R v McKee, 2023 ABKB 698

Court of King’s Bench of Alberta Citation: R v McKee, 2023 ABKB 698 Date: 20231208 Docket: 220983100Q1 Registry: Edmonton Between: John McKee Applicant/Accused - and - His Majesty the King in Right of the Attorney General of Canada Respondent - and - Chief of the Edmonton Police Service, Edmonton Police Association, Detective Jared Ruecker Intervenors _______________________________________________________ Reasons for Decision on Disclosure of the Honourable Justice Eric F. Macklin _______________________________________________________ I.

INTRODUCTION [ 1 ] John McKee (Accused) is charged with several drug and weapons offences. Jared Ruecker is a detective with the Edmonton Police Service (EPS) who was involved in the investigation leading to the charges against the Accused. The Accused brings this application for disclosure of a document entitled “Decision of Hearing” released in July 2015 regarding a finding of misconduct against

Det Ruecker. [2] The Public Prosecution Service of Canada (Crown) is in possession of the Decision of Hearing, determined that informationof misconduct contained within is possibly relevant and material to the Accused’s prosecution, and advised the Accused of the same.

TheChief of Police for the Edmonton Police Service (Chief of Police) and Det Ruecker oppose disclosure to the Accused of the Decision ofHearing because the finding of misconduct to which the Decision of Hearing relates has been removed from Det Ruecker’s record ofdiscipline and destroyed, pursuant to s 22 of the Police Service Regulation, Alta Reg 356/1990 (PSR).

The Chief of Police and DetRuecker argue that the Decision of Hearing is therefore no longer subject to first-party disclosure pursuant to the directions in R vMcNeil, 2009 SCC 3. [3] I find that the information of misconduct contained in the Decision of Hearing is first-party information and must thereforebe disclosed to the Accused by the EPS and the Crown. II.

FACTUAL BACKGROUND [4] The facts are derived from three affidavits tendered by the Chief of Police, a letter tendered by the Accused and, with theagreement of all parties, submissions of counsel where the facts are not in dispute. [5] On April 14, 2009, the Public Prosecution Service of Canada for Alberta and Alberta Justice jointly sent a letter to lawenforcement agencies with advice in response to McNeil (2009 Advice Letter).

The letter contains the following information: • As soon as possible, each Law Enforcement Agency should develop a protocol and implement a mechanism for ensuring thatpolice member misconduct information is included in every disclosure package sent to the Crown.

This includes: o Ongoing or concluded investigations into complaints about police member misconduct relating to the same subject matter underlyingthe charge against the accused (to be marked as a “concurrent investigation”) regardless of whether the investigation results in criminalor misconduct charges; o Misconduct information unrelated to the investigation of the accused (to be marked as a “McNeil Package”) that should contain alisting of misconduct information related to the credibility and reliability of the police member witness, including the following: ▪ All convictions under the Criminal Code of Canada (Criminal Code) and the Controlled Drugs and Substances Act (CDSA), for whicha pardon has not been granted; ▪ All outstanding charges under the Criminal Code and CDSA including Alberta charges and charges from out of province; ▪ All convictions or findings of guilt under any other federal or provincial statute other than those convictions for speeding under theTraffic Safety Act, RSA 2000, c T-6; ▪ All findings of guilt after a hearing for misconduct under the Police Act, RSA 2000, c P-17 (Police Act) or Royal Canadian MountedPolice Act, RSC 1985, c R-10 (RCMP Act) that have not been expunged pursuant to s 22 of the Police Service Regulation; ▪ All outstanding charges of misconduct under the Police Act or RCMP Act for which a Notice of Hearing has been issued; ▪ Any other information that is “obviously relevant” such as substance abuse issues, matters that go to the member’s capacity to testify,or their credibility or reliability in relation to a specific case before the Court. • Police should not review the misconduct information for relevance, but leave that assessment up to the Crown as part of theircontinuing obligation to provide full disclosure to the accused; • The Crown will not request material outside those recommended in the Ferguson Report (infra, at paras 16 and 18) unless theaccused provides sufficient supporting information identifying the relevance of the material to an issue in their case.

However, theCrown will advise the accused that “expunged findings of misconduct” can only be obtained from the police agency through anapplication pursuant to R v O’Connor (SCC); • The Crown has an obligation to notify the accused if they are holding back privileged or third-party private material. [6] It is not disputed that EPS provided the Crown with Det Ruecker’s Decision of Hearing on only one occasion in July 2015and in relation to an earlier prosecution involving a different accused.

