Eighth, the police may convey privacy concerns relating to the disclosure of misconduct, but the Crown determines whether and how to accommodate them. Police cannot unilaterally withhold relevant information from first party disclosure based on their assessment of their privacy interests. The ability to operationalize procedural safeguards to protect officer privacy is the sole responsibility of the Crown, who must determine relevance and ensure that disclosure obligations are met. The governing principle remains relevance, and privacy yields to full answer and defence only to the minimum extent necessary.

Ninth, administrative expungement alters only the record’s disciplinary related status and does not erase the underlying finding for criminal law purposes. An administrative expungement removes the punishment, contravention or action from the officer’s record of discipline and restricts its use in future disciplinary proceedings, but it neither retroactively eliminates the finding nor permits the officer to deny it, and it does not immunize the officer from being asked on the stand whether there was a finding of misconduct. 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.

Tenth, this system reserves and preserves the obligation of the Crown to make determinations of relevance, a role which requires it to act independently, impartially and with fairness. The Crown’s decision is subject to judicial review if challenged.

In the instant case, s. 22 of the PSR required the misconduct information at issue to be “removed” from the detective’s record of discipline and “destroyed”. However, s. 22 does not authorize police disciplinary records to be removed and destroyed permanently and irreversibly. Interpreting “destroyed” as permanent erasure for all purposes would impermissibly allow the regulation to defeat constitutional disclosure principles. Section 22 applies only to disciplinary-related proceedings in respect of police officers and does not govern criminal disclosure obligations. The Crown did retrieve and review the finding of misconduct at issue and concluded that the misconduct was serious, had a realistic bearing on the detective’s credibility and must be disclosed on any matter in which that detective had more than peripheral involvement. Once the Crown reached that view, the matter properly fell within Stinchcombe and McNeil and the Crown was obliged to disclose it as first party disclosure.

Cases Cited

Applied: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326; R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66; considered: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35; referred to: R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244; R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80; R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307; R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451; R. v. Girimonte (1997), 1997 CanLII 1866 (ON CA), 121 C.C.C. (3d) 33; R. v. Laporte (1993), 1993 CanLII 9145 (SK CA), 84 C.C.C. (3d) 343; R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475; R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668; Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835; R. v. Durette, 1994 CanLII 123 (SCC), [1994] 1 S.C.R. 469; R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; La Presse inc. v. Quebec, 2023 SCC 22; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27; Bristol-Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26, [2005] 1 S.C.R. 533; R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141; Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3; R. v. Foreshaw, 2024 ONCA 177, 170 O.R. (3d) 401; R. v. Letourneau, 2009 ABPC 222, 11 Alta. L.R. (5th) 348; R. v. Perreault, 2010 ABQB 714, 36 Alta. L.R. (5th) 110; R. v. Polny (2009), 2009 CanLII 81890 (AB QB), 488 A.R. 253; R. v. Steele, 2010 ABQB 39, 488 A.R. 296; Edmonton Police Association v. Edmonton (City), 2017 ABCA 355, 58 Alta. L.R. (6th) 318; Rysdyk v. Slaney, 2023 ABCA 305, 492 D.L.R. (4th) 240; R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600; P. (D.) v. Wagg (2004), 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229; Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16; Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759; Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517; Amchem Products Inc. v. Workers’ Compensation Board (B.C.) (1992), 192 N.R. 390; World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207; Association de médiation familiale du Québec v. Bouvier, 2021 SCC 54, [2021] 3 S.C.R. 805; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; R. v. Taylor, 2008 NSCA 5, 230 C.C.C. (3d) 504.

Statutes and Regulations Cited

By-law respecting the internal discipline of members of the specialized anti-corruption police force, CQLR, c. P-13.1, r. 2.001, s. 40.

By-law respecting the internal discipline of members of the Sûreté du Québec, CQLR, c. P-13.1, r. 2.01, s. 91.

By-law respecting the internal discipline of police officers of Ville de Montréal, CQLR, c. P-13.1, r. 2.02, s. 45.

Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 24(1).

Code of Professional Conduct and Discipline Regulations, P.E.I. Reg. EC1026/25, s. 20.

Code of Professional Conduct Regulation, N.B. Reg. 2007-81, s. 4.

Community Safety and Policing Act, 2019, S.O. 2019, c. 1, Sch. 1, ss. 200(1), 207.

Criminal Code, R.S.C. 1985, c. C-46, ss. 278.1 to 278.91, 748.

Criminal Records Act, R.S.C. 1985, c. C-47.

Expungement of Historically Unjust Convictions Act, S.C. 2018, c. 11, s. 5(1).

Law Enforcement Review Act, C.C.S.M., c. L75, s. 32(5).

Letters Patent Constituting the Office of Governor General of Canada (1947), in Canada Gazette, Part I, vol. 81, p. 3104, s. XII [reproduced in R.S.C. 1985, App. II, No. 31].

Municipal Police Discipline Regulations, 1991, R.R.S., c. P-15.01, Reg. 4, s. 27.

Police Act, R.S.A. 2000, c. P-17, Part 5.

Police Act, R.S.B.C. 1996, c. 367, s. 180(8).

Police Conduct and Oversight Regulation, Alta. Reg. 263/2025, s. 36.

Police Regulations, N.S. Reg. 230/2005, s. 58.

Police Service Regulation, Alta. Reg. 356/1990 [rep. 263/2025, s. 44], ss. 2, 5, 21, 22, 26(1), Sch.

Royal Newfoundland Constabulary Regulations, C.N.L.R. 802/96, s. 8.

Supreme Court Act, R.S.C. 1985, c. S-26, ss. 40, 62(3).

Authors Cited

Alberta. Crown Prosecution Service. Crown Prosecutors’ Manual: Decision to Prosecute, May 4, 2022 (online: https://open.alberta.ca/dataset/8fa0bd3b-2bbe-400d-85d2-3ba8101d83e2/resource/70bbab1d-9c31-4649-8b9a-dc9d2c3f73b8/download/jus-cpm-attorney-general-decision-to-prosecute-2023-03.pdf; archived version: https://www.scc-csc.ca/cso-dce/2026SCC-CSC24_1_eng.pdf).

Canada. Parole Board. Royal Prerogative of Mercy Ministerial Guidelines, January 18, 2024 (online: https://www.canada.ca/content/dam/pbc-clcc/documents/publications/Royal-Prerogative-Of-Mercy-Ministerial-GuidelinesEN-Directives-ministerielles-Prerogative-royale-clemenceFR.pdf; archived version: https://www.scc-csc.ca/cso-dce/2026SCC-CSC24_2_eng_fra.pdf).

Cambridge Dictionary (online: https://dictionary.cambridge.org/), “serious”.

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworth, 1983.

Merriam-Webster Dictionary (online: https://www.merriam-webster.com/), “serious”.

Ontario. Toronto Police Service. Review and Recommendations Concerning Various Aspects of Police Misconduct, vol. I, by George Ferguson. Toronto, 2003.

Sullivan, Ruth. The Construction of Statutes, 7th ed. Toronto: LexisNexis, 2022.

APPEAL from a decision of the Alberta Court of King’s Bench (Macklin J.), 2023 ABKB 698, [2023] A.J. No. 1298 (Lexis), 2023 CarswellAlta 3044 (WL), allowing an application for disclosure of information of police misconduct. Appeal dismissed.

Megan Hankewich and David Lynass, for the appellant.

Daniel J. Song, K.C., and Tania Shapka, for the respondent John McKee.

Éric Marcoux and Shelley Tkatch, K.C., for the respondent His Majesty The King in Right of Canada.

Milan Rupic, for the intervener Attorney General of Ontario.

Shannon D. Gerrie and Susanne E. Elliott, K.C., for the intervener Attorney General of British Columbia.

Iwona Kuklicz, for the intervener Attorney General of Alberta.

Adam Cembrowski, for the interveners Detective Jared Ruecker and Edmonton Police Association.

Caroline Senini and Spencer Taylor-Robins, for the intervener British Columbia Civil Liberties Association.

Myles Anevich and Peter Ketcheson, for the interveners Toronto Police Association and Canadian Police Association.

Lawrence Gridin and Flora Vineberg, for the intervener Police Association of Ontario.

Chris Rudnicki and Theresa Donkor, for the intervener Canadian Civil Liberties Association.

Brandon Chung, for the intervener Myron Demkiw, Chief of the Toronto Police Service.

Caitlin A. Dick and Michael Bates, K.C., for the intervener Criminal Trial Lawyers’ Association.

Frank Addario and Heather Lawson, for the intervener Criminal Lawyers’ Association (Ontario).

Andrew Montague-Reinholdt and Adrienne Fanjoy, for the intervener National Police Federation.

The judgment of the Court was delivered by

Martin J. —

TABLE OF CONTENTS

Paragraph

I. Introduction

[1]

II. Facts

[10]

III. Procedural History

[16]

IV. Statement of Issues

[21]

V. Analysis

[22]

A. Which Disclosure Framework Governs Administratively Expunged Police Misconduct Records?

[22]

(1) Disclosure Has a Constitutional Foundation

[23]

(2) An Overview of the Disclosure Framework

[27]

(a) First Party Disclosure: The Stinchcombe Framework

[29]

(b) Third Party Disclosure: The O’Connor Framework

[36]

(c) Disclosure of Police Disciplinary Records: The McNeil Framework

[49]

(d) Summary

[58]

(3) The McNeil Framework Applies to Administratively Expunged Records

[60]

(a) Administrative Expungements and Section 22 of the PSR

[63]

(b) Expunged Administrative Records Fall Within the McNeil Framework

[79]

B. What Qualifies as Relevant Information of Police Misconduct?

[85]

(1) General Principles of Relevance

[86]

(2) The Definition of Relevance

[89]

(3) Determining Relevance

[91]

(4) The Definition of “Serious Misconduct”

[96]

(5) Disclosure Requires More Than Criminal Charge Information and Goes Beyond the Ferguson Five

[104]

(6) The Role of Police Privacy Concerns

[113]

C. What Are the Respective Roles of the Police and the Crown for the Purposes of Disclosure?

[123]

(1) How Police Can Discharge Their Duty to Participate Meaningfully in Disclosure

[127]

(2) The Crown’s Role in the Administration of Justice

[134]

(3) The Crown’s Duty to Inquire

[139]

(a) What May Qualify as Notice?

[140]

(b) Exceptions to the Duty to Inquire

[143]

(c) Two Functions of the Duty to Inquire

[145]

D. Guidance on Disclosure

[148]

E. Application

[149]

VI. Motion to File Further Evidence

[153]

VII. Costs

[157]

VIII. Conclusion

[165]

I. Introduction

1Every person charged with a criminal offence in Canada is constitutionally entitled to a fair trial and to make full answer and defence. Under the Canadian Charter of Rights and Freedoms and at common law, that guarantee is given practical effect through disclosure: the Crown must provide the defence with all relevant, non-privileged information in its possession or control. This includes information that could assist the accused to meet the Crown’s case, advance a defence, or otherwise make decisions which could affect the conduct of the defence. This appeal concerns how and when an accused may obtain the disclosure of information of police misconduct when certain entries have been administratively expunged from the officer’s record of discipline.

2The respondent, John McKee, sought disclosure of the disciplinary records of any officer involved in the 2022 case against him. There had been a 2015 Decision of Hearing (“Decision”) which involved a finding of misconduct against the lead investigating detective. The Edmonton Police Service (“EPS”) informed the Crown, and the Crown informed the defence, that there was no disciplinary record for this individual. The entry had been removed from the detective’s record of discipline by operation of s. 22 of the Police Service Regulation, Alta. Reg. 356/1990 (“PSR”), a regulation under the Police Act, R.S.A. 2000, c. P-17, which administratively expunges dated findings of misconduct from a police officer’s record of discipline.¹

3The EPS had provided the Crown with a copy of the Decision in an unrelated prosecution, a fact unknown to the individual Crown assigned to Mr. McKee’s case. The defence later learned, by happenstance, that the Crown had a disciplinary record concerning the detective and requested its disclosure. The assigned Crown retrieved the Decision from the unrelated prosecution file, reviewed it, and concluded the misconduct was serious, had a realistic bearing on the detective’s credibility, and must be disclosed on any matter where his involvement was more than peripheral. The EPS disagreed and resisted disclosure of the expunged record.

