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Criminal - Disclosure (4). 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 an almost step-by-step guide to criminal disclosure, from both the police and the Crown's perspectives:D. Guidance on Disclosure
[148] I 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 Code or an expungement under the Expungement of Historically Unjust Convictions Act has not been granted. The “Ferguson Five” aid triage but are not all that must be considered. The substance, not form, of the information controls, and “serious misconduct” is defined by its relationship to relevance.
(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. . 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 the respective roles of police and the Crown in criminal disclosure duties:C. What Are the Respective Roles of the Police and the Crown for the Purposes of Disclosure?
[123] The 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.
[124] In 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.
[125] I 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).
[126] This 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
[127] In 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.
[128] In 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).
[129] Not 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).
[130] Importantly, 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).
[131] 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 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.
[132] The 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.
[133] This 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
[134] The 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.
[135] Under 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.
[136] The 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.
[137] The 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.
[138] In 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
[139] McNeil 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?
[140] An 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)).
[141] While 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).
[142] The 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
[143] There 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.
[144] 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 (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
[145] The 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.
[146] The 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.
[147] The 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).
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