Supreme Court Rules Police Misconduct Cannot Be Hidden from Prosecutors

2026-11-10 global

Ottawa, Tuesday, 10 November 2026.
Canada’s top court established that police cannot withhold disciplinary files from prosecutors, ruling that administrative expungement policies cannot override an accused person’s constitutional right to access relevant defense evidence.

A Landmark Ruling with National Implications

On November 10, 2026, the Supreme Court of Canada issued a unanimous judgment in EPS v. McKee, 2026 SCC 24, affirming that police services cannot withhold potentially relevant disciplinary records from prosecutors based on internal administrative expungement policies [1][5]. The decision clarifies that the constitutional right to a full answer and defence—enshrined in Section 7 of the Canadian Charter of Rights and Freedoms—requires prosecutors to have access to all material that could reasonably affect the outcome of a criminal trial, regardless of whether the misconduct was later administratively removed from an officer’s personnel file [1][5][alert! The ruling explicitly rejects the notion that expungement nullifies relevance, citing the McNeil framework for first-party disclosure obligations [1][5]. The Court emphasized that relevance is assessed on a utility-based threshold: if the information could be of ‘some use’ to the defence, it must be disclosed to the Crown for assessment [1][5]. This standard applies nationally, including to provinces operating under modern policing statutes like Ontario’s Community Safety and Policing Act, 2019 [1][GPT].

The Case That Redefined Disclosure Obligations

The ruling stems from a 2015 misconduct finding against an Edmonton police detective, which was later administratively expunged. Despite the expungement, the detective served as the lead investigator in the 2022 criminal prosecution of John McKee, prompting a legal challenge over the concealment of his disciplinary history [1]. The Supreme Court’s decision dismantles the argument that internal expungement policies can shield police misconduct from disclosure, reinforcing that prosecutors—not police services—hold the ultimate responsibility for determining what constitutes relevant evidence under the Stinchcombe disclosure framework [1][5]. Legal experts note that this shift places greater scrutiny on Crown prosecutors to independently assess and disclose material that might impact an accused’s credibility or the fairness of their trial [1]. ‘A disciplinary record does not automatically become irrelevant simply because it has been removed from an officer’s personnel file,’ stated Mike Kruse, founding partner of Kruse Law Firm and former Crown prosecutor. ‘The Crown has an obligation to assess potentially relevant misconduct, and the defence is entitled to disclosure where the legal requirements are met’ [1].

Operational and Governance Repercussions Across Sectors

The Supreme Court’s ruling carries immediate operational consequences for public-sector risk management, municipal liability insurers, and corporate entities engaged in regulatory enforcement or internal compliance investigations [GPT]. Public-sector organizations must now ensure their disclosure protocols align with the Court’s interpretation of relevance, which extends beyond the investigative file to include material ‘outside the investigative file’ if it could reasonably affect the accused’s case [3]. For municipal liability insurers, this decision heightens the potential financial exposure of police services in misconduct-related litigation, as undisclosed records could now be deemed material to a defendant’s defence strategy [GPT]. Corporate entities navigating cross-border regulatory frameworks must also account for the precedent, particularly in industries where law enforcement collaboration is critical, such as healthcare or transportation [GPT]. The ruling’s impact is not confined to criminal law; it sets a precedent for how internal disciplinary records are treated in administrative or civil proceedings where credibility and transparency are at issue [alert! The Court’s reasoning suggests that the ‘low threshold’ for relevance could influence future cases involving professional misconduct, though this has not yet been explicitly tested [1][3].

A Judicial Clarification with Lasting Effects

The Supreme Court’s decision in EPS v. McKee is the latest in a series of rulings that underscore the judiciary’s commitment to balancing law enforcement efficiency with constitutional rights. By rejecting the notion that administrative expungement equates to irrelevance, the Court has reinforced the principle that the justice system’s integrity depends on transparency, even when it involves sensitive internal disciplinary matters [1][5]. The ruling also clarifies the division of responsibilities between police services and prosecutors, ensuring that Crown attorneys are not unduly influenced by institutional discretion when assessing disclosure obligations [1][5]. Legal scholars point out that this decision aligns with broader trends in Canadian jurisprudence, where courts have consistently prioritized fairness over procedural convenience in criminal trials [GPT]. ‘This is an important decision for anyone facing criminal charges where a police officer’s credibility or conduct is in question,’ Kruse noted. ‘The Crown’s obligation to assess potentially relevant misconduct is now more clearly defined, and the defence’s right to disclosure is strengthened’ [1]. As police services across Canada review their internal policies in response to the ruling, the Supreme Court has delivered a definitive message: no misconduct record is immune from scrutiny if it bears on the principles of justice.

Sources

police accountability judicial disclosure