4Canada’s disclosure framework is set out in three main cases, organized by who holds the information and its nature, content and relevance. R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, governs first party disclosure and requires the Crown to disclose all relevant, non-privileged information in its possession. R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, sets out a distinct, more restrictive two-stage process for when an accused seeks records held by third parties. R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, confirms that police misconduct records fall within the first party Stinchcombe regime where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused.

5Although the Crown and the police are institutionally distinct, McNeil recognized that, for disclosure purposes, the police act on the same first party footing as the Crown. The police must meaningfully participate by identifying and transmitting “obviously relevant” information to the Crown which includes investigative and disciplinary material (known as a “McNeil package”). The Crown then screens the material and decides what should be disclosed to the accused. The Crown’s decision is subject to challenge and review by the courts.

6The appellant Chief of the Edmonton Police Service (“Chief of Police”) argues that a different disclosure regime applies where misconduct information has been administratively expunged under s. 22 of the PSR (“PSR s. 22”), which requires that such entries be “removed” and “destroyed” and “not be used or referred to in any future proceedings respecting that police officer”. On this view, the expunged record is not relevant in a subsequent criminal proceeding and cannot be disclosed as first party material. Instead, the accused must apply to a court and seek expunged disciplinary entries through the third party production process.

7With respect, I reject that interpretation of PSR s. 22 and its retreat from the settled law in McNeil. Properly interpreted, this provision provides only that the administratively expunged entry cannot be used against the officer in subsequent disciplinary-related proceedings. That administrative step does not alter, let alone dictate, the constitutional dimensions of disclosure for criminal law purposes, nor does it change the nature, content and relevance of the information in a criminal proceeding. McNeil continues to apply to all police misconduct records, including those that have been administratively expunged from a police officer’s record of discipline.

8Thus, under McNeil and in the context of first party disclosure, the police triage misconduct files for “obvious relevance” and transmit them to the Crown. It is the Crown who reviews, assesses, inquires as needed, decides whether the legal standard for relevance is met, and discloses in accordance with its Stinchcombe obligations. The Crown is best positioned to make assessments about relevance because the constitutional disclosure duty rests with the Crown, its quasi-judicial mandate demands fair and principled decision-making, and its file-wide perspective enables a reviewable balancing of trial fairness and residual privacy interests.

9Police must provide not only misconduct materials that are related to the investigative file but also any information outside the file that is “obviously relevant” — that is, the information relates to the accused’s ability to meet the Crown’s case, advance a defence, or inform defence conduct. Relevance is a low, utility-based threshold. Accordingly, police will generally provide records relating to findings of misconduct to the Crown; withholding such information from the Crown on the basis that it is not relevant is likely to be exceptional. If police withhold information, they must advise the Crown what was withheld and why it was withheld. To satisfy its Stinchcombe obligations, the Crown may require particulars from the police, which must be provided, to ensure the Crown is well placed to conduct an independent review of the relevance of the misconduct materials for disclosure purposes. Thus, as between the police and the Crown, the Crown makes the ultimate determination about what relevant information should be given to the defence. The Crown will then provide disclosable information to the defence in the normal course and the defence retains its general ability to question its sufficiency, including by seeking a review of the Crown’s decision (“Stinchcombe review”) or by taking an O’Connor application.

II. Facts

10The record contains very little in the way of formally tendered evidence. However, while the evidentiary record is scant, there is no dispute between the parties as to the following. Jared Ruecker (“Detective”) was employed as a detective with the EPS and headed up the investigations that gave rise to the charges against Mr. McKee. In 2014, he faced allegations of misconduct. A finding of misconduct on that matter was subsequently made against him in a “Decision of Hearing” released in July 2015. The EPS provided the Decision to the Crown that same month, in relation to a prosecution involving a different accused. Crown counsel redacted the document and disclosed it to the defence. That Decision stayed in the Crown’s possession and remained on its file for that particular prosecution.

11Sometime prior to January 6, 2022, the finding of misconduct in the Decision was “removed” from the Detective’s record of discipline and “destroyed”, by operation of PSR s. 22.

12In November 2021, the Detective became the lead investigator on Project Emission — an investigation into organized crime and drug trafficking in Edmonton. In May 2022, Mr. McKee was charged with several drug, weapons and possession-related offences arising from that investigation. The defence requested disclosure from the Crown and expressly asked for any McNeil records, meaning any disciplinary records of police officers involved in the case against him.

13On June 9, 2022, the EPS provided the Crown with a McNeil package for use in the prosecution of Mr. McKee. In respect of the Detective, the EPS indicated that it had no relevant disciplinary records in its possession, stating: “McNeil Package: None (current as at Jan 6, 2022 and June 9, 2022)” (2023 ABKB 698, at para. 8). The Crown provided the initial disclosure package, along with the EPS McNeil package, to the defence.

14On July 11, 2023, Mr. McKee’s counsel learned, by chance, that the Crown possessed the disciplinary records for the Decision and asked for them. Two days later, the Crown confirmed:

1. The Crown possessed disciplinary records regarding the Detective;

2. Professional Standards Branch of the EPS had advised the Crown that the records had been “expunged” by operation of the Police Act;

3. The misconduct itself may be potentially relevant and subject to disclosure;

4. Upon review, the Crown took the position that the details of the misconduct were serious and had a realistic bearing on the Detective’s credibility and therefore must be disclosed on any matter in which the Detective had more than peripheral involvement;

5. The EPS opposed disclosure of the “expunged” records; and

6. The Crown would consent to an application for disclosure if one was brought by the respondent.

15Mr. McKee filed an application for disclosure in the Court of King’s Bench of Alberta against the Crown, seeking an order treating the Decision as first party information to be disclosed under Stinchcombe on the basis that administrative expungement under PSR s. 22 does not preclude its disclosure in a criminal matter.

III. Procedural History

16The disclosure application was heard over two days before Macklin J., the application judge. The Crown consented to disclosure. The Chief of Police, as well as the Detective and the Edmonton Police Association, were granted intervener status. They were represented by counsel and adduced evidence about how the EPS treated disciplinary misconduct records. The affidavit of Betty Mathews of October 16, 2023, fully explained the process and how files relating to “proven misconduct of a subsequently expunged disciplinary record” are not destroyed, but rather are “moved to a historical/inactive folder” in a separate electronic system managed by the EPS’s Professional Standards Branch. Consequently, even though PSR s. 22 speaks of “destroying” misconduct records, the EPS actually retains a mirrored copy of all expunged findings.

17The interveners opposed disclosure of the expunged record because the Decision was removed from the Detective’s record of discipline pursuant to PSR s. 22. That section establishes the province’s administrative expungement scheme for disciplinary entries and states that, after a specified time period elapses without further entries, “any record of the punishment, the contravention or the action taken” must be removed from the officer’s record of discipline and “destroyed”, and the entry must “not be used or referred to in any future proceedings respecting that police officer”. They argued that because of the operation of PSR s. 22, the Decision was no longer relevant or subject to first party disclosure and could only be accessed, if at all, under the third party O’Connor regime.

18The application judge held that PSR s. 22 does not govern disclosure in criminal proceedings and granted Mr. McKee’s application for disclosure of the Decision (2023 ABKB 698). He reasoned that the purpose of the Police Act and PSR was to provide for adequate and effective policing. The phrase in PSR s. 22 barring use of expunged information “in any future proceedings respecting that police officer” only prevents a finding of misconduct from being used against the officer for disciplinary purposes. It was not meant to insulate the officer from all consequences of their personal misconduct, did not retroactively eliminate a finding of police misconduct or safeguard the officer from being questioned about the finding of misconduct.

19Distinguishing earlier cases in light of subsequent legislative changes and factual distinctions, he rejected analogies between administrative expungements and “true” pardons. He found the Decision was “information of misconduct”, that it was relevant and material despite its administrative expungement, and as first party information it ought to be disclosed by the Crown and the EPS.

20No appeal was taken to the Court of Appeal of Alberta from Macklin J.’s decision. The Chief of Police sought leave to appeal that interlocutory decision to this Court pursuant to s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26.

IV. Statement of Issues

21The Chief of Police asks this Court to set aside the application judge’s order and to clarify the disclosure obligations when police misconduct from an unrelated investigation has been administratively expunged from an officer’s record of discipline. The arguments raised by the parties are best addressed by the following questions:

1. Which disclosure framework governs the treatment and disclosure of administratively expunged police misconduct records?

2. What qualifies as relevant information of police misconduct?

3. What are the respective roles of the police and the Crown for the purposes of disclosure?

V. Analysis

A. Which Disclosure Framework Governs Administratively Expunged Police Misconduct Records?

22To fully appreciate and properly assess the arguments put forward, it is first necessary to understand the constitutional basis for disclosure of information to the accused and the different categories of disclosure established in the jurisprudence.

(1) Disclosure Has a Constitutional Foundation

23Canada’s disclosure regime is rights-based and rests on a constitutional foundation. At the core of this regime are ss. 7 and 11(d) of the Charter, which safeguard the accused’s right to make full answer and defence in a criminal trial. The Crown’s duty to disclose is the corollary of the “right” of the accused to disclosure, a principle of fundamental justice protected under s. 7 of the Charter (O’Connor, at para. 104; McNeil, at para. 14; R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 22; R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80, at para. 37). This Court has repeatedly emphasized that disclosure rules exist to safeguard the integrity of the truth-seeking process and public confidence in the administration of justice (see Stinchcombe; O’Connor; Carosella, at para. 56; Dixon).

24What must be disclosed is directly tied to what is reasonably capable of affecting the fairness of the adjudicative process. An accused demonstrates an impairment of the right to disclosure by demonstrating “a reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence” (Dixon, at para. 22 (emphasis deleted)). The relevance of the information to these ends is a key consideration.

25While the rights of the accused are at the core of the disclosure analysis, other interests may also be engaged. Witnesses, including police officers, may have privacy interests in the information sought. Courts are also required to mediate among competing constitutional and societal interests, including privilege, safety, and the integrity of ongoing investigations. They have done so through structured relevance thresholds and proportional balancing of rights and interests. When necessary, courts assess whether any countervailing interests of witnesses can be sufficiently protected through measures such as redactions, delayed or staged disclosure, confidentiality undertakings, or other tailored conditions that intrude no more than necessary on the accused’s ability to make full answer and defence.

26In the next section I explain how three decisions — Stinchcombe, O’Connor and McNeil — provide the basic organizing principles of Canada’s disclosure regime. While each case establishes a distinct category for disclosure, all three build on its constitutional foundation and recognize that: (a) disclosure is an incident of the accused’s constitutional right to make full answer and defence and of the public interest in fair trials; (b) relevance is the lodestar because it operationalizes this constitutional protection and purpose; and (c) while the accused’s rights often prevail in the rights balancing calculus, they may not be the only interests at stake.

(2) An Overview of the Disclosure Framework

27The principles underlying Canada’s disclosure regime differ based on who holds the targeted information and its nature, content and relevance. Together, they give disclosure concrete form by specifying who must disclose, what counts as relevant, how competing interests are accommodated, and when first party duties yield to third party procedures. Stinchcombe governs first party disclosure and requires the prosecuting Crown to disclose all relevant, non-privileged material in its possession or control. O’Connor establishes a two-stage, court-based route for production of records held by third parties. McNeil bridges the gap between first party disclosure and third party production by obliging police to provide the Crown with “obviously relevant” material and by imposing a duty on the Crown to inquire when put on notice of potentially relevant material.

