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Criminal - Disclosure (3). 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 considers what police misconduct records are relevant for criminal disclosure purposes:B. What Qualifies as Relevant Information of Police Misconduct?
[85] To 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
[86] Relevance 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).
[87] Relevance 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.
[88] The 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”
[89] In 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.
[90] However, 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
[91] The 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] [92] Not 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).
[93] Findings 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.
[94] Second, 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. [95] Clearly, 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”
[96] The 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.] [97] McNeil 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)).
[98] If “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.
[99] This 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.
[100] In 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.
[101] Thus, “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.)
[102] However, 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.
[103] Assessing “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
[104] The 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.
[105] The 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] [106] This 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.
[107] There 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”).
[108] The “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)).
[109] There 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.
[110] A 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.
[111] The 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.
[112] Accordingly, 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
[113] In 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).
[114] I 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).
[115] In 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.
[116] The 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.
[117] Police 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).
[118] That 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.
[119] I 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.
[120] First, 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).
[121] Second, 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.
[122] Third, 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. . 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 considers which of the three criminal disclosure categories that 'administratively expunged records' fall under [it's McNeil]:(b) Expunged Administrative Records Fall Within the McNeil Framework
[79] 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. 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.
[80] Indeed, 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.
[81] The 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.
[82] The 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.
[83] Under 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.
[84] The 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).
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