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Criminal - Appeals - Costs. Edmonton (Police Service) v. McKee
In Edmonton (Police Service) v. McKee (SCC, 2026) the Supreme Court of Canada dismissed an appeal, this from an trial-level application judge's interlocutory ruling to the SCC "pursuant to s. 40 of the Supreme Court Act" where a criminal disclosure issue arose regarding police disciplinary records destroyed as per Alberta legislation.
Here the court considered the awarding of costs against the Crown in a criminal appeal context:[159] The 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.
[160] With 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).
[161] The 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).
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