28The issue in this appeal is how administratively expunged records of police misconduct fit within this framework.

(a) First Party Disclosure: The Stinchcombe Framework

29Stinchcombe signalled a paradigm shift in defence disclosure by “transforming a professional courtesy into a formal obligation” (O’Connor, at para. 171). The accused’s constitutional right to disclosure compels the Crown to provide all relevant material in its possession, whether or not the Crown intends to adduce it at trial. The obligation extends to both inculpatory and exculpatory evidence (Stinchcombe, at pp. 343-44).

30The scope of the Crown’s duty to disclose is guided by relevance which “must be assessed in relation both to the charge itself and to the reasonably possible defences” (R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 59). The concept of relevance has been defined broadly in R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451, at p. 467:

One measure of the relevance of information in the Crown’s hands is its usefulness to the defence: if it is of some use, it is relevant and should be disclosed — Stinchcombe, supra, at p. 345. This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.

31The threshold defined by the courts of being “of some use” to the defence favours the disclosure of evidence. The duty on the Crown to disclose what is relevant leaves little room to withhold information because “the threshold requirement for disclosure is set quite low” (Dixon, at para. 21). The Crown’s discretion to withhold applies only to that which is “clearly” or “plainly” irrelevant (Taillefer, at paras. 59-60). Relevant information in the first party production context includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence (Stinchcombe, at pp. 343-44). Where such a reasonable possibility exists, the Crown must disclose it (Dixon, at para. 21).

32Stinchcombe imposes an automatic disclosure obligation on the Crown for the fruits of the investigation, although it admits of limited exceptions. The Crown retains discretion in three areas: withholding of information, manner of disclosure, and timing of disclosure (p. 339). The Crown may withhold information from the accused if clearly irrelevant, privileged, or its disclosure is otherwise governed by law. Its discretion over timing and manner of disclosure also permits adjustments where disclosure in the usual course could result in serious prejudice to the public interest or harm to a person (ibid.; McNeil, at para. 18).

33The Crown’s discretion to withhold or delay disclosure is reviewable by the trial judge when challenged by the defence through a Stinchcombe review (pp. 340-41). Because full disclosure of relevant information is the default rule, the Crown must justify any refusal. Stinchcombe also makes clear that initial disclosure must occur before the accused is required to elect a mode of trial or enter a plea (p. 342). Where a dispute over disclosure arises before an election has been made and the matter has not yet been set for trial, a judge of a superior court of criminal jurisdiction may review the adequacy of Crown disclosure under s. 24(1) of the Charter (see, e.g., R. v. Girimonte (1997), 1997 CanLII 1866 (ON CA), 121 C.C.C. (3d) 33 (Ont. C.A.), at paras. 16-18, per Doherty J.A.; R. v. Laporte(1993), 1993 CanLII 9145 (SK CA), 84 C.C.C. (3d) 343 (Sask. C.A.), at p. 348; see also R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 52).

34On review, the trial judge applies the principle that information should not be withheld where there is a reasonable possibility that doing so would impair the accused’s right to make full answer and defence, absent a valid privilege. Even where privilege applies, it may be overridden if it would unreasonably limit that right (Stinchcombe, at p. 340). The judge may also review decisions to withhold disclosure on grounds of witness safety, informer protection, or relevance. Although such disputes should be rare, they are resolved through submissions, document inspection and viva voce evidence. A voir dire is often the proper forum for resolving these matters (p. 341).

35The Crown’s obligation to disclose the fruits of the investigation does not mean that various participants — including complainants, witnesses, and police officers — have no residual privacy interests in the investigative materials in the Crown’s file (McNeil, at para. 19; R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668). While I later address how any such privacy interests of officers can be accommodated practically, Stinchcombe made clear that the Crown’s disclosure obligation rests on two assumptions: that material in possession of the prosecuting Crown is relevant to the accused’s case, and that it will likely form the basis of the case against the accused (McNeil, at para. 20).

(b) Third Party Disclosure: The O’Connor Framework

36In O’Connor, the Court addressed a very different issue: how the accused may seek production of information not in the possession of the Crown but held by third parties such as doctors or therapists. Unlike the Crown, third parties have no obligation to assist the defence and enjoy their own rights to privacy and equality, as well as constitutional protections against unreasonable search and seizure. In this setting, competing rights can be especially acute.

37Such cases call for a particular constitutional balancing which safeguards full answer and defence while calibrating disclosure with necessary limits when required. The accused’s rights must “co-exist with other constitutional rights, rather than trample them”; privacy and equality are not to be subordinated wholesale to trial fairness (O’Connor, at para. 130, citing Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at p. 877). In O’Connor, the Court crafted a framework attentive to three constitutional rights: the right to full answer and defence; the right to privacy; and the right to equality without discrimination. The aim was trial fairness without conferring a “fishing licence” into the personal lives of others (O’Connor, at para. 107). Section 7 of the Charter requires a reasonable, structured system of “pre-authorization” before a court may sanction intrusion into private information (para. 119).

38O’Connor articulated a proportionality-based approach that balances the salutary effects of production on the accused’s right to make full answer and defence and the deleterious effects on the party whose private records are being produced (para. 132). While Parliament has since enacted legislation to govern disclosure of records containing the personal information of complainants and witnesses in sexual assault proceedings (the “Mills regime”; see Criminal Code, R.S.C. 1985, c. C-46, ss. 278.1 to 278.91), O’Connor’s common law standard remains the route for accessing third party records that fall beyond the Crown’s first party disclosure obligations under Stinchcombe (McNeil, at paras. 26 and 30-33; Mills).

39Under O’Connor, the process involves two stages: (1) an initial showing of “likely relevance”, followed by (2) judicial inspection and a second‑stage balancing of competing interests (McNeil, at paras. 26-27 and 33-35).

40At the first stage, the applicant must show that the targeted records are “likely relevant”. If this threshold is met, the court may order production for inspection (McNeil, at paras. 7 and 28). This threshold exists because third party production is different from first party disclosure: under Stinchcombe, the Crown’s obligation rests on the assumption of relevance that cannot be made about records held by third parties. Accordingly, the applicant must justify the use of state compulsion to secure production (McNeil, at para. 28; O’Connor, at paras. 21-22).

41In the third party production context, “likely relevant” is a “significant burden” that demands more than the meaning of relevance used in the first party disclosure context; it asks whether there is “a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify” (O’Connor, at paras. 22 and 24 (emphasis deleted)). At the same time, while the threshold is significant, it is not onerous. Accused persons should not be forced to provide a detailed roadmap of how they will deploy records they have not yet seen — sometimes referred to as a “Catch-22” problem (McNeil, at paras. 29 and 33; O’Connor, at para. 25, citing R. v. Durette, 1994 CanLII 123 (SCC), [1994] 1 S.C.R. 469, at p. 499). By contrast, in the first party disclosure context, relevance is framed by whether material may be useful to the defence; a broader, utility-oriented conception reflected in the Court’s disclosure jurisprudence (Egger, at p. 467; R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727, at para. 22).

42The “likely relevant” threshold performs a gatekeeping function: it keeps trials focused on the real issues and prevents the squandering of scarce judicial resources on fishing expeditions for irrelevant evidence. As O’Connor emphasizes, the court must play a meaningful role in deterring speculative, unmeritorious, and time-consuming production requests (McNeil, at para. 31; O’Connor, at para. 24, citing Chaplin, at para. 32). The threshold guards against a Catch-22 that would compromise full answer and defence and it helps maintain the system’s truth-seeking orientation.

43Where “likely relevance” is shown at the first stage, the third party record holder may be ordered to produce the records to the court for inspection, after which the judge determines whether production to the applicant should follow. This second stage “essentially requires a court to conduct a balancing of the third party’s privacy interest in the targeted documents, if any, and the accused’s interest in making full answer and defence” (McNeil, at para. 7; O’Connor, at paras. 134-37).

44Determining whether a reasonable expectation of privacy attaches to the records is a contextual inquiry that can be complex and time-consuming, with real potential to distract from, and delay, the trial of the accused. McNeil recognized this practical concern and cautioned that courts should avoid letting privacy inquiries derail the core focus of the criminal proceeding (para. 39). Writing for the Court, Charron J. clarified how this balancing exercise operates and identified a useful starting point: relevance comes first and takes precedence (paras. 35 and 41). As she observed, “[t]his approach allows the court to remain focussed on the trial of the accused and, given the competing interests at stake, the relevancy assessment will usually be largely determinative of the production issue” (para. 39).

45Two propositions flow from the prioritization of relevance. First, if upon inspection the information proves to be “clearly irrelevant”, then “the application can be summarily dismissed” (McNeil, at para. 40 (emphasis deleted)). Second, if the information proves relevant and no competing reasonable expectation of privacy is shown, “there is no balancing of interests left to perform” and production follows (para. 37).

46Where competing interests do exist, McNeil underscores that the primacy of full answer and defence will, in most cases, carry the day once “likely relevance” is established:

. . . if the claim of likely relevance is borne out upon inspection, the accused’s right to make full answer and defence will, with few exceptions, tip the balance in favour of allowing the application for production. . . . [A]bsent an overriding statutory regime governing the production of the record in question, a third party privacy interest is unlikely to defeat an application for production. [Emphasis deleted; para. 41.]

47Put simply, once “likely relevance” is demonstrated, the second stage balancing becomes “easily performed”, and the practical differences between O’Connor and first party Stinchcombe disclosure largely disappear (McNeil, at para. 42). The Court explained:

Once a court has ascertained upon inspection that third party records are indeed relevant to the accused’s case, in the sense that they pertain to an issue in the trial as described above, the second stage balancing exercise is easily performed. In effect, a finding of true relevance puts the third party records in the same category for disclosure purposes as the fruits of the investigation against the accused in the hands of the prosecuting Crown under Stinchcombe. It may be useful to pose the question in this way: If the third party record in question has found its way into the Crown prosecutor’s file, would there be any basis under the first party Stinchcombe disclosure regime for not disclosing it to the accused?

(McNeil, at para. 42)

48In practical terms, under O’Connor, the court should proceed through a relevance-first lens: where inspection confirms “likely relevance” and “true relevance”, disclosure will ordinarily be ordered, tailored by appropriate redactions and conditions to respect any residual privacy interests without diluting the accused’s fair trial rights (McNeil, at para. 46). This approach keeps the proceeding anchored on the main event: the trial of the accused.

(c) Disclosure of Police Disciplinary Records: The McNeil Framework

49In McNeil, the Court explicitly addressed how information of police misconduct was to be treated for disclosure purposes. At issue was the production of police disciplinary records and criminal investigation files relating to the Crown’s main police witness against the accused.

50In classifying police misconduct records, the Court understood two important premises: police are important state actors who are given unique, extensive and invasive powers to serve and protect the public, and they are also employees bound by legal and professional obligations. When police act beyond these limits, various disciplinary processes exist to govern complaints, investigations, hearings, findings of misconduct, and penalties. Findings of police misconduct, together with the underlying records and penalties, are recorded on the officer’s file, which is generally held by the employing police service. As explained in McNeil, the information in an officer’s file about misconduct, even misconduct disclosed in a different case, may assist the accused in making full answer and defence, notably to challenge the testimonial credibility or reliability of the particular officer.

51Mr. McNeil initially sought the officer’s disciplinary records through an O’Connor application, considering it the proper route. The Court was asked to determine the appropriate framework for the disclosure of police misconduct: Stinchcombe first party or O’Connor third party production.

