Case information

Criminal law — Evidence — Disclosure — Police disciplinary records — Crown possessing information relating to past misconduct of police detective — Detective involved in investigation leading to charges against accused — Crown determining information of misconduct possibly relevant and material to accused’s prosecution — Misconduct information previously removed from detective’s record of discipline pursuant to Police Service Regulation — Detective and chief of police opposing disclosure — Application judge determining information of misconduct must be disclosed — Whether information in possession of prosecuting Crown includes information provided to Crown’s office outside of prosecution at issue — Whether findings of police misconduct which have been expunged or pardoned are disclosable — Whether additional factors, not listed in R. v. Sullivan, 2022 SCC 19, permit horizontal stare decisis exemptions — Police Service Regulation, Alta. Reg. 356/1990, s. 22.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In 2015, a finding of misconduct was made against an Edmonton Police Service (EPS) detective, and was recorded in a document entitled “Decision of Hearing”. The EPS provided the respondent, His Majesty the King in Right of the Attorney General of Canada (hereafter, the “Crown”), with a copy of the Decision of Hearing in July 2015 (in relation to an earlier prosecution that is unrelated to this application). The Crown redacted the Decision of Hearing to remove irrelevant and personal information, and retained the redacted version.

The finding of misconduct to which the Decision of Hearing relates was removed from the detective’s record of discipline and destroyed by operation of s. 22 of the Police Service Regulation sometime prior to January 6, 2022.

By June 9, 2022, respondent John McKee had been charged with drug and weapons offences, following an investigation in which the detective had been involved. In July 2023, the Crown advised Mr. McKee’s counsel that the Crown possessed disciplinary records regarding the detective. The records related to misconduct which may be relevant and subject to disclosure, as the details of the misconduct were serious and had a realistic bearing on the detective’s credibility. The Crown further advised that the EPS opposed disclosure of the records but the Crown would consent to an application for disclosure if Mr. McKee should choose to bring one.

Mr. McKee brought an application for disclosure in the Court of King’s Bench of Alberta. The application judge held that the information of misconduct in the Decision of Hearing was relevant and disclosable by the Crown as first-party information. The application was granted.