Edmonton (Police Service) v. McKee
Written by Yomi Odusi.
There is something, dare I say, beautiful, when a decision from the highest court of this country is unanimous. It is even more striking when the matter intersects between constitutionally entrenched trial fairness rights and the administrative regulations of police officers sworn to uphold them.
At first glance, Edmonton (Police Service) v. McKee appears to be a case about an expunged disciplinary record.1 Look a little closer, however, and it becomes something much bigger. It is a case about constitutional supremacy. More specifically, it asks whether administrative convenience can ever outweigh an accused’s right to make full answer and defence.
Reading the decision left me with three questions. Can a filing cabinet determine the scope of a constitutional right? Does “expunged” actually mean erased, or merely removed for administrative purposes? And where should the line be drawn between police independence and the Crown’s constitutional duty to ensure a fair trial?
Although these questions lie at the very heart of this case, they also produced one of the more unusual alignments you are likely to see in criminal law. Standing before the Supreme Court were the accused, John McKee, AND the Crown, on one side, and the Edmonton Police Service on the other. Yes, you read that correctly. The Crown agreed with the accused that the expunged finding of police misconduct should have been disclosed. The police disagreed. What began as a seemingly routine disclosure dispute quickly evolved into a constitutional contest over who ultimately controls the flow of information in a criminal prosecution.
I’ll start with the first question because it really gets to the foundation of the Court’s reasoning. Can a filing cabinet determine the scope of a constitutional right? The answer, unsurprisingly, is no. The Supreme Court reaffirmed that administrative rules cannot redefine constitutional obligations. A police service may remove a misconduct finding from an officer’s disciplinary file for employment purposes, but that does not erase history. More importantly, it does not erase information that may be relevant to an accused person’s right to make full answer and defence. Constitutional rights cannot rise and fall based on an internal records policy.
That brings us to the second question. What does “expunged” actually mean? It is easy to assume that once something has been expunged, it simply no longer exists. In reality, that is not what happened here. The misconduct finding was removed from the officer’s disciplinary record pursuant to the Police Service Regulation, but the underlying events never disappeared. Administrative expungement serves an internal employment function. Criminal disclosure serves an entirely different constitutional function. The Supreme Court made it abundantly clear that one cannot displace the other. A regulation governing personnel files cannot transform first-party disclosure into third-party production simply because a document has been removed from a file.
To the final question: where should the line be drawn between police independence and the Crown’s constitutional duty to ensure a fair trial? It is tempting to think the police should decide whether their own disciplinary records are relevant. After all, they possess them. But that is precisely the approach the Supreme Court rejected. Although the police and the Crown work together throughout a criminal prosecution, they remain institutionally distinct. The police investigate crime. The Crown prosecutes it. The constitutional obligation to determine what must be disclosed belongs to the Crown because it is the Crown and not the police that bears the responsibility of ensuring an accused receives a fair trial.
Perhaps the most fascinating aspect of this case is how it arrived before the Supreme Court in the first place. The Crown itself initially had no knowledge of the officer’s disciplinary history because the Edmonton Police Service never disclosed it. The disclosure package provided to prosecutors indicated there was no misconduct information to produce. Only after defence counsel independently discovered the existence of the disciplinary finding did the issue resurface. Once the Crown reviewed information that had previously been disclosed in an unrelated prosecution, it concluded that the misconduct should have been disclosed all along. Think about how unusual that is. The accused was not fighting the Crown over disclosure. The Crown and the accused were standing together, arguing against the police service.
Some might ask whether this decision places an unfair burden on police officers. I took a peek on LinkedIn and found that the burden is a big enough of a concern that the practical enforcement of this ruling will take center stage at the Canadian Police Association biennial conference in September.2
I bet a concern would be officers assuming that every historical disciplinary issue would automatically surface in every criminal trial. However, and critically, this is not what the Supreme Court decided. The Court did not say every misconduct finding must be disclosed to the defence. Rather, it reaffirmed that police must provide potentially relevant disciplinary information to the Crown, and it is then the Crown’s responsibility to determine whether disclosure is required under the well-established framework established in Stinchcombe, O’Connor, and McNeil. The constitutional safeguard lies not in automatic disclosure, but in ensuring that the proper constitutional actor makes the relevance determination.
There is a tendency to think of constitutional rights as lofty principles that only matter in appellate courtrooms. Cases like McKee remind us that they are remarkably practical. They determine who gets access to information, who makes decisions, and ultimately whether a criminal trial is fair. Administrative regulations serve important purposes, but they cannot override constitutional guarantees. If they could, the right to make full answer and defence would depend not on the Charter, but on the contents or absence of a personnel file.
In the end, McKee was never really about a filing cabinet or a disciplinary record. It was about ensuring that constitutional rights are not diminished by administrative convenience. The Supreme Court unanimously reaffirmed that police services cannot decide, through internal regulations, what an accused is constitutionally entitled to receive. That responsibility belongs to the Crown, and the constitutional framework governing disclosure remains exactly where it should be: in the hands of the courts.
Footnotes
- Edmonton (Police Service) v. McKee, 2026 SCC 24
- Michael G, Post (2026).
Bibliography
Edmonton (Police Service) v McKee, 2026 SCC 24.
G, Michael, Post (2026). https://www.linkedin.com/posts/michael-g-7131352b_discipline-share-7477525645590208512-HlAu/