52McNeil reinforced that the constitutional foundation of disclosure governs not only what the Crown must disclose, but also how the state must organize itself to ensure disclosure occurs. The Court bridged the gap between first party disclosure and third party production by formalizing: (a) the Crown’s duty to inquire once put on notice of potentially relevant material (McNeil, at paras. 48-51); and (b) the police’s corollary duty to disclose all material pertaining to the investigation and to proactively alert the Crown to relevant misconduct (paras. 23-24 and 52-60). The Court confirmed that records of serious police misconduct by officers involved in the investigation form part of the police‑to‑Crown first party disclosure package where the misconduct is related to the investigation or could reasonably impact the case against the accused (paras. 15 and 22-23). Only materials that do not fall within the scope of this first party disclosure package remain subject to the O’Connor third party regime (McNeil, at paras. 15 and 25-27).

53McNeil explains that the Stinchcombe disclosure rules apply to police records by imposing an express duty on the police to disclose relevant information to the Crown. The Court explained how the general duty to investigate crime falls on the police, not the Crown (McNeil, at para. 23). The fruits of the investigation against an accused person will generally have been gathered, and any resulting criminal charge laid, by the police. While institutionally distinct, the investigating police force is not a third party for purposes of disclosure but “acts on the same first party footing as the Crown” (para. 14).

54Although records held by third parties, including other Crown entities (federal and provincial), generally fall outside of the Stinchcombe regime (McNeil, at para. 25; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 11), Charron J. agreed that it is “neither efficient nor justified” to leave the entire question of access to misconduct records to be determined under the O’Connor regime (McNeil, at para. 59, citing G. Ferguson, Review and Recommendations Concerning Various Aspects of Police Misconduct (2003), vol. I (“Ferguson Report”), at p. 15). Instead, “the disclosure of relevant material, whether it be for or against an accused, is part of the police corollary duty to participate in the disclosure process. Where the information is obviously relevant to the accused’s case, it should form part of the first party disclosure package to the Crown without prompting” (McNeil, at para. 59 (emphasis in original)). At the same time, McNeil cautioned that the accused has no entitlement to automatic disclosure of every aspect of an officer’s record and that relevance remains the governing standard.

55In considering what broad types of police misconduct may be relevant to the accused’s constitutional right to make full answer and defence, Charron J. held that disciplinary action taken in relation to misconduct concerning the same incident that forms the subject-matter of the charge against the accused must be disclosed as a matter of course (McNeil, at para. 54). Findings of misconduct by a police witness that are not directly related to the investigation against the accused may still be relevant to the accused’s case, in which case it should also be disclosed (ibid.).

56Charron J. discussed a report commissioned by the Chief of the Toronto Police Service and authored by the Honourable George Ferguson, Q.C., titled Review and Recommendations Concerning Various Aspects of Police Misconduct. The Ferguson Report made a number of recommendations, including the automatic disclosure by the police upon request by the Crown of several categories of information regarding acts of misconduct by an officer who may be a witness or who was otherwise involved in a case before the court (McNeil, at para. 57; Ferguson Report, at p. 17). These recommendations, known as the “Ferguson Five”, provide that the following types of information are relevant and ought to be disclosed:

a. Any conviction or finding of guil[t] under the Canadian Criminal Code or under the Controlled Drugs and Substances Act for which a pardon has not been granted.

b. Any outstanding charges under the Canadian Criminal Code or the Controlled Drugs and Substances Act.

c. Any conviction or finding of guilt under any other federal or provincial statute.

d. Any finding of guilt for misconduct after a hearing under the Police Services Act or its predecessor Act.

e. Any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued. [p. 17]

57The Court made clear that the “Ferguson Five” provides “useful guidance” on the “types of matters” that would trigger further assessment for “obviou[s] relevan[ce]” by the police, but it was not a complete code (McNeil, at para. 59). As will be explained below, this list is not to be treated as an exhaustive catalogue, and subsequent legislative changes illustrate why it cannot be set in amber.

(d) Summary

58After McNeil, two questions orient the disclosure of police disciplinary records: who possesses the record, and is the record “obviously relevant”. If the record is in the prosecuting Crown’s possession — or is the kind of “obviously relevant” material police must transmit — Stinchcombe governs and its low threshold of relevance applies. Only material outside that first party sphere is governed by the O’Connor regime.

59Having regard to this governing framework, this appeal requires this Court to examine the status of administratively expunged police discipline records and how expungements under PSR s. 22 are treated within this constitutional framework.

(3) The McNeil Framework Applies to Administratively Expunged Records

60The Chief of Police submits that trial fairness is best achieved through a predictable and practicable disclosure regime. His submissions seek to limit the scope of first party disclosure of police misconduct files and to route such material through the O’Connor process, which he says better protects officers’ privacy interests. As part of his argument, the Chief of Police submits that administratively expunged misconduct files under PSR s. 22 are not relevant in criminal proceedings and, under McNeil, are not subject to Stinchcombe disclosure. With respect, I do not accept the Chief of Police’s argument.

61The Chief of Police’s argument rests on a misinterpretation of PSR s. 22. He overstates what it says, overshoots its intended scope and mischaracterizes its role. When read according to the modern rule of statutory interpretation, PSR s. 22 does nothing more than set out the disciplinary-related consequences of older findings of police misconduct. It does not dictate or alter the role such records may play in a criminal trial.

62Further, because records removed under PSR s. 22 are administratively expunged for disciplinary purposes only, McNeil continues to govern disclosure. There is no basis for treating an administratively expunged record as automatically and categorically irrelevant, or for shifting it wholesale into the third party O’Connor process. Such a sweeping reclassification contradicts settled law requiring case-specific determinations of relevance and would create serious practical impediments to accused persons seeking relevant evidence to which they are constitutionally entitled.

(a) Administrative Expungements and Section 22 of the PSR

63Findings of police misconduct do not always remain on a police officer’s file indefinitely. In most Canadian police forces (with the notable exception of the Royal Canadian Mounted Police, which does not remove findings of misconduct), legislation provides for administrative expungement of disciplinary entries from police officers’ records. While the details vary, expungement generally occurs after one to five years and may be automatic (e.g., British Columbia’s Police Act, R.S.B.C. 1996, c. 367, s. 180(8); New Brunswick’s Code of Professional Conduct Regulation, N.B. Reg. 2007-81, s. 4; Nova Scotia’s Police Regulations, N.S. Reg. 230/2005, s. 58; Ontario’s Community Safety and Policing Act, 2019, S.O. 2019, c. 1, Sch. 1, s. 207; Newfoundland and Labrador’s Royal Newfoundland Constabulary Regulations, C.N.L.R. 802/96, s. 8; Prince Edward Island’s Code of Professional Conduct and Discipline Regulations, P.E.I. Reg. EC1026/25, s. 20; Saskatchewan’s The Municipal Police Discipline Regulations, 1991, R.R.S., c. P-15.01, Reg. 4, s. 27) or application‑based (e.g., Manitoba’s The Law Enforcement Review Act, C.C.S.M., c. L75, s. 32(5); Quebec’s provincial and specialized forces in By-law respecting the internal discipline of members of the specialized anti-corruption police force, CQLR, c. P-13.1, r. 2.001, s. 40; Quebec’s By-law respecting the internal discipline of members of the Sûreté du Québec, CQLR, c. P-13.1, r. 2.01, s. 91; and Montréal’s by‑law regime in By-law respecting the internal discipline of police officers of Ville de Montréal, CQLR, c. P-13.1, r. 2.02, s. 45).

64PSR s. 22 is no longer in force; however, a substantially similar provision continues under the Police Conduct and Oversight Regulation, Alta. Reg. 263/2025. The Decision was administratively expunged from the Detective’s record of discipline by operation of PSR s. 22, which, at all relevant times, read as follows:

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.

65The correct interpretation of PSR s. 22 will be done according to the modern principle of statutory interpretation. This approach precludes reading a provision in isolation (La Presse inc. v. Quebec, 2023 SCC 22, at para. 23). Instead, a statutory provision must be read textually, contextually, and purposively — its words considered in their entire context and aligned with the statute’s scheme and object (Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21).

66Context includes the surrounding words, the Act as a whole, related statutes, and the relevant legal context (R. Sullivan, The Construction of Statutes (7th ed. 2022), at § 1.05). In the case of regulations, attention must be paid to the terms of the enabling statute (Bristol-Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26, [2005] 1 S.C.R. 533, at para. 38). As Driedger explains:

It is not enough to ascertain the meaning of a regulation when read in light of its own object and the facts surrounding its making; it is also necessary to read the words conferring the power in the whole context of the authorizing statute. The intent of the statute transcends and governs the intent of the regulation.

(E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 247)

67Therefore, where the provision sits within a broader statutory scheme, the contextual field is correspondingly wider, engaging “the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter” (R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867, at para. 52; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 27). The apparent clarity of the words taken separately does not suffice because they “may in fact prove to be ambiguous once placed in their context. The possibility of the context revealing a latent ambiguity such as this is a logical result of the modern approach to interpretation” (Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at para. 10).

68While administrative expungement regimes vary across Canada, Alberta is the only jurisdiction that requires the record be not only “removed” but “destroyed” (PSR s. 22(c)). Read alone, the word “destroyed” suggests that the record should cease to exist. This is the textual basis for the claim that administratively expunged records could not be used in any proceeding, including criminal trials.

69However, the word “destroyed” in PSR s. 22(c) is qualified by the effects clause in s. 22(d), which provides that any records to which the section applies cannot “be used or referred to in any future proceedings respecting that police officer”. This has two implications. First, the restriction on the use of those records in future proceedings suggests that they cannot be destroyed permanently and irreversibly. If s. 22(c) did authorize the permanent and irreversible destruction of police disciplinary records, the restriction on use would be superfluous. After all, something cannot be “used” in a proceeding if it does not exist in some form or another. Second, the text of s. 22(d) specifies the limits on any future use of the records to which s. 22 applies: it cannot be used or referred to in “any future proceedings respecting that police officer”. This language does not purport to preclude the use of police disciplinary records in future proceedings generally.

70Section 2 of the PSR confines the regulation to matters of “discipline and performance of duty of police officers” for the purposes of Part 5 of the Police Act, which governs, among other things, complaints and discipline in respect of the conduct of a police officer. Interpreted within the context of its authorizing statute, this supports limiting PSR s. 22 to disciplinary-related proceedings.

71Beyond the text and purpose of PSR s. 22, its context further supports reading that section as addressing only future disciplinary-related proceedings. Context requires attention to the regulation as a whole.

72First, the PSR is a regulation focused on the discipline and performance of police officers. It uses the term “proceedings” to denote disciplinary hearings. Section 21 uses the phrase “record of proceedings” in connection with “the cited officer’s hearing”, as opposed to some other type of hearing. Section 26(1), a transitional provision, states that s. 22 “appl[ies] to investigations and disciplinary proceedings in respect of complaints made in accordance with the [Police Act]”.

73Second, as internal materials, schedules may be looked at and relied on in interpretation (Sullivan, at § 14.08). The PSR’s Schedule, titled “Notice and Record of Disciplinary Proceedings”, details the information that must be provided to an officer charged with contravening s. 5(1) of the PSR. These aspects of the PSR affirm its disciplinary focus.

74Finally, PSR s. 22 is tightly framed around “[r]ecords of discipline” (“the punishment, the contravention or the action taken”), not every conceivable document. The legislature’s deliberate focus on records that would be relied upon and carry weight in future disciplinary decisions supports the interpretation that PSR s. 22 affords relief to officers in those specific contexts.

75The affidavit evidence established that the EPS retains a mirrored copy of professional misconduct files despite their purported “removal” and “destruction” (application judge’s reasons, at para. 11). Therefore, in practice, PSR s. 22 does not result in permanent destruction of police disciplinary records. Some jurisdictions make this point explicit in their regulatory texts. In New Brunswick, the Code of Professional Conduct Regulation, mandates that once an entry is “expunged”, the “service record of discipline of a member of a police force shall be maintained . . . in a secure location separate from the personnel file of the member for as long as the chief of police or civic authority determines necessary” (s. 4(4)). Similarly, Prince Edward Island’s Code of Professional Conduct and Discipline Regulations provides for retention in a secure, segregated repository (s. 20(3)). These provisions help clarify that administrative “expungement” regulates placement and access within disciplinary records; it does not equate to wholesale destruction for all purposes.

