Canada’s Top Court to Determine Whether Expunged Police Discipline Records Are Subject to Mcneil Disclosure

INTRODUCTION

This fall the Supreme Court of Canada will hear an appeal from R v. McKee, 2023 ABKB 698, a decision of the Alberta superior court which held that police disciplinary records that have been expunged from a police officer’s service record remained subject to the first-party disclosure regime governed by R v. McNeil, 2009 SCC 3. The outcome of this appeal could have a significant effect on police operations across the country.

FIRST AND THIRD-PARTY DISCLOSURE

Prosecuting Crown has an ongoing obligation to disclose any information in which there is a reasonable possibility that it may assist the accused in the exercise of his or her right to make full answer and defence: R v. Stinchcombe, 1991 CanLII 45 (SCC). This is known as “first-party” disclosure. In addition to first-party disclosure, accused persons can apply to court for the production of records held by third parties. Third party production is governed by R v. O’Connor, 1995 CanLII 51 (SCC). Unlike first party disclosure where Crown has the burden to justify non-disclosure, the O’Connor framework requires an accused to justify production. Regardless of whether disclosure is considered in the first-party or third-party context, the fundamental purpose of disclosure is to protect the accused’s constitutional and Charter-protected rights to make full answer and defence.

In McNeil, the Supreme Court “bridged the gap” between first and third party production for the purpose of police discipline records. While Crown and police are separate and distinct entities, police have a legal duty to disclose all relevant information to the Crown, including any information that could assist the accused. For example, misconduct information that may be relevant to an officer’s credibility or reliability is disclosed to Crown in the first-party regime. The Court went on to consider what types of records should be automatically disclosed by police, and what could be withheld for third-party production. The Court identified a number of records that should be automatically disclosed, which are commonly referred to as the “Ferguson Five”:

1. 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].
2. Any outstanding charges under the Canadian Criminal Code or the Controlled Drugs and Substances Act.
3. Any conviction or finding of guilt under any other federal or provincial statute.
4. Any finding of guilt for misconduct after a hearing under the Police Services Act or its predecessor Act.
5. Any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued.

THE MCKEE DECISION – EXPUNGED DISCIPLINE RECORDS

In McKee, an accused applied for production of an investigating officer’s expunged discipline record. The Crown supported the accused’s application and agreed that the record should be disclosed pursuant to McNeil, but the Chief of the Edmonton Police Service (the “Edmonton Chief”), the investigating officer, and the Edmonton Police Association, intervened to oppose production.

Section 22 of Alberta’s Police Service Regulation, enacted pursuant to Alberta’s Police Act, provides that, after a specified period of time, and assuming no other misconduct entries are made during the specified period, discipline records must:

(c) be removed from the police officer’s record of discipline and destroyed, and

(d) not be used or referred to in any future proceedings respecting that police officer.

The Alberta Court of King’s Bench concluded that the word “proceedings” in s. 22 had to be interpreted within the context of the Police Act and could therefore only mean discipline or employment proceedings – not criminal proceedings in which the officer was an investigating member or witness. The Court reasoned that while s. 22 of the Alberta Regulation minimized the effect of a dated misconduct finding on the officer, for the purpose of discipline and employment, the officer would not be at liberty to deny the fact that the finding was ever made. As a result, provided that the expunged misconduct information was relevant to the accused’s case, it had to be disclosed to Crown in the first-party regime.

ON APPEAL: CHIEF OF THE EDMONTON POLICE SERVICE V. MCKEE ET AL.

