The Supreme Court Strengthens Disclosure Rights
In a unanimous decision released today, the Supreme Court of Canada has clarified and strengthened the rules governing what information must be shared with a person accused of a crime — particularly when that information concerns police misconduct. Edmonton (Police Service) v McKee, 2026 SCC 24, is now the leading case on the disclosure and production rights that flow from every accused person's constitutional right to make full answer and defence. It is an important decision for anyone who cares about transparency and fairness in the criminal justice system.
What the Case Was About
John McKee was charged with drug, weapons, and possession offences following a police investigation led by an Edmonton detective. Years earlier, in 2015, that detective had been the subject of a formal finding of professional misconduct — the kind of finding that can bear on an officer's credibility, and that the defence would ordinarily be entitled to know about.
There was a complication. Under Alberta's police regulations, the misconduct finding had been administratively "expunged" — removed from the detective's disciplinary record — before Mr. McKee was ever charged. When the police gave the Crown the standard disclosure package for Mr. McKee's prosecution, they reported that the detective had no relevant disciplinary records. As it happened, the Crown's office did have a copy of the misconduct decision, retained from an unrelated prosecution, but the individual prosecutor assigned to Mr. McKee's case did not know it was there. The defence only learned of the misconduct by happenstance.
Once the issue surfaced, the assigned Crown retrieved the record, reviewed it, and concluded it should be disclosed. The police disagreed and resisted disclosure. Mr. McKee brought an application for disclosure, which the Crown consented to, and the application judge ordered the record disclosed. The Chief of the Edmonton Police Service appealed all the way to the Supreme Court of Canada, arguing that expunged disciplinary records should fall outside the normal disclosure rules, and that the Crown was not truly "in possession" of a record sitting in an unrelated file. The Supreme Court rejected both arguments and dismissed the appeal.
A Quick Primer: What Is "Disclosure"?
To understand why this decision matters, it helps to understand how disclosure works. The right to disclosure flows from a more fundamental right: the right to make full answer and defence, protected by the Charter. A person cannot meaningfully defend against a criminal charge if they do not know what relevant evidence exists.
Canadian law uses three related frameworks, organized around who holds the information. The first, from a case called Stinchcombe, governs "first party" disclosure: the Crown's obligation to hand over all relevant, non-privileged material in its possession. The second, from a case called O'Connor, sets out a more demanding, two-stage process for obtaining relevant records held by genuine third parties, such as a hospital or a counsellor. The third, from a case called McNeil, confirms that relevant police misconduct records belong in the first-party Stinchcombe stream, not the more restrictive third-party stream.
One of the most valuable parts of McKee is that Justice Martin, writing for the unanimous Court, explained how all three frameworks rest on the same constitutional foundation: the accused's right to make full answer and defence. They are not disconnected technical rules, but three expressions of a single underlying principle, organized by who holds the information and how relevant it is.
The Key Holdings
Several important principles emerge from the decision:
Administrative expungement does not change the disclosure analysis. The Court held that removing a misconduct finding from an officer's internal disciplinary record changes the record's administrative status, not its character as a misconduct finding capable of assisting the defence. An expunged finding is still a finding that may bear on an officer's credibility, reliability, or the integrity of an investigation. The age of a record may affect how relevant it is in a given case, but it cannot be used to categorically exclude the record from disclosure. The Court also held that the provincial regulation governing internal police discipline simply does not govern criminal disclosure at all.
Substance governs over form. The Court rejected the argument that disclosure of police misconduct should be limited to bare "criminal record type information" — dates, offences, and penalties. Confining disclosure that way, Justice Martin wrote, would run counter to the principle that it is substance, not form, that governs. What matters is whether the information is relevant, not what category or format it happens to fall into.
The threshold for relevance is low. The Court described relevance as a low, utility-based threshold: if something might help even a little in figuring out the truth, it is generally relevant and should make its way to the defence. The Court also clarified that the phrase "obviously relevant," used in earlier cases, does not impose a higher standard — it is simply shorthand for relevant material that the police must pass along even though it sits outside the main investigative file.
The police are not the final word on relevance. The police play a real but bounded role: they triage their files, pass relevant material to the Crown, and — importantly — where they decide to withhold something as irrelevant, they must tell the Crown what they are withholding and why. It is the Crown, as a minister of justice rather than a partisan litigant, who makes the call on what gets disclosed, subject to review by the courts. Police privacy concerns can be raised and accommodated through measures like redaction, but they cannot be used to quietly keep relevant material from the defence.
Why This Decision Matters
McKee is good news not only for people accused of crimes, but for the administration of justice as a whole. A criminal trial is meant to be a search for the truth, not a contest in which one side can keep relevant information hidden. As the Supreme Court recognized years ago in McNeil, the Crown and the defence are not true opponents when it comes to uncovering relevant information — both are meant to serve the goal of a fair and accurate result.
Transparency about police conduct is a particularly important part of that picture. Where an officer involved in an investigation has a history of misconduct that bears on their credibility, an accused person is entitled to know. Allowing that history to be quietly erased — and thereby kept from the defence — would undermine confidence in the fairness of criminal trials. McKee closes that gap, and it does so emphatically: the Court not only dismissed the appeal but ordered the Chief of Police to pay Mr. McKee's legal costs on the most generous scale available.
Our Firm's Involvement
Rudnicki & Company was pleased to act for the Canadian Civil Liberties Association, which intervened in this appeal to argue for a broad, flexible, and collaborative approach to disclosure. We are gratified that the Court has affirmed strong disclosure rights in what is now a leading authority on this area of the law.
What This Means for You
If you are facing criminal charges, the practical message of McKee is straightforward: you have a robust right to know about relevant information in the hands of the state, including relevant records of misconduct by the police officers involved in your case. That right does not disappear simply because a record has been internally expunged or filed away in an unrelated case.
Disclosure is also not a passive process. Courts have repeatedly emphasized that defence counsel play an active role in pursuing relevant material and raising disclosure issues with the Crown in a timely way. An experienced criminal defence lawyer will know what to look for, what questions to ask, and how to press for information the defence is entitled to receive. Where that information is being withheld — for whatever reason — McKee provides powerful support for getting it disclosed.