76By contrast, a “true” expungement under the Expungement of Historically Unjust Convictions Act, S.C. 2018, c. 11 (“EHUCA”), or free pardon under the Criminal Code would operate retroactively, deeming the person never to have been convicted or to have committed the offence (EHUCA, s. 5(1); Criminal Code, s. 748(3)); a free pardon granted by exercise of the royal prerogative of mercy would likely have similar effect, although there is no decided case law on point before me (Parole Board of Canada, Royal Prerogative of Mercy Ministerial Guidelines, January 18, 2024 (online); Letters Patent Constituting the Office of Governor General of Canada (1947), Canada Gazette, Part I, vol. 81, p. 3104, s. XII (reproduced in R.S.C. 1985, App. II, No. 31)). An administrative expungement under PSR s. 22 is a much more limited remedial measure: it removes the punishment, contravention or action from the officer’s record of discipline and restricts use in future disciplinary proceedings, but it does not nullify the underlying finding, allow the officer to deny it, or bar credibility testing. The effect of administrative expungement under PSR s. 22 is akin to that of a record suspension under the Criminal Records Act, R.S.C. 1985, c. C-47, which does not erase the past and does not preclude cross-examination on the finding of misconduct or, where relevant, its underlying facts (see Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3, at para. 116; R. v. Foreshaw, 2024 ONCA 177, 170 O.R. (3d) 401, at paras. 23 and 32). It follows that even if a disciplinary decision has been “removed” and “destroyed” under PSR s. 22, that administrative step neither retroactively eliminates the finding nor permits the officer to deny it, and it does not immunize the officer from being asked on the stand whether there was a finding of misconduct.

77I agree with the learned application judge that the Alberta authorities reaching the opposite result are either readily distinguishable on their facts, were not binding because it was a lower court decision (e.g., R. v. Letourneau, 2009 ABPC 222, 11 Alta. L.R. (5th) 348), or have been eclipsed by subsequent jurisprudence and legislative developments. Those cases largely proceeded on assumptions now shown to be inaccurate (notably, that “expunged” records were destroyed), whereas the evidentiary record here establishes that the EPS’s Professional Standards Branch retains those materials in historical or inactive files (see R. v. Perreault, 2010 ABQB 714, 36 Alta. L.R. (5th) 110). They also involved broad, speculative requests unlike the targeted, known record at issue now (see R. v. Polny (2009), 2009 CanLII 81890 (AB QB), 488 A.R. 253 (Q.B.); R. v. Steele, 2010 ABQB 39, 488 A.R. 296; and Perreault). Further, subsequent appellate guidance confirms the Police Act/PSR regime is aimed at police discipline and performance of duty, not criminal disclosure; that context, coupled with changes to the Criminal Records Act, undermines earlier analogies between s. 22 removals and pardons or record suspensions (see Edmonton Police Association v. Edmonton (City), 2017 ABCA 355, 58 Alta. L.R. (6th) 318; Rysdyk v. Slaney, 2023 ABCA 305, 492 D.L.R. (4th) 240). In any event, this Court has now established the limited disciplinary sphere in which PSR s. 22 operates.

78In sum, I conclude that PSR s. 22 applies only to disciplinary-related proceedings in respect of police officers and does not govern criminal disclosure obligations. Accordingly, PSR s. 22 does not authorize police disciplinary records to be “removed” and “destroyed” permanently and irreversibly. Interpreting “destroyed” as permanent erasure for all purposes would impermissibly allow the regulation to defeat constitutional disclosure principles. If a record is permanently destroyed and becomes unavailable for disclosure in a criminal proceeding, the accused may seek recourse through a lost or destroyed evidence application, including the remedial framework in Carosella.

(b) Expunged Administrative Records Fall Within the McNeil Framework

79There is no principled basis to exempt administratively expunged police disciplinary findings from the McNeil principles. McNeil ties the content of first party disclosure to the concept of relevance, without regard to the record’s administrative status in a record of discipline. Police must furnish to the Crown misconduct information that is “obviously relevant”, and the Crown must then assess relevance, privilege, timing, and privacy safeguards. Nothing in McNeil limits that duty based on the disciplinary status of the underlying material. A regulatory removal or “expungement” provision aimed at internal police discipline cannot displace the constitutional foundation of disclosure or convert first party disclosure into third party production.

80Indeed, the nature and potential relevance of the “expunged” document is unchanged: it is still a disciplinary finding that may bear on credibility, reliability, investigative integrity, or other live trial issues. Administrative expungement alters the record’s disciplinary status, not its character as a misconduct finding capable of assisting the defence. What may change, however, is its currency. Currency may affect relevance — older findings may, in a given case, carry less probative force — but it does not impose or provide the rationale for the categorical exclusion of information from first party disclosure. The age of the record may be considered during the Crown’s relevance assessment.

81The governing question remains whether the information is “obviously relevant”, in that it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise shape defence strategy (R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35, at para. 23). If it is, police must transmit it and the Crown must review and disclose it using proportionate privacy accommodations where necessary. If it is not, it falls within third party production under O’Connor.

82The Chief of Police’s request to automatically exclude administratively expunged information from the McNeil package and force the defence to take an O’Connor application also has serious practical consequences for the accused. While Stinchcombe assigns the justificatory burden to the Crown for withholding information, O’Connor assigns it to the accused for seeking production of records held by third parties. Under first party disclosure, relevant material in the hands of the prosecuting Crown flows automatically and as of right to the accused; the Crown provides this information as part of the standard disclosure package. In contrast, the O’Connor third party process is costlier and more onerous, applies the higher threshold of “likely relevance” and consumes considerable societal, individual and judicial resources, deterring requests for potentially relevant defence material.

83Under the Chief of Police’s approach, the police would alone determine relevance and would no longer be obliged to provide administratively expunged records to the Crown. The Court in McNeil understood the consequences of this distinction and held that the correct approach is to require police to provide such records to the Crown in the ordinary course and to have the Crown assess relevance based on its extensive expertise in applying this legally defined standard. Therefore, once Stinchcombe is engaged, routing the material through O’Connor improperly trenches on the accused’s constitutional entitlement, flips the burden, and undermines the fairness guarantees at the core of criminal disclosure.

84The administrative removal of a record of police misconduct under the PSR therefore does not alter the legal regime under which its disclosure is determined in criminal proceedings. McNeil continues to apply to all police misconduct records, even administratively expunged ones. If: (1) the information sought is in the possession or control of the prosecuting Crown; or (2) the nature of the information sought is relevant such that the police (or another Crown entity in possession or control) ought to have provided the information to the prosecuting Crown, the governing framework is Stinchcombe rather than O’Connor (Gubbins, at para. 33).

B. What Qualifies as Relevant Information of Police Misconduct?

85To set out the clear, functional account of what makes police misconduct information relevant for first party disclosure requested by the Chief of Police, I begin by restating the governing standard — relevance as a low, utility‑based threshold. I clarify that “obvious relevance” is not a higher test but is another way of formulating the Stinchcombe standard of relevance and a descriptor for material outside the investigative file that would still meet the disclosure standard. I then explain the two principal routes to “obvious relevance”: (1) misconduct tied to the investigation at bar, which is per se “obviously relevant”; and (2) other misconduct by an officer involved in the case that could reasonably bear on the case against the accused in that it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence. I define the respective roles of police and Crown within this framework, address how guidance like the “Ferguson Five” assists (but does not limit) triage, why “serious misconduct” operates as a proxy for relevance rather than a rigid category, and how residual privacy interests are accommodated downstream by proportionate safeguards.

(1) General Principles of Relevance

86Relevance is the foundational criterion upon which the law of evidence proceeds. In its simplest terms, evidence is relevant if, as a matter of logic and human experience, it tends to make a fact more or less probable than it would be absent the evidence (R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47).

87Relevance is about building a bridge from a piece of information to a legitimate inference. Evidence need not be conclusive, nor independently sufficient to be relevant to the proposition for which it is tendered. It is enough that the evidence has some probative tendency — however slight — to advance the inference sought to be established. In Egger, the Court described relevance as information that is of “some use” to the defence (p. 467). So, even small pieces of information can support larger conclusions when combined. For example, a piece of evidence that undermines a witness’ credibility will be relevant to an issue — even if it is unrelated to the issue itself — when it helps the court understand whether the witness’ account should be accepted.

88The threshold for relevance is modest. If something might help even a little in figuring out the truth, it is usually relevant. This ensures that an accused’s decisions are made on as much pertinent information as possible, within the limits of the governing framework. By keeping the threshold low, the law acknowledges that cases are built piece by piece, and even modest facts can eventually lead to important insights. Understanding relevance means recognizing that every fact with a logical connection to a fact in issue counts. It is all about making a fact more or less likely — a common-sense test that lies at the heart of fair and thorough fact-finding.

(2) The Definition of “Relevance”

89In McNeil, when describing the police duty to include information as part of the “‘first party’ disclosure package due to the Crown”, the Court held that the police must include all information that is “obviously relevant” to the accused’s case (paras. 15 and 59). This wording may suggest that “obvious relevance” is a separate and more exacting standard than the relevance standard described above.

90However, in Gubbins, this Court clarified that the phrase “obviously relevant” does not introduce a new standard or different degree of relevance. Instead, “this phrase simply describes information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence” (para. 23). Put differently, “obvious relevance” is simply another way of stating the Stinchcombe standard of relevance used by the Crown — that all material must be provided unless clearly irrelevant, privileged or its disclosure is otherwise governed by law (Stinchcombe, at p. 339; McNeil, at para. 18). For clarity’s sake, I will avoid the term in the remainder of these reasons. Relevance as defined in Stinchcombe governs, and there is no further requirement of obviousness.

(3) Determining Relevance

91The Court in McNeil understood that a main issue was “identifying the contours of relevance for the purposes of the police’s first party disclosure obligation” (para. 53). Simply stated:

Obviously, the accused has no right to automatic disclosure of every aspect of a police officer’s employment history, or to police disciplinary matters with no realistic bearing on the case against him or her. However, where the disciplinary information is relevant, it should form part of the first party disclosure package, and its discovery should not be left to happenstance. [para. 53]

92Not every finding of police misconduct by an officer involved in the investigation will be of relevance to an accused’s case (McNeil, at para. 59). The breadth of possible police misconduct is very wide. An officer may have played a peripheral role in the investigation, or the misconduct in question may have no realistic bearing on the credibility or reliability of the officer’s evidence or any other live issue at trial. It is also important to remember that “[t]he contentious nature of police work often leads to public complaints, some legitimate and others spurious” (para. 45).

93Findings of misconduct can meet the relevance threshold in two principal ways. First, any police misconduct related to the investigation, or the “fruits of the investigation”, is per se relevant and must be included by the police in the first party disclosure package due to the Crown.

