Disclosure of Police Misconduct Records

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.

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.

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

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