Supreme Court case pits prosecutors against Edmonton police over disclosing officer misconduct records

An upcoming case in Canada’s top court is pitting Edmonton police against federal prosecutors over whether police services can refuse to disclose certain misconduct records of officers testifying at criminal trials.

The Supreme Court of Canada has agreed to hear an appeal from the Edmonton Police Service (EPS) in the case of John McKee, who is facing drug and weapons charges after a 2022 investigation.

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EPS launched the appeal after an Alberta Court of King’s Bench judge ruled a disciplinary record relating to the detective who investigated McKee must be disclosed to McKee’s defence. In a legal filing, lawyers for then-Chief Dale McFee argued the detective’s 2015 misconduct conviction had been “expunged” under provincial law.

Requiring similar disclosures in other cases would ignore the privacy rights of officers and “cripple the justice system,” EPS said.

The Public Prosecution Service of Canada — taking the side of the man it is prosecuting — said it has a constitutional obligation to disclose “all relevant information” to an accused, including “records relating to findings of serious misconduct by police officers involved in the investigation.” It urged the Supreme Court to dismiss EPS’s appeal.

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The case has attracted attention across Canada, with a dozen organizations granted intervener status including the chief of the Toronto Police Service, four police unions, multiple civil liberties and defence lawyers’ associations, and attorneys general for Alberta, B.C. and Ontario.

‘Justice system will collapse’: EPS

The Supreme Court’s 2009 McNeil decision requires police forces to provide officer misconduct records to the Crown as part of the evidence disclosure process. The Crown then decides whether the information is relevant and must be disclosed to the defence.

The process is intended to ensure an accused can properly defend themselves in court, McKee’s lawyers said in a legal filing.

“Like all witnesses in a criminal trial, police officers must face probing questions about any prior relevant misdeeds — because the quality of a witness’s word, alone, can ground a criminal conviction,” Daniel Song and Tania Shapka wrote.

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McKee’s defence was initially told the lead investigator — Det. Jared Ruecker — had no disciplinary record. The defence later discovered “by chance” that was not true, and that the Crown had a copy of a 2015 disciplinary decision disclosed during a previous case in which Ruecker testified.

The Crown reviewed its records and agreed to disclose the decision. Details of the case have not been made public, beyond prosecutors saying they are “serious and have a realistic bearing on the credibility of Det. Ruecker.”

EPS pushed back, arguing Ruecker’s misconduct had been “expunged” under Section 22 of Alberta’s Police Service Regulation, which removes disciplinary offences from an officer’s record after five years of good behaviour.

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EPS intervened to block the disclosure, but King’s Bench Justice Eric Macklin sided with McKee. Macklin said defendants should have access to relevant disciplinary records regardless of the passage of time — and whether or not their defence lawyer happened to learn such records existed.

Macklin compared Section 22 to an administrative pardon or record suspension — which does not allow a person to deny a past conviction. In his view, Section 22 was intended to minimize the impact of a misconduct conviction on an officer’s career — for example, when it comes to promotion.

“These subsections do not permit the officer to deny that the finding of misconduct occurred, nor do they safeguard the officer from being questioned about the finding of misconduct,” Macklin said.

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In its brief to the Supreme Court, Edmonton police said allowing Macklin’s decision to stand “creates an impossible situation for policing services, and fails to respect provincial jurisdiction over policing.” It agued Section 22 acts as a pardon, and that the McNeil decision explicitly exempts pardoned convictions from being disclosed.

“Ultimately, this case is about the proper balance between an accused’s right to full answer and defence and the privacy rights of police officers and other individuals,” EPS wrote. “If (Macklin’s) decision is affirmed, not only will the privacy rights of police officers and other criminal justice system participants be complete ignored but the justice system will collapse under the impossibility of the Crown’s disclosure obligations.”

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No it won’t: Crown

The Public Prosecution Service, the federal Crown agency which prosecutes drug cases, said EPS’s claims about Macklin’s ruling are “red herrings.”

“His decision will not ‘cripple the justice system,’” the Crown said.

It accused EPS of asking the Supreme Court to “completely reverse McNeil” by requiring separate applications for an officer’s entire misconduct record.

“This should have been a simple case,” the Crown said. “Just like any prosecution involving an officer with a police misconduct record, the misconduct record of Det. Ruecker should have been provided by the police without prompting.”

The process was complicated by EPS’s belief that Section 22 “erases the past,” the Crown said.

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“The appellant, chief of the Edmonton Police Service, takes the position that the removal of the discipline record trumps McNeil disclosure and allows police to even deny there was a previous finding of misconduct in the first place.”

Lawyers for McKee, the accused, urged the Supreme Court to mandate police provide the Crown “all” expunged records related to a testifying officer’s disciplinary history, to ensure courts don’t receive “a sanitized portrait of a police witness.”

“Police officers unquestionably perform a challenging role in society, often without a shilling of gratitude,” they wrote. “They might at times fall victim to error. But a criminal courtroom is not a naturally hospitable place. The stakes are at their highest.”

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Dates for the hearing have not been set.

jwakefield@postmedia.com

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@jonnywakefield.bsky.social

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