94Second, misconduct that is not investigation‑specific but arises in other circumstances could also reasonably bear on the case against the accused. Relevance covers any information that is of some use to the defence — a contextual, factual and functional inquiry that will depend upon what issues arise in the particular case. The following examples, drawn from the PSR, illustrate potential links between types of misconduct and various issues; they are illustrative, not exhaustive. Misconduct under any federal or provincial enactment may be relevant and must be assessed accordingly. Using the PSR solely as an illustration, misconduct records that fall within this second category may be relevant to the officer’s:

(a) testimonial credibility and veracity. This is almost always a live issue for any witness in a criminal trial. Relevant information includes honesty-based misconduct, broadly conceived. For example, a conviction for perjury has obvious implications for honesty. But so too does breach of confidence (e.g., giving notice to any person against whom a warrant has been issued (s. 5(2)(a)(ii))), corrupt practice (e.g., failing to account for money that the police officer received in his capacity as a police officer (s. 5(2)(c)(i))), or deceit (e.g., destroying official documents without a lawful excuse (s. 5(2)(d)(iii)(A)));

(b) evidentiary reliability. For example, consumption of liquor or drugs in a manner that is prejudicial to duty (e.g., reporting unfit for duty (s. 5(2)(b)(iii)));

(c) investigative integrity and good faith. For example, neglect of duty (e.g., failing to work in accordance with orders or leaving an area without due permission or sufficient cause (s. 5(2)(h)(ii)) or permitting a prisoner to escape on account of the police officer being careless or negligent (s. 5(2)(h)(iii))); deceit (e.g., non‑preservation or destruction of material evidence or official documents (s. 5(2)(d)));

(d) bias, partiality, or motive to fabricate. For example, discreditable conduct (e.g., using profane, abusive or insulting language to any member of a police service or to any member of the general public (s. 5(2)(e)(iii)) or differential application of the law based on protected characteristics (s. 5(2)(e)(vii))). Patterns of slurs or hostile communications may support a claim of bias, a Charter claim or a focused credibility challenge, even if the index event is not itself perjury;

(e) interview practices. For example, oppressive, profane, abusive or insulting conduct or language may inform questioning tactics bearing on the admissibility and weight of statements (s. 5(2)(e)(ii) and (iii)); and

(f) Charter compliance more broadly. For example, unlawful or unnecessary exercise of authority (e.g., applying inappropriate force in circumstances in which force is used (s. 5(2)(i)(ii))) may illuminate personal or systemic issues.

95Clearly, what is relevant in any given case is a contextual and functional inquiry, which asks whether the misconduct could reasonably assist the accused in meeting the Crown’s case, advancing a defence, or making tactical decisions. While the age of the record, remoteness, and the officer’s role may affect the weight the eventual fact finder may give to the evidence, the inquiry about relevance involves different principles and a much lower threshold.

(4) The Definition of “Serious Misconduct”

96The police are to transmit findings of “serious misconduct” as part of the “disclosure package due to the Crown” (McNeil, at para. 15):

. . . records relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within the scope of the “first party” disclosure package due to the Crown, where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused. [Emphasis added.]

97McNeil does not define “serious misconduct”, a term it employs but the once. Nor has subsequent jurisprudence addressed how to determine what qualifies as “serious misconduct”. The dictionary tells us that the word “serious” has many meanings but only two common usages are pertinent to a disclosure-based inquiry: (1) to denote a condition that is “severe in effect; bad” (Cambridge Dictionary (online)); and (2) to denote something “of or relating to a matter of importance” (Merriam-Webster Dictionary (online)).

98If “serious” only means “severe” or “bad”, the police misconduct will be evaluated on its own according to its inherent characteristics, qualities and consequences. Such an approach asks the decision maker to place the pertinent conduct on a continuum of severity and invites a comparison with other conduct which is evaluated as more or less serious: an approach often used in sentencing decisions to assess the seriousness of an offence. As applied to disclosure, this meaning of seriousness promotes a categorical approach based on the actions themselves, as situated within the larger legal, regulatory and disciplinary systems, but removed from a consideration of the potential impact of this information on trial fairness.

99This meaning of “serious” underpins the submissions of the parties and interveners, which offer categorical definitions of “serious misconduct”. The intervener National Police Federation urges a narrow definition of “serious misconduct” based on three different categories: (a) misconduct tied to the investigation in the accused’s file; (b) misconduct bearing on honesty or credibility; or (c) misconduct raising questions about investigative skill or diligence (I.F., at para. 25). Similarly, the application judge adopted a categorical approach based on how applicable police regulations classify different conduct. For example, seriousness was assessed by looking at the regulations and asking whether, under them, the police actions qualify as serious or minor infractions, what process was used, and what penalty was imposed.

100In my view, a categorical approach to seriousness focused on its abstract severity may provide some useful information but is not an adequate inquiry when the issue is what police files ought to be provided to the Crown or disclosed to the defence. It is the second meaning of seriousness, as relating to a matter of importance, that is most germane to disclosure. It captures and tracks the centrality of relevance to disclosure as it is also a relational exercise which ties seriousness to the intended use to be made of the information. It assesses what is “serious misconduct” by reference to its significance to fair‑trial interests: it will be serious if the conduct could reasonably assist the accused in meeting the Crown’s case, raising a defence, or otherwise organizing the conduct of the defence. Read this way, “serious” focuses on the importance of the misconduct to the defence.

101Thus, “serious misconduct” is not amenable to a strictly categorical approach, but is instead also to be assessed contextually and functionally on a case-by-case basis. When the governing touchstone is whether the information is relevant, the question is not which infractions under a disciplinary regulation are, in the abstract, “serious” or “not serious”, although this may assist in assessing whether they are relevant to an issue in the case. (For example, the type of conduct outlined in s. 5 of the PSR is likely to qualify, as are the categories of misconduct articulated by the National Police Federation.)

102However, in the disclosure context, “serious misconduct” is not a qualitative assessment separate and apart from an assessment of relevance. Instead, the term “serious misconduct” was used as a proxy for conduct that is relevant for Stinchcombe purposes. Relevance is determined by the link between the misconduct finding and whether it could reasonably affect the accused’s ability to defend, and this will be affected by the live issues in any given trial. It does not depend on whether or how the legislature has defined “serious misconduct” in the disciplinary sphere. In the same way that PSR s. 22 did not govern the relevance of administratively expunged findings of misconduct, the legislature’s classification of offences cannot define or circumscribe what constitutes “serious misconduct” for disclosure purposes in the criminal context.

103Assessing “serious misconduct” in a functional, non-categorical manner ensures relevance is determined by reference to the accused’s constitutional rights, rather than administrative, ad hoc or a priori categorization. If the information concerns conduct which relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence, it qualifies as “serious misconduct” and the police are required to transmit such information to the Crown (Gubbins, at para. 23).

(5) Disclosure Requires More Than Criminal Charge Information and Goes Beyond the Ferguson Five

104The Chief of Police argues that relevant serious misconduct should be limited to “criminal record type information” relating to the “Ferguson Five” categories discussed in McNeil. While this “criminal record type information” (date of conviction or outstanding charge, offence and punishment) would form part of the first party disclosure, all other information on a police file would be irrelevant and could only be obtained through a third party O’Connor application. With respect, I do not agree with this argument.

105The Ferguson Report recommended automatic disclosure by the police, upon request by the Crown, of specified categories of information for officers who may be a witness or otherwise involved in a case before the court (p. 17). For ease of reference, I repeat the “Ferguson Five”:

a. Any conviction or finding of guil[t] under the Canadian Criminal Code or under the Controlled Drugs and Substances Act for which a pardon has not been granted.

b. Any outstanding charges under the Canadian Criminal Code or the Controlled Drugs and Substances Act.

c. Any conviction or finding of guilt under any other federal or provincial statute.

d. Any finding of guilt for misconduct after a hearing under the Police Services Act or its predecessor Act.

e. Any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued. [p. 17]

106This Court endorsed this list as providing “useful guidance” on the “types of matters” that would trigger further assessment for relevance by the police (McNeil, at para. 59). However, that list requires modifications.

107There have been legislative developments since the Ferguson Report was compiled. The Ferguson Report was tethered to Ontario’s then-operative Police Services Act, R.S.O. 1990, c. P.15. That Act is no longer in force. It has been replaced by the Community Safety and Policing Act, 2019 (“CSPA”).

108The “referred to a hearing” threshold under e. is no longer a suitable standard. In McNeil, Charron J. cautioned against “spurious” complaints and misconduct having “no realistic bearing” on credibility or reliability (paras. 45, 53 and 59). Such spurious complaints would have been unlikely to have been referred for a hearing under Ontario’s former Police Services Act. Accordingly, the “referred to a hearing” threshold under (e) functioned as a proxy for the legitimacy and seriousness of a complaint. Not only do hearing thresholds and disciplinary regimes vary across jurisdictions, but the CSPA expands the scope of discipline that a police chief can impose without a “hearing” with potential penalties that largely overlap with those previously available following a hearing. The CSPA also expands the available sanctions to include a reprimand or a direction to undergo treatment, counselling, training, or a specified program or activity (s. 200(1)).

109There is also ambiguity concerning the contours of the Ferguson Five’s exception for “pardons”. The reference to a “pardon” can only encompass two circumstances: a free pardon or a “true” expungement. A free pardon granted under s. 748 of the Criminal Code removes the conviction from McNeil disclosure obligations as “that person shall be deemed thereafter never to have committed the offence in respect of which the pardon is granted” (s. 748(3)). A “true” expungement under the EHUCA has the effect of restoring non-convicted status, with the person “deemed never to have been convicted of that offence” (s. 5(1)). The animating purpose of Stinchcombe and McNeil is to ensure that all relevant information is provided to the Crown so that disclosure obligations can be met. The relevance of a conviction is necessarily extinguished where a free pardon or a “true” expungement has been granted. A conviction that no longer exists cannot, by definition, be relevant to credibility, reliability or any other live issue at trial, and thus falls outside the scope of first party disclosure.

110A revised formulation of the Ferguson Five categories reflecting these adjustments would call for the police to disclose information concerning: 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 EHUCA has not been granted.

111The list is non-exhaustive, even though the vast majority of misconduct will likely fall within the various categories. These are helpful and operational guidelines meant to assist busy police services in triaging misconduct records. They are not limits on what must be disclosed. Misconduct records that do not neatly fit must still be assessed for relevance because the disclosure obligation attaches to relevant information, and while the relevance assessment may be aided by reference to document types or record classes, it is not prescribed by them. Again, the duty is functional because its purpose is to facilitate defence access to information that may reasonably have a bearing on the case.

112Accordingly, the obligation extends to all relevant information, regardless of format. Confining the disclosure to only “criminal record type information” as suggested by the Chief of Police would run counter to the idea that it is substance, not form, that governs. At a minimum, however, the police must automatically disclose 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 alleged disciplinary misconduct, especially where this would not otherwise be obvious from the nature of the charge.

(6) The Role of Police Privacy Concerns

113In O’Connor, the Court tied one’s reasonable expectation of privacy to a person’s dignity and self-worth and explained that it is critical to safeguard reasonable expectations of privacy at the point of disclosure, because “once invaded, it can seldom be regained” (para. 119). However, it also underscored that the right to privacy, once established, is not absolute. It must be balanced against other rights and legitimate societal needs, including the state’s interest in the proper administration of justice. That balancing lies in an assessment of the reasonable expectation of privacy and a weighing of that expectation against the necessity of state interference in the circumstances (para. 117).

114I agree that residual privacy interests in the contents of criminal investigation files or police disciplinary records warrant due consideration. However, the balance cannot be struck so as to accommodate privacy at the expense of relevance. Police privacy interests cannot impede fair trial rights; they must yield to full answer and defence, but only to the minimum degree necessary to vindicate those rights (McNeil, at para. 43). Police officers must “accept this intrusion in the interests of achieving a proper result in the criminal case, but the law should provide them with some reasonable protection against use of the information for entirely different purposes” (P. (D.) v. Wagg (2004), 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229 (C.A.), at para. 46).

115In Stinchcombe, this Court’s response to the Crown’s concerns about disclosure — particularly the potential risks to the safety and security of witnesses and informers — resonates with the concerns raised by the Chief of Police regarding police privacy interests (p. 335). In both instances, the apprehension centres on the potential harm that could result from revealing sensitive information. However, as Sopinka J. made clear, such concerns do not justify a blanket refusal to disclose relevant material.

