[Appeal Watch]: R v McKee : Is Information of Police Misconduct First-Party Disclosure?

by Chelsea Latremouille · March 2, 2025

In R v McKee [41110], the Supreme Court (SCC) will decide whether a document in the possession of the Crown – containing information of police misconduct – obtained in respect of a unrelated investigation constitutes first-party disclosure automatically provided to the accused. This decision will likely turn on whether the Supreme Court adopts a narrow or broad interpretation of their earlier decision in R v McNeil about the scope of police and Crown disclosure obligation with respect to information of police misconduct.

Facts

John McKee, the Accused, is charged with several drug and weapons offences. Jared Ruecker, a detective with the Edmonton Police Service (EPS), was involved in the investigation leading to the charges against the Accused. Mr. McKee brought an application for disclosure of a document entitled “Decision of Hearing” released in July 2015 regarding a filing of misconduct against Det Ruecker (McKee, para 1). The Chief of the Edmonton Police and Det Ruecker, the appellants, opposed the application. They appealed to the Supreme Court to over-turn the decision below ordering disclosure and the Supreme Court granted leave on EPS’s appeal on November 7, 2024.

On April 14, 2009, the Public Prosecution Service of Canada (Crown) for Alberta and Alberta Justice jointly sent a letter to law enforcement agencies with advice in response to the Supreme Court’s decision in R v McNeil, 2009 SCC 3 [McNeil]. McNeil requires that police agencies provide the Crown with information of police misconduct; the Crown then must act as a gatekeeper to determine if such information must be disclosed to the accused. It is not disputed that EPS provided the Crown with Det Ruecker’s Decision of Hearing on only one occasion in July 2015 in relation to an earlier prosecution involving a different accused (McKee, para 6).

The finding of misconduct to which the Decision of Hearing relates was removed and destroyed from Det Ruecker’s record of discipline by operation of the section 22 of the Police Service Regulation, Alta Reg 356/1990 (PSR) at some point prior to January 6, 2022. Section 22 of the PSR mandates the automatic removal of specific items from the officer’s record of discipline based only on the passage of time and absence of further contraventions (McKee, para 59).

The Crown learned of Det Ruecker’s “expunged” record at some point prior to July 13, 2022, although it is unclear if the Crown was provided with that information directly from the EPS or if the Crown inferred that information on the basis of the McNeil Package provided to them on June 9, 2022 (McKee, paras 8-9).

On July 13, 2023, the Crown sent a letter to the Accused’s counsel advising the following:

that the Crown was in possession of a disciplinary record regarding Det Ruecker and that those records had been “expunged” by operation of the Police Act;
that the “expunged” records have been reviewed by the Crown and the Crown has determined that the details of the misconduct are serious and have a realistic bearing on Det Ruecker’s credibility. Therefore, they must be disclosed.
That the EPS opposes disclosure of the “expunged” records. Should the Accused bring an application for disclosure of the “expunged” records, the Crown will consent to the application. (McKee, para 9).

In the application hearing, the Accused sought disclosure of the Decision of Hearing. The Edmonton Chief of Police and Det Ruecker opposed the application and argued that because the finding of misconduct to which the Decision of Hearing relates has been removed from Det Ruecker’s record of discipline had been removed and destroyed pursuant to s22 of the PSR, it is no longer subject to first-party disclosure according to the directions in McNeil (McKee, para 2).

Common Law Disclosure Regime

In the landmark case of R v Stinchcombe, [1991] 3 SCR 326 [Stinchcombe], the SCC held that the Crown is under a duty to disclose to the defence all evidence that could possibly be relevant to the case against the accused. The Crown’s first-party disclosure obligations under Stinchcombe encompass only material relating to the Crown’s case in the possession or control of the prosecuting Crown. McNeil addresses a perceived gap in the Stinchcombe regime: some documents, such as police misconduct reports, are not in the possession or control of the Crown, yet they ought to be provided to the accused as a matter of trial fairness and would likely be disclosed if a third-party records O’Connor application were brought.

McNeil is intended to simplify the process for producing information of police misconduct to the accused. In cases where the Crown becomes aware of potentially relevant information in the hands of third parties (i.e., police services), the Crown has a duty to inquire and obtain the evidence, rather than require the accused to pursue an O’Connor application. In this way, McNeil “bridges the gap” between first-party Stinchcombe disclosure and third-party O’Connor records.

Just as the Crown has a duty to inquire of potentially relevant information, the police, according to McNeil, are under a corollary duty to disclose disciplinary information that could be relevant to the Crown. The SCC identified five types of records that would be covered by this police duty. The list is usually referred to as the Ferguson five (McNeil, para 57):

Any conviction or finding of guilt under the Canadian Criminal Code or under the Controlled Drugs and Substances Act for which a pardon has not been granted;

Any outstanding charges under the Canadian Criminal Code or the Controlled Drugs and Substances Act;

Any conviction or finding of guilt under any other federal or provincial statute;

Any finding of guilt for misconduct after a hearing under the Police Services Act or its predecessor Act;

Any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued.

Issue

Should the information of misconduct contained in the Decision of Hearing – a document in the Crown’s possession – be disclosed to the Accused as a first-party record?