The Edmonton Chief is appealing McKee the Supreme Court of Canada. The Federal Crown and the Accused are respondents. In addition to the parties, there are several intervenors, including:

• Detective Jared Ruecker and the Edmonton Police Association
• Toronto Police Association & Canadian Police Association
• Police Association of Ontario
• Chief of the Toronto Police Service
• National Police Federation
• Attorney Generals of Ontario, British Columbia, and Alberta
• BC Civil Liberties Association
• Canada Civil Liberties Association
• Criminal Trial Lawyers’ Association
• Criminal Trial Lawyers’ Association (Ontario)

The Appellant: The Chief of the Edmonton Police Service

The Edmonton Chief argues that expunged discipline records must not be included in first party disclosure. While the Edmonton Chief raises several arguments in its factum, we have focused on the operational challenge identified by the appellant including that automatic disclosure of expunged discipline records would leave police departments in an “impossible situation” because they rely on those records when they assess officers for promotion or unit assignments. Expunging discipline records for employment purposes, but not for McNeil disclosure, would create an operational “catch-22”. Police Chiefs would be prohibited from considering an officer’s expunged disciplinary record when assigning the officer to an evidence-gathering role, but that record would then be automatically disclosed on every file the officer worked on, potentially jeopardizing the criminal prosecution. On the other hand, if a police chief were to refuse a promotion or assignment on the basis of an expunged discipline record, this could attract a grievance from the police officer. As noted by the Edmonton Chief, requiring expunged records to be disclosed in the first-party regime could create an untenable labour situation.

Similarly, individual officers are concerned about the impact of the appeal on their careers. An officer who has “rehabilitated” themselves through the passage of time and good behaviour may no longer be eligible for promotion or assignment in evidence-gathering roles if their dated discipline records remain subject to McNeil.

The Respondent: The Federal Crown

The Federal Crown argues that the expunging provisions within provincial police legislation must be interpreted within their legislative context. For example, s. 2 of the Alberta Regulation explicitly provides that it is intended to govern discipline of police officers “for the purposes of Part 5 of the [Police] Act” which governs “complaints and Discipline” for police. As a result, the Federal Crown argues that where the Alberta Regulation states that expunged discipline records cannot be used in any “future proceedings respecting that police officer”, it must refer only to discipline proceedings, not criminal trials.

Furthermore, the Federal Crown argues that because provincial police legislation is not consistent across Canada, exclusion of expunged police discipline records could result in inconsistent disclosure rights for accused persons throughout the country. For example, the waiting period for expungement varies between provinces, and in some cases the officer is required to apply to expunge his or her misconduct record. Furthermore, the Royal Canadian Mounted Police Act does not contain any provision for the expungement of discipline records, so misconduct findings remain on RCMP members’ files throughout their entire career and are therefore always subject to McNeil disclosure.

The Federal Crown argues that if expunged records are excluded from McNeil disclosure, accused persons would have different disclosure rights depending on the police of jurisdiction. Put another way, the right of an accused person to make full answer and defence could vary depending on which police department is conducting the investigation and may offend the principles of fundamental justice.

Finally, the Federal Crown argues that the effect of expunging discipline records is akin to a record suspension, but not a full pardon. The Court in McKee touched on this point, but on appeal the Federal Crown focuses on the practical effects of this distinction. When police discipline records are expunged, the misconduct findings are not retroactively overturned. The Federal Crown says this is problematic, because there is nothing stopping a police witness from being asked on the stand if they have ever been found guilty of misconduct. In that situation, the officer would be obliged to answer truthfully. As stated by the Federal Crown:

Being asked while on the stand in the middle of a trial is the wrong time to find out if a police witness may have relevant misconduct information. This would result in a halt to the trial proceedings, and having the matter set for a separate O’Connor hearing with sufficient notice to the affected third-party police agency. In these days of heightened concern over delays in the criminal justice system and limited court resources, such last-minute disclosure applications would be counter to the efficiency principles laid out in Jordan and McNeil.

The Federal Crown submits that “if a suspended record for a previous conviction or a removed misconduct finding is ripe for cross-examination, it is ripe for disclosure.”

CONCLUSION

The Edmonton Chief and the Federal Crown both make compelling arguments in support of their positions. Depending on the Supreme Court’s decision, police departments across the country may be required to review their McNeil procedures and assess the expunged records of officers in evidence-gathering roles.

The Supreme Court will have to grapple with the issues identified by the parties and intervenors and will hopefully identify a framework that mitigates the operational difficulties identified by the Edmonton Chief, while protecting the fundamental right of accused persons to make full answer and defence to criminal charges.

If you require additional information or further assistance, please contact David McKnight and Naomi Krueger.