116The Court in Stinchcombe acknowledged the need to protect informers and witnesses but emphasized that existing legal safeguards — such as informer privilege and its exceptions — already provide a framework for managing these risks. Crucially, the Court affirmed that disclosure is ultimately a matter of timing and discretion, not of absolute exemption (pp. 335-36). Prosecutors retain discretion to withhold irrelevant material, delay disclosure to protect ongoing investigations, and safeguard identities where necessary, subject always to judicial oversight (p. 336). Just as the Court in the disclosure context entrusted prosecutors with the discretion to balance competing interests, similar discretion may be exercised in managing police privacy concerns. Rather than foreclosing access to relevant information, the solution lies in a principled, reviewable exercise of discretion that ensures fairness while respecting legitimate privacy and safety considerations.

117Police privacy interests in disciplinary, employment, medical and personal information can often be accommodated through procedural safeguards — notice and opportunity to make submissions, targeted redactions and structured dialogue between police and Crown. These safeguards exist to balance privacy with the overarching duty to disclose relevant information. Disclosure may entail an invasion of privacy; the court’s task is to prevent unnecessary invasion through tailored, proportionate orders (McNeil, at para. 41).

118That said, police cannot unilaterally withhold relevant material from first party disclosure based on their assessment of their privacy interests. Such material must be included in the package due to the Crown. The police role is triage and transmission; any privacy accommodations are operationalized downstream by the Crown, not used upstream to prevent inclusion in the McNeil package given to the Crown. While the ability to operationalize procedural safeguards to protect officer privacy is the sole responsibility of the Crown, the police may flag concerns, provide context and propose practical measures. The final call rests with the Crown, who must determine relevance and ensure that disclosure obligations are met.

119I turn to some suggested mechanisms next. Other lawful and proportionate measures may also be appropriate, depending on the facts and the nature of the records at issue. The aim is to accommodate privacy through Crown-administered safeguards without undermining relevance or the duty to disclose.

120First, any concerned officer who was the subject of disciplinary records produced to the Crown could be notified in writing and may be given the opportunity to make submissions to the Crown (McNeil, at para. 58).

121Second, police may document privacy concerns on the McNeil package. The Crown may follow up as needed, requesting particulars or clarifications. The Crown and the police may even wish to meet to resolve outstanding issues. Again, the Crown retains the final decision.

122Third, I agree that redactions are available as a tool to address police privacy concerns, but they cannot be made to relevant portions of the record. Practically, this means limiting redactions to non-material personal identifiers or sensitive details with no relevance to the live issues in the trial.

C. What Are the Respective Roles of the Police and the Crown for the Purposes of Disclosure?

123The Chief of Police submits that, in response to Crown or defence requests, the police alone should review their files, assess relevance, and decide whether to disclose. I disagree because this proposition runs counter to the well-defined respective roles of the police and the Crown in Stinchcombe and McNeil.

124In this part, I explain that while the police are to participate meaningfully, their role in disclosure is limited to an initial triage of police files for relevance and the transmission of information to the Crown. Where information is withheld as not relevant, the police must still alert the Crown to what exists and why they say it is being lawfully withheld.

125I then address why the prosecuting Crown — rather than the police — is the institutional arbiter of relevance in the criminal disclosure regime. I clarify the Crown’s duty to inquire — when it is triggered and when it is not, how it operates both to mitigate informational asymmetry and support the Crown’s ongoing case assessment function, and how it gives content and meaning to the “possession or control of the prosecuting Crown” (McNeil, at para. 22; Gubbins, at para. 33).

126This approach preserves a real but bounded police vetting role. It also ensures the Crown can continue to assess relevance and, where appropriate, override the police so that first party disclosure continues to flow and is not improperly diverted into the third party production regime.

(1) How Police Can Discharge Their Duty to Participate Meaningfully in Disclosure

127In McNeil, the Court assigned a meaningful, first party role to police within the disclosure process. The police are the ones in possession of the “fruits of the investigation” and police disciplinary records. Concerning the latter, the police must include in the “disclosure package due to the Crown” any misconduct related to the investigation or that could reasonably impact the case against the accused (para. 15). That design necessarily contemplates a police vetting function — i.e., a decision either to provide or to withhold — when considering misconduct that could “reasonably impact” the case. The police and Crown work together and the Crown’s Stinchcombe duty is engaged upon receipt of material from the police (McNeil, at para. 23). To enable the Crown to discharge its own Stinchcombe duty, the police must equip the Crown with the information required to review, reassess, and, where appropriate, override the initial police assessment.

128In performing this triage and transmission function, the police are not duty bound to disclose all material indiscriminately. Instead, their obligation is to meaningfully participate in disclosure, which necessarily includes vetting for relevance (McNeil, at para. 59).

129Not every disciplinary finding involving an officer connected to the investigation will satisfy the threshold of relevance. Where the threshold is met, McNeil requires the police to provide such information to the Crown. However, where the officer’s participation was merely peripheral, or the misconduct is not relevant to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise organize the conduct of the defence, the standard is not met and the police may withhold it from first party disclosure to the Crown (McNeil, at para. 59).

130Importantly, a decision to withhold does not exhaust the corollary duties of the police. Police cannot simply withhold material without alerting the Crown to the fact that they have decided to withhold it. At a minimum, once the police determine that information of misconduct is not relevant, they must tell the Crown: (1) what is being withheld (i.e., the nature and content of the misconduct); and (2) the reason for non-disclosure (i.e., why the relevance threshold was not satisfied).

131In some cases, it will be apparent on the face of the record that the information is not relevant, and the Crown may accept the police assessment. In other cases, the basis for the assessment may be unclear or unconvincing. In such instances, the Crown may seek further particulars from the police and, upon review, may override the initial assessment. If satisfied the information is relevant, the Crown will disclose it to the defence.

132The ability of the Crown to engage in further inquiry and, where necessary, reassessment is essential and without transparency about what has been withheld, the Crown’s Stinchcombe obligations are impeded. The notice requirement set out above operationalizes the police’s corollary duty by specifying what must be given to the Crown when they decide to withhold misconduct files.

133This approach preserves a meaningful police vetting role, and ensures the Crown obtains the information necessary to discharge its disclosure and inquiry duties fully and fairly. A better practice may be for the police to simply provide all disciplinary records to the Crown for their review. In oral argument, the Crown stated that the forwarding of all such files would be welcome and would not impose an undue burden.

(2) The Crown’s Role in the Administration of Justice

134The dispute about who, between the police and the Crown, should assess police disciplinary records for criminal disclosure requires restating a core principle: the prosecuting Crown bears the constitutional disclosure duty under Stinchcombe and must be positioned to discharge it. Police play a corollary and more limited role — initial triaging for relevance and transmitting information to the Crown. Properly structured, this division advances trial fairness and ensures accountability within a reviewable framework.

135Under Stinchcombe, the accused’s right to make full answer and defence is vindicated through the Crown’s obligation to disclose all relevant, non-privileged material in its possession or control, subject only to narrow, principled limits (Stinchcombe, at pp. 339-40; Dixon, at para. 21; Taillefer, at para. 59; Egger, at p. 467). That constitutional duty rests with the prosecuting Crown and it cannot be discharged or downloaded to a system based entirely on police self-screening. McNeil confirms that, while police are institutionally distinct, they must supply relevant information to the Crown so the Crown can review its content, assess relevance and decide what should be disclosed directly and automatically to the accused (paras. 14 and 23). The Stinchcombe/McNeil disclosure framework presupposes, and is built upon, Crown review, which takes place daily in Crown offices across the country.

136The Crown’s quasi-judicial role and minister-of-justice mandate involves independence, impartiality and discretion, requires the laying of credible evidence fairly before the court, and is a role that “excludes any notion of winning or losing” (Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, at pp. 23-24; Stinchcombe, at p. 333). Locating the duty to assess police disciplinary records for criminal disclosure purposes with the Crown ensures a principled and reviewable balancing between trial fairness and residual privacy interests by an independent and impartial decision maker (McNeil, at paras. 37 and 39-43; O’Connor, at paras. 117-37). Crown-centred review anchors accountability. It supports constitutionally compliant disclosure to the defence and allows the Crown to fulfill its ongoing duty to assess whether, after examining the police disciplinary records in hand, the state retains sufficient grounds to proceed with the prosecution.

137The prosecuting Crown alone has the file‑wide view of charges, anticipated issues and defences, and objectively applies the governing legal standards to assess whether police misconduct bears on credibility, reliability, or the conduct of the case. Placing this assessment with the Crown also creates structured oversight of police vetting, prevents informational blind spots and permits principled, reviewable decisions that keep first party disclosure flowing.

138In sum, requiring review by the Crown for relevance is compelled by doctrine and justified by the Crown’s role, expertise, and experience. The police must participate through good‑faith triage and transmission, but they are not the final decision makers on disclosure. That duty and function belongs to the prosecuting Crown.

(3) The Crown’s Duty to Inquire

139McNeil fortified Stinchcombe by formalizing the Crown’s duty to inquire. While the Court rejected the proposition that all state authorities constitute a single Crown entity, McNeil reinforced that the Crown is not a “passive recipient of relevant information with no obligation of its own to seek out and obtain relevant material” (para. 48). When put on notice of the existence of potentially relevant information in possession of other Crown agencies or departments, including potentially relevant evidence pertaining to the credibility or reliability of witnesses (para. 50), the Crown has a duty to inquire and to obtain that information if it is reasonably feasible to do so (para. 49).

(a) What May Qualify as Notice?

140An issue raised in this appeal is the content of the term “notice” for the purpose of engaging the Crown’s duty to inquire. McNeil does not confine the channels through which the Crown may be put on notice; rather, the duty arises when the Crown is “informed of potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case” (para. 50 (emphasis added)).

141While notice may come from defence counsel, it would be illogical to confine the Crown’s duty to inquire to notice originating solely from the defence. The operative consideration is the Crown’s awareness of information that may assist the defence; the source of that awareness is secondary. Notice may emerge from another Crown prosecutor, media reporting, or the individual Crown’s “personal memory or common knowledge in the prosecutor’s workplace” (I.F., Attorney General of Ontario, at para. 12). This approach accords with the Crown’s role as an advocate and minister of justice who has a corresponding legal duty to disclose all relevant information to the defence (McNeil, at para. 51; O’Connor, at para. 102; Stinchcombe, at p. 333; Boucher, at pp. 23-24).

142The Chief of Police contends that “possession or control of the prosecuting Crown” — articulated in McNeil — is limited to the individual carriage file in a particular prosecution, making materials from unrelated prosecutions into third party information. I do not accept this submission. It cannot be reconciled with the duty to inquire and would improperly allow relevance to turn on where a file is located. Once the duty to inquire is engaged and where retrieval is reasonably feasible, the prosecuting Crown must obtain that information — even if located in a different prosecution file — and assess and disclose it. Treating such material as third party solely because it originated outside the index file fails to take into account the duty to inquire and would frustrate first party disclosure.

(b) Exceptions to the Duty to Inquire

143There are only two circumstances in which the Crown’s duty to inquire, once triggered, need not be carried through. First, the Crown need not inquire where the notice is “unfounded” — that is, so lacking in credibility, specificity, or nexus to the issues that no reasonable prosecutor would consider it capable of “reasonably impact[ing]” the case (McNeil, at paras. 15 and 49). Second, even when notice is founded, the duty ends if it is not “reasonably feasible” for a diligent prosecutor to obtain the material in the circumstances.

144Where notice is founded and it is reasonably feasible to obtain the material, prosecutorial practice requires targeted efforts to locate and disclose the information. The first step the Crown must take is to request the material from the police. If the police do not possess the material, cannot locate it or refuse to provide it, the Crown may then seek it from another prosecution file within its service (I.F., Attorney General of Ontario, at paras. 13-14). Where either limiting condition applies, the Crown should promptly explain its position to the defence so the accused can pursue whatever course is in their best interests.