Decision

The application judge, Justice Macklin, determined that the issue of whether the information of misconduct in the Crown’s possession should be disclosed to the accused as first-party disclosure rested on four sub-issues:

How do the principles of stare decisis affect my decision?
What is “information of misconduct” as contemplated by McNeil?
How does the fact that the Crown is in possession of the record affect my decision?
What is the purpose and function of PSR s 22 and is it the equivalent of a pardon under any Federal legislation?
Is the information of misconduct contained in the Decision of Hearing first- or third-party for disclosure purposes? (McKee, para 12)

Stare Decisis

Macklin J acknowledged that there are cases from the Alberta Court of Kings Bench that consider the interaction of McNeil and PSR s22 and find that “expunged” records are not subject to McNeil disclosure obligations. However, Macklin J determined that he was not bound by these decisions because they are distinguishable (in those cases, the accused persons made broad requests for disclosure, whereas in this case the sought a particular record that is known to exist) (McKee, para 43). In addition, there has been subsequent appellate authority that warrants revisiting the conclusions drawn in the previous authorities. Finally, the relevant Federal legislation (Criminal Records Act, RSC 1985, c C-47) upon which the Courts relied to find that the PSR s 22 was equivalent to a pardon has since been repealed (McKee, para 44).

Information of Misconduct

Macklin J dismissed the EPS’s argument that the Decision of Hearing document should not be fall under any of the Fergusson five categories of first party disclosure. The Ferguson five was never intended to be exhaustive; in McNeil, the SCC directed that the ultimate criterion for disclosure is whether there is “information” of misconduct that is likely relevant to the case (McKee, para 45).

While the Decision of Hearing was not in the record before the application judge, Macklin J inferred that it contained the reasons of the administrative body that held the hearing with respect to the complaint of Det Ruecker’s misconduct: “Some of the contents of the Decision of Hearing would clearly meet the definition of ‘information of misconduct’ as contemplated by McNeil. It was reviewed by the Crown and deemed to be a record of serious misconduct that may have a bearing on the Accused’s case” (McKee, para 46).

Crown is in Possession of the Record

The Accused and the Crown contended that PSR s22 does not bar disclosure by the Crown of the Decision of Hearing: “If the Crown is in possession of information that it knows to be relevant to an accused’s ability to make full answer and defence, it is obligated to provide that information, barring any legal privilege or prohibition, and regardless of whether PSR s22 is engaged.” (McKee, para 48). By contrast, the Chief of Police argued that the Decision of Hearing is not lawfully in the hands of the prosecuting Crown. Furthermore, Det Ruecker argued that the Stinchcombe regime only extends to material relating to the Accused’s case, not material collected by the prosecution service with respect of another accused (McKee, para 49).

Macklin J determined that the Crown is bound by McNeil disclosure with respect to the Decision of Hearing. Once the police fulfill their disclosure obligations to the Crown by providing information of any police disciplinary action taken in respect of misconduct, the Crown acts as a gatekeeper in determining if any parts of that information should be turned over to the defence in compliance with the Crown’s Stinchcombe obligation (McKee, para 53).

Purpose of PSR Section 22

After conducting a statutory interpretation analysis of PSR s22 that determined that the PSR s22 does not have the effect of nullifying a finding of misconduct akin to free or conditional pardons (McKee, para 64), Macklin J determined that the question of whether a record is “expunged” does not affect the Crown’s disclosure obligations. Nor is it relevant whether the accused is aware of that record. The question is whether the information contained is likely relevant (McKee, para 67).

Is the Information of Misconduct in the Decision of Hearing First- or Third-party?

Macklin J found that the Decision of Hearing is first-party disclosure. The operation of s22 of the PSR to “expunge” the record has no bearing on whether this information should qualify as first-, or third-party disclosure. As Macklin J puts it, “That information of misconduct does not suddenly become irrelevant because of an automatic administrative action” (McKee, para 68). The information contained in the Decision of Hearing has possible relevance to the accused’s ability to make full answer and defence and this relevance is not affected by the administrative expungement pursuant to s22 of the PSR.

Analysis

In Mr. McKee’s response to the Chief of the Edmonton Police Service’s Application for Leave to Appeal, the respondent contested the Chief’s assertion that the decision below presents an issue of public importance – as required for the SCC accept the case. And while the SCC did grant leave in this case, the respondent raises good arguments that this case does not implicate broad issues of police disclosure across Canada, nor does it pose dire results for Crown disclosure.

The Appellant asks the Court to reconsider its decision in McNeil to effectively constrain the scope of its ruling to the Ferguson Five discussed above. However, Macklin J was correct that these categories were never intended to be exhaustive, and, where an individual’s constitutionally protected fair trial rights are in play, the Court should take a broad and purposively approach to the interpretation of their prior decisions.

The Appellant argues in their Factum that should the SCC affirm the decision below, they risk the “catastrophic failure of the criminal justice system”:

“Affirming the decision below would mean that any information in the entirety of the Crown’s office is in the ‘possession of the Prosecuting Crown’ and must be reviewed by the Crown on every file and disclosed unless clearly irrelevant. Implementing this change would result in a catastrophic failure of the criminal justice system, as the Crown could never meet its disclosure obligations” (Factum of the Appellant, para 1).

It is kind of the Chief of the Edmonton Police to be so concerned about the Crown’s ability to fulfill their disclosure obligations. Yet, it is perhaps worth observing that the Crown is in fact intervening on behalf of the Respondent. It is difficult to see this case as about anything other than an attempt to preserve the privacy of expunged records of police misconduct.