Supreme Court Confirms Police Misconduct Information May Be Relevant to an Accused Person’s Defence

LONDON, ON, CANADA, November 10, 2026 /EINPresswire.com/ -- A ruling from the Supreme Court of Canada establishes that police services cannot withhold potentially relevant disciplinary records from prosecutors simply because internal police policies consider those files expunged or removed. This landmark decision reinforces a fundamental principle of Canadian justice: the Crown prosecutor, not the police department, has the ultimate responsibility for determining what relevant information must be disclosed to an accused person, subject to judicial review.

In its unanimous judgment in EPS v. McKee, 2026 SCC 24, released on June 26, 2026, the Supreme Court clarified that police services must provide misconduct information to the Crown where it relates to the investigation or could reasonably affect the accused's case. This ruling prevents municipal police forces from relying on internal disciplinary rules to exclude otherwise relevant misconduct information from the criminal disclosure process.

The case arose after an Edmonton police detective's 2015 misconduct finding was administratively removed from his disciplinary record. The detective subsequently served as the lead investigator in a 2022 criminal prosecution against John McKee. Although the Crown obtained the misconduct decision from another prosecution and determined that it was relevant to the detective's credibility, Edmonton Police Service maintained that the record did not have to be disclosed because it had been expunged. The Supreme Court rejected that position.

Supreme court confirms disclosure obligations for relevant police misconduct

The Supreme Court used this case to firmly clarify the rules around first-party disclosure, often referred to in Canadian law as the McNeil framework. Under these rules, police departments have a duty to provide the Crown with misconduct information that relates to the investigation or could reasonably affect the accused's case. Although police may initially screen disciplinary records for relevance, they must inform the Crown when information is withheld and explain why they considered it irrelevant. The Crown retains the ultimate responsibility for determining what relevant information must be disclosed to the defence.

The Court emphasized that the threshold for relevance is a remarkably low bar. Information must be provided to prosecutors if it could reasonably be of "some use" to the defence in the circumstances of the particular criminal case. Key takeaways from the Court’s decision include:

● The Crown holds ultimate responsibility to decide what relevant misconduct information is ultimately disclosed to the accused, subject to judicial review and applicable legal protections.
● Police services cannot act as the final gatekeepers of their own disciplinary histories, meaning they must log and notify the Crown of any records they seek to withhold.
● Relevant police misconduct information falling within the McNeil framework is generally subject to first-party disclosure rules, rather than automatically requiring the accused to pursue the more demanding third-party production process.

The Supreme Court also confirmed that prosecutors have a duty to make reasonable inquiries when they become aware of potentially relevant police misconduct. This obligation can arise even where the information is held in another prosecution file, provided obtaining it is reasonably feasible. The Crown cannot simply rely on a police service's initial assessment or ignore credible information suggesting that relevant disciplinary records exist.

The Court further emphasized that misconduct need not have occurred during the investigation in question to be relevant. Past misconduct arising in an unrelated case may still require disclosure if it could reasonably assist the accused in challenging the Crown's case, advancing a defence or making decisions about trial strategy. Police disciplinary classifications do not, by themselves, determine whether information is relevant to a criminal prosecution.

Relevance is a low bar. If a past disciplinary issue might help the defence test a witness' reliability, the Crown needs to see it so that the appropriate disclosure determination can be made.

Why removed disciplinary records may still matter to an accused person’s defence

The central controversy in this case involved records of police misconduct that were administratively expunged or removed from active personnel files under Alberta’s provincial police regulations. Edmonton Police Service argued that once a record was expunged internally, they no longer had to hand it over.

The Supreme Court strongly disagreed. Administrative expungement alters a record's internal status for human resources purposes, but it does not erase the underlying factual history of an officer's misconduct or automatically eliminate its relevance to criminal proceedings. The Court also confirmed that police services must maintain administratively expunged disciplinary records so that they can meet their criminal disclosure obligations.

This distinction is critical for anyone standing trial. If a police officer serves as a key witness against you, their past history of dishonesty, bias or excessive force may be relevant to their credibility or to the reliability of the investigation, depending on the circumstances of the case. Access to relevant police disciplinary information allows defence counsel to properly challenge their testimony where legally permissible, assess the reliability of the investigation and determine whether there are grounds for cross-examination or a Charter application. Disclosure of a disciplinary record does not, however, automatically mean that every aspect of that record will be admissible at trial. Understanding the mechanics of how to get disclosure for criminal charges in Ontario is critical, as full Crown disclosure forms the cornerstone of every trial defence. Without it, an accused person cannot make a full answer and defence.

The Supreme Court also recognized that police officers retain legitimate privacy interests. Those interests may be protected through appropriate safeguards, including redactions where justified, but they cannot be used as a blanket reason to withhold relevant information from the defence.
Importantly, the Court found that McKee should not have been required to bring a disclosure application after the Crown had already obtained the misconduct decision and determined that it was relevant and disclosable. In those circumstances, the Crown should have provided the information directly to the defence as part of its first-party disclosure obligations.

Kruse Law Firm explains the ruling’s significance for criminal defence in ontario

This Supreme Court decision reinforces important disclosure protections for individuals facing criminal charges. It ensures that the state cannot hide behind internal administrative paperwork to withhold otherwise relevant evidence of police misconduct.

Although the case arose in Alberta, the Supreme Court's ruling has national implications, including for Ontario police services operating under the Community Safety and Policing Act, 2019. The decision emphasizes that misconduct disclosure must be assessed according to its relevance to the criminal proceedings, rather than being determined solely by internal disciplinary classifications or administrative procedures.

"This is an important decision for anyone facing criminal charges where a police officer's credibility or conduct is in question. A disciplinary record does not automatically become irrelevant simply because it has been removed from an officer's personnel file. The Crown has an obligation to assess potentially relevant misconduct, and the defence is entitled to disclosure where the legal requirements are met," says Mike Kruse, founding partner of Kruse Law Firm.

When your freedom is on the line, you need access to all relevant, non privileged evidence to which you are legally entitled, including information that could expose a flawed police investigation or an unreliable officer. The criminal defence team at Kruse Law Firm defends individuals facing serious charges across Ontario, ensuring all state evidence is thoroughly evaluated and challenged. Our experienced criminal defence counsel understands how to identify potentially relevant police misconduct information, pursue outstanding disclosure and, where necessary, bring applications to obtain records that should be available to the defence.

If you are facing criminal charges and have concerns about police conduct in your case, contact Kruse Law Firm today at 1-800-699-0806 to schedule a free, confidential consultation.

About Kruse Law Firm
Kruse Law Firm is a premier criminal defence law firm operating across Ontario, founded by former Crown prosecutors. The firm provides strategic, aggressive representation for individuals facing impaired driving, sexual assault, domestic assault and other serious criminal charges, ensuring their Charter rights are protected at every stage of the justice system.

Mike Kruse
Kruse Law Firm
+1 519-649-6666
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