(c) Two Functions of the Duty to Inquire

145The duty to inquire serves two complementary functions. It mitigates informational asymmetry by ensuring the defence is not disadvantaged by its lack of knowledge, and it enables the Crown to assess the merits of the case and proceed fairly.

146The catalyst for extending the Stinchcombe framework was the recurring predicament faced by the defence that they cannot request what they do not know exists: once the prosecuting Crown is alerted to potentially relevant material unknown to the accused, it cannot convert that asymmetry into advantage. As a quasi-judicial officer, the Crown must make reasonable inquiries rather than exploit the defence’s lack of knowledge.

147The duty to inquire likewise supports the Crown’s case assessment function. The decision to prosecute or to discontinue a prosecution is among the most significant exercises of prosecutorial discretion. Across Canada, prosecution policies are structured around a two-part screening standard: first, the sufficiency of the evidence which may vary by jurisdiction; and second, whether a prosecution is required in the public interest (see, e.g., Alberta Crown Prosecution Service, Crown Prosecutors’ Manual: Decision to Prosecute, May 4, 2022 (online)). Properly understood, the Crown’s duty to inquire operationalizes these standards. It allows the Crown to “fully assess the merits of the case and fulfill its duty as an officer of the court” (McNeil, at para. 49).

D. Guidance on Disclosure

148I conclude with concise, operational guidance to ensure timely disclosure consistent with these principles:

(a) 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.

(b) 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.

(c) 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 Codeor 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.

(d) 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.

(e) 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).

(f) 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.

(g) When the Crown is put on notice of potentially relevant information, it must make reasonable, feasible inquiries and disclose as appropriate.

(h) 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.

(i) 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.

(j) 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.

E. Application

149In this case, the Crown did retrieve and review the Decision and concluded that the misconduct was serious, had a realistic bearing on the Detective’s credibility and must be disclosed on any matter in which that Detective had more than peripheral involvement. Once the Crown reached that view, the matter properly fell within Stinchcombe and McNeil: the Crown had possession and control of the Decision and was obliged to disclose it as first party disclosure. Although the duty to inquire may ensure access to potentially relevant material, here the Crown already had the Decision in hand and had assessed it as relevant to the Detective’s credibility. At that point, disclosure to the defence was required as of right. The fact that the record originated in another prosecution file does not affect this conclusion; once on notice, and once retrieval proved feasible, the Crown’s first party disclosure obligation was engaged.

150Having obtained the Decision and determined that it could be potentially relevant to the Detective’s credibility, the Crown was obliged to disclose it to the defence, notwithstanding the police and the Detective opposed disclosure on the basis that the findings had been administratively expunged. The EPS erred in opposing disclosure of the expunged Decision because administrative expungement under PSR s. 22 does not render such records irrelevant in criminal proceedings.

151Mr. McKee brought a Stinchcombe review seeking disclosure of the Decision as first party material. The Crown also erred in requiring Mr. McKee to bring an application to obtain a record that was within the Crown’s possession, was already assessed as being subject to disclosure and should have been produced as of right under Stinchcombe and McNeil. The Crown’s willingness to consent to the application does not cure the error.

152The police ought to have given the Decision to the Crown and the Crown ought to have disclosed it to the accused. The application judge was correct to order its disclosure.

VI. Motion to File Further Evidence

153Mr. McKee moves, pursuant to s. 62(3) of the Supreme Court Act, to admit the affidavit of Sheila Kim, sworn April 2, 2025, and the “disclosure correspondence” and “correspondence pending leave to appeal” attached as exhibits thereto, as evidence on this appeal. The Chief of Police opposes, arguing that: the motion fails the test from Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759; counsel learned of the Detective’s misconduct through Public Prosecution Service of Canada correspondence, engaging the implied undertaking rule; the appellant is bound by the record below; and the correspondence is irrelevant to any live issue. Mr. McKee concedes that the affidavit does not meet the test for fresh evidence under Palmer, but submits that it provides valuable context.

154The ordinary rules for receiving new evidence under s. 62(3) of the Supreme Court Act (see Palmer; Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517) are not applied strictly in appeals from interlocutory orders, because “there is not the same opportunity for putting forward all the material as at trial” (Amchem Products Inc. v. Workers’ Compensation Board (B.C.) (1992), 192 N.R. 390 (S.C.C.), at para. 6). In Amchem Products, for example, Sopinka J. (sitting alone) admitted further evidence simply “so that the court will have before it a more complete record of the proceedings” at issue (para. 7). Similarly, in World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, this Court admitted affidavit evidence in an appeal of a pre-trial motion “for the limited purpose of providing procedural context”, even though it was “not admissible as fresh evidence” (para. 42).

155In this case, very little evidence was formally tendered and the factual context was partly derived from submissions of counsel. As the application judge’s reasons make clear, the evidentiary record was far from complete and there were limits to what could be inferred from it (paras. 4-11, 50 and 62). That said, Mr. McKee’s “disclosure correspondence” is of assistance to the Court and shall be admitted. It shows that defence counsel raised the Detective’s disciplinary record with Crown counsel on July 11, 2023, and that the Crown advised that it possessed the records two days later. This chronology undermines the positions of the Chief of Police and the Detective that the Crown spontaneously divulged that it held expunged records and “was not asked whether Det. Ruecker had a disciplinary record” (A.F., at paras. 7 and 108-9; I.F., Detective Ruecker and Edmonton Police Association, at para. 20).

156Mr. McKee’s “correspondence pending leave to appeal” shall also be admitted. It is relevant to Mr. McKee’s request for solicitor-client costs. It shows that the Chief of Police: (1) is pursuing a test case, raising issues that “go beyond the particular case of the successful party” (Association de médiation familiale du Québec v. Bouvier, 2021 SCC 54, [2021] 3 S.C.R. 805, at para. 123); and (2) reversed its position on disclosure to advance his own strategic interests, to Mr. McKee’s detriment. Although the Chief of Police’s submissions already acknowledge his focus on the broader state of the law, and the new evidence adds little to that point, that evidence shall be admitted in order to complete the record.

VII. Costs

157In granting leave to this interlocutory appeal, the Court exercised its discretion to award costs to Mr. McKee for responding to the leave application “in any event of the cause”.

158On appeal, Mr. McKee seeks solicitor-client costs against the Chief of Police in any event of the cause. He submits this exceptional order is warranted because the Chief of Police intervened below primarily to advance a broader dispute with the Crown, forcing Mr. McKee to pursue disclosure in this Court and delaying his criminal trial. The Chief of Police recognizes that Mr. McKee stands between the Chief and the Crown in this dispute and argues that, as between them, the unsuccessful party should pay costs, but only on the normal basis.

159The Chief of Police submits that the Crown should pay Mr. McKee’s costs. Although the Chief of Police formally brought this appeal, in his view, the Crown initiated the broader litigation by raising the expungement issue despite settled Alberta jurisprudence, and by independently using information from other police files on Mr. McKee’s disclosure, potentially breaching the implied undertaking rule.

160With respect, there is no reason to grant costs against the Crown. It is not the unsuccessful party on this appeal and costs awards against the Crown in criminal matters require a high threshold. Such costs are “an exceptional or remarkable event”, and are intended as a means of disciplining and discouraging incidents of non-disclosure (R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at paras. 81 and 85). There is a strong public policy rationale against such awards absent “exceptional circumstances”: costs risk deterring the Crown from discharging its public-interest duties to the fullest extent (R. v. Taylor, 2008 NSCA 5, 230 C.C.C. (3d) 504, at para. 43).

161The Crown’s conduct does not meet this threshold. The Alberta Regional Office of the Public Prosecution Service of Canada and Alberta Justice jointly issued an advice letter to law enforcement agencies in response to McNeil, setting out what should be included in the “McNeil package” due to the Crown. It stated: “. . . the Crown will advise the accused that ‘expunged findings of misconduct’ can only be obtained from the police agency through an application pursuant to R v O’Connor . . .” and “[t]he Crown has an obligation to notify the accused if they are holding back privileged or third-party private material” (application judge’s reasons, at para. 5).

162However, once put on notice by the defence, the Crown retrieved the Decision and determined that the misconduct was serious, had a realistic bearing on the Detective’s credibility and must be disclosed on any matter in which he had more than peripheral involvement. Despite that clear determination, the EPS resisted disclosure.

163In light of the Chief of Police’s position, the Crown promptly advised the accused to bring an application and indicated it would consent. Although the Crown’s advice letter was ultimately inconsistent with the proper scope of first party disclosure, the Crown did not adhere to it once it concluded the Decision had to be disclosed and was in a position to do so. While disclosure notwithstanding the EPS’s resistance would have aligned with the Crown’s Stinchcombe duty, the Crown’s conduct does not amount to the sort of non-disclosure warranting costs as a deterrent measure. Further, the Crown’s consent to disclosure likely reduced prejudice and delay, and the defence ultimately received the record. In these circumstances, the high bar for awarding costs against the Crown is not met.

164Costs will be ordered against the Chief of Police on a solicitor-client basis. First, notwithstanding the Crown’s determination that the Decision was relevant and should be disclosed, the EPS persisted in resisting its disclosure, forcing Mr. McKee to bring an application. Second, the Chief of Police has acknowledged that his primary concern is the broader state of the law rather than Mr. McKee’s case, causing additional delay to his trial. Mr. McKee, the successful party in this case, should not personally bear the financial costs of this test case.

VIII. Conclusion

165For these reasons, I would dismiss the appeal with costs payable by the appellant Chief of the Edmonton Police Service to the respondent John McKee on a solicitor-client basis, and uphold the order made by the application judge. The motion to file further evidence is allowed.

Appeal dismissed with costs.

Solicitor for the appellant: Chief of the Edmonton Police Service, Edmonton.

Solicitors for the respondent John McKee: Pringle Law, Vancouver.

Solicitor for the respondent His Majesty The King in Right of Canada: Public Prosecution Service of Canada, Ottawa.

Solicitor for the intervener Attorney General of Ontario: Attorney General of Ontario, Crown Law Office — Criminal, Toronto.

Solicitor for the intervener Attorney General of British Columbia: Ministry of the Attorney General of British Columbia — B.C. Prosecution Service, Vancouver.

Solicitor for the intervener Attorney General of Alberta: Alberta Crown Prosecution Service, Appeals and Specialized Prosecutions Office, Calgary.

Solicitors for the interveners Detective Jared Ruecker and Edmonton Police Association: Nugent Law Office, Edmonton.

Solicitors for the intervener British Columbia Civil Liberties Association: Peck and Company, Vancouver.

Solicitors for the interveners the Toronto Police Association and Canadian Police Association: Brauti Thorning, Toronto.

Solicitors for the intervener Police Association of Ontario: Gridin Advocates, Toronto; Police Association of Ontario, Toronto.

Solicitors for the intervener Canadian Civil Liberties Association: Rudnicki & Company, Toronto.

Solicitors for the intervener Myron Demkiw, Chief of the Toronto Police Service: Henein Hutchison Robitaille, Toronto.

Solicitors for the intervener Criminal Trial Lawyers’ Association: Deborah R. Hatch Criminal Law, Edmonton; Ruttan Bates, Calgary.

Solicitors for the intervener Criminal Lawyers’ Association (Ontario): Addario Law Group, Toronto.

Solicitors for the intervener National Police Federation: Nelligan O’Brien Payne, Ottawa.

Records of discipline

36 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 18, or

(b) a period of not less than one and not more than 3 years, as specified in writing by the chief executive officer, has elapsed from the day that an action is taken in respect of a police officer under section 32(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, then 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.

Footnotes

1. 1The PSR was repealed with the coming into force of the Police Conduct and Oversight Regulation, Alta. Reg. 263/2025. However, s. 36 of the new regulation is substantially the same as PSR s. 22. It reads: