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Criminal - Disclosure (2). Edmonton (Police Service) v. McKee [SCA s.40 appeal route]
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 summarizes the case:[1] Every 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.
[2] The 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]
[3] The 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.
[4] 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.
[5] Although 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.
[6] The 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.
[7] With 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.
[8] Thus, 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.
[9] Police 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. . 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 sets out the Charter basis [s.7 and s.11(d)] of the criminal disclosure regime, and the three categories [Stinchcombe, O'Connor and McNeil] under which disclosure can fall:A. Which Disclosure Framework Governs Administratively Expunged Police Misconduct Records?
[22] To 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
[23] Canada’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).
[24] What 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.
[25] While 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.
[26] In 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
[27] The 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.
[28] The issue in this appeal is how administratively expunged records of police misconduct fit within this framework.
(a) First Party Disclosure: The Stinchcombe Framework
[29] Stinchcombe 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).
[30] The 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. [31] The 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).
[32] Stinchcombe 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).
[33] The 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).
[34] On 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).
[35] The 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
[36] In 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.
[37] Such 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).
[38] O’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).
[39] Under 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).
[40] At 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).
[41] In 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).
[42] The “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.
[43] Where “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).
[44] Determining 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).
[45] Two 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).
[46] Where 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.] [47] Put 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) [48] In 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
[49] In 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.
[50] In 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.
[51] Mr. 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.
[52] McNeil 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).
[53] McNeil 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).
[54] Although 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.
[55] In 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.).
[56] Charron 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] [57] The 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
[58] After 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. . R. v. Bauman
In R. v. Bauman (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against convictions in "two counts of first degree murder".
The court considered an issue of 'lost evidence', here in the context of the Crown's disclosure duties:[114] The Crown’s duty of disclosure carries with it an obligation to preserve relevant evidence. Where the original form of the evidence is no longer available, the Crown must provide an explanation. “If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached”: R. v. Bero (2000), 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.), at para. 30.
[115] The trial judge’s finding that the Crown had provided a satisfactory explanation for the non-availability of the bone itself, and that its destruction was not due to unacceptable negligence, are entitled to deference on appeal: R. v. Murray, 2025 ONCA 222, 176 O.R. (3d) 502, at para. 78. The appellant has not established a palpable and overriding error tainting any of the findings that support the trial judge’s conclusions.
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