There is no evidence of any undertakings, implied or otherwise, asto the Crown’s use and disclosure of the Decision of Hearing, other than those that are contained in the 2009 Advice Letter. The Crownredacted the Decision of Hearing to remove irrelevant and personal information and retained the redacted version. [7] The Chief of Police concedes that it did not request the return of the Decision of Hearing at the conclusion of theprosecution for which it was initially provided.

It can therefore be inferred that EPS knew that the Crown retained the Decision ofHearing beyond the conclusion of the prosecution for which it was initially provided, and the Crown would refer to and review theDecision of Hearing for relevance in any subsequent prosecution in which Det Ruecker had more than peripheral involvement and whereit had a realistic bearing on a case against an accused.

Relying on the 2009 Advice Letter, however, EPS may not have expected theCrown to disclose information regarding any findings of misconduct removed from an officer’s record of discipline and destroyedpursuant to PSR s 22. [8] The finding of misconduct to which the Decision of Hearing relates was removed and destroyed from Det Ruecker’s recordof discipline by operation of PSR s 22 sometime prior to January 6, 2022. On June 9, 2022, EPS provided to the Crown a McNeilPackage for use in this prosecution of the Accused. This included the following as it relates to Det Ruecker:

• McNeil Package: None (current as at Jan 6, 2022 and June 9, 2022) [ 9 ] The Crown learned of Det Ruecker’s “expunged” record at some point prior to July 13, 2023, although it is not clear whether that information was provided directly to the Crown by the Professional Standards Branch of EPS (PSB) or if the Crown inferred that information from the McNeil Package received on June 9, 2022. On July 13, 2023, the Crown sent a letter to the Accused’s counsel advising of the following: • The Crown possesses disciplinary records regarding Det Ruecker.

PSB has advised the Crown that those records have been “expunged” by operation of the Police Act . • The Crown takes the position that the misconduct itself may be potentially relevant and subject to disclosure on prosecutions. • The “expunged” records have been reviewed by the Crown and it has been determined that the details of the misconduct are serious and have a realistic bearing on Det Ruecker’s credibility and therefore must be disclosed on any matter in which Det Ruecker had more than peripheral involvement. • EPS opposes disclosure of the “expunged” records.

Should the Accused bring an application for disclosure of the “expunged” records, the Crown will consent to the application. [ 10 ] The “disciplinary records” referred to in this letter is the Decision of Hearing. There is no evidence before me as to what is contained in the Decision of Hearing, or with respect to the Crown’s management and storage of the Decision of Hearing. However, I can infer that it must include information of misconduct by Det Ruecker and that it would have been kept in some electronic file(

s) together with all such reports. [ 11 ] The following facts relate to how police disciplinary information is managed and stored by EPS: • Police disciplinary hearing decisions are published on an internal EPS intranet site with the names of the officers redacted (with some exceptions); • Police disciplinary hearing decisions can be requested through the Freedom of Information and Protection of Privacy (FOIPP) unit of EPS.

Vetted decisions are provided upon request unless the decision has been “expunged” prior to the FOIPP request being fulfilled; • PSB has an electronic system of housing and managing all PSB files that is separate from EPS criminal investigative files. PSB files leading to proven misconduct of a subsequently “expunged” disciplinary record are not destroyed and remain in the record-keeping system; • PSB investigations include content similar to what is found in a criminal investigation (witness interviews, CCTV, etc). • McNeil packages are stored on a PSB drive.

McNeil packages that are “expunged” are moved to an historical/inactive file. Prior to May 2023, EPS had an automated system of reporting McNeil packages to the Crown. The system is transitioning to a manual system that will provide the Crown active McNeil packages for all members involved in a criminal investigation. McNeil packages are authored by PSB and contain the following information: o Convictions under the Criminal Code and CDSA for which a pardon has not been granted.

Information provided includes the charge, the conviction date, and the disposition; o Outstanding charges under the Criminal Code and CDSA including Alberta and out-of-province charges. No evidence was led on what information would be provided if this was the case; o Convictions or findings of guilt under any other federal or provincial statute of a sufficiently serious nature to have an impact on the credibility of the police officer witness.

No evidence was led on what information would be provided if this was the case; o Findings of guilt for misconduct pursuant to the Police Act not including contraventions of the PSR that have been removed from the officer’s record of discipline pursuant to PSR s 22 or matters disposed of pursuant to Police Act s 45(4). Information provided includes the charge, the disciplinary hearing conviction date, the finding, and the disposition; o Outstanding charge(

s) of misconduct under the Police Act for which a Notice of Hearing has been issued. No evidence was led on what information would be provided if this was the case. III. ISSUES [ 12 ] The main issue to be decided is whether the Decision of Hearing or, more precisely, information of misconduct in the Crown’s possession should be disclosed to the Accused as a first-party record. The following issues need to be determined in order to decide the main issue: A. How do the principles of stare decisis affect my decision? B. What is “information of misconduct” as contemplated by McNeil ? C.

How does the fact that the Crown is in possession of the record affect my decision? D. What is the purpose and function of PSR s 22 and is it the equivalent of a pardon under any Federal legislation?

E. Is the information of misconduct contained in the Decision of Hearing first- or third-party for disclosure purposes? IV. THE LAW A. The Common Law of Disclosure [13] The Crown has an obligation to disclose all relevant information in its possession relating to the investigation against anaccused.

Relevant information includes any information in respect of which there is a reasonable possibility that it may assist theaccused in making full answer and defence: R v Stinchcombe, (SCC) at pp 343–44. [14] The police have a corollary duty to disclose to the prosecuting Crown all material pertaining to the investigation of anaccused. Unless the information is clearly irrelevant, privileged, or its disclosure is otherwise governed by law, the Crown must discloseall material in its possession.

Stinchcombe at 339; McNeil at paras 18, 52. [15] In O’Connor, the Court established a two-stage procedure for production of non-privileged private documents in thepossession of a third party. First, the accused must satisfy the Court that the documents are “likely relevant” to the proceedings. “Likelyrelevant” means that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of awitness to testify.

It also includes information relating to the credibility of witnesses and the reliability of other evidence in the case:O’Connor at paras 22, 138; McNeil at paras 28, 33. [16] With respect to information of misconduct of a police officer, it may be difficult for the accused to meet the “likely relevant”threshold required to access the relevant records from an investigating police agency. Unless the officer is notorious or defence counselpersonally knows details of an officer’s files, an application by the accused will be nothing more than a fishing expedition.

It is thereforeneither efficient nor justified to leave the question of access to police misconduct records to be determined in the context of theO’Connor regime for third-party production: McNeil at para 56, quoting George Ferguson, Review and Recommendations ConcerningVarious Aspects of Police Misconduct, vol I (Toronto: Chief of Police Toronto Police Service, 2003) (Ferguson Report) at p 12. [17] As a minister of justice, the Crown has a duty to inquire when it is informed of potentially relevant evidence pertaining to thecredibility or reliability of a police witness in a case.

An accused has no right to automatic disclosure of every aspect of a police officer’semployment history, or to police disciplinary matters with no realistic bearing on the case against them. When the disciplinaryinformation is relevant, however, it should form part of the first-party disclosure package, and its discovery should not be left tohappenstance: McNeil at paras 49–50, 53. [18] Information of police misconduct that should be automatically disclosed by police to the Crown may include: (

a) Any conviction or finding of guilt under the Criminal Code or the CDSA [for which a pardon has not been granted]. (

b) Any outstanding charges under the Criminal Code or the CDSA. (

c) Any conviction or finding of guilt under any other federal or provincial statute. (

d) Any finding of guilt for misconduct after a hearing under the [Ontario] Police Services Act or its predecessor Act. (

e) Any current charge of misconduct under the [Ontario] Police Services Act for which a Notice of Hearing has been issued. (Ferguson Five) McNeil at para 57, quoting Ferguson Report at p 17. [19] Records relating to findings of serious misconduct by police officers involved in an investigation against the accused fallwithin the scope of first-party disclosure due to the Crown. Not every finding of police misconduct by an officer involved in aninvestigation will be of relevance to an accused’s case.

Where the misconduct is either related to the investigation or the finding ofmisconduct could reasonably impact on the case against the accused, police must disclose the records. However, if the officer played aperipheral role in the investigation or the misconduct in question has no realistic bearing on the credibility or reliability of the officer’sevidence, it will not be relevant: McNeil at paras 15, 59. [20] Information of misconduct should be disclosed by the police agency to the Crown for its assessment of relevance according tothe edicts of Stinchcombe.

The Crown’s discretion to withhold disclosure is reviewable by the Court, guided by the general principlethat information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right ofthe accused in his or her ability to make full answer and defence: Stinchcombe at p 340; McNeil at paras 53, 58. [21] In this case, the Decision of Hearing relates to a finding of misconduct against Det Ruecker pursuant to the Police Act and thePSR. B.

The Relevant Legislation [22] The Police Act governs police agencies in Alberta and deals with the administration of policing services, the creation andpowers of the Law Enforcement Review Board, and the qualifications and employment of police officers.

Part 5 of the Police Actpertains to complaints and discipline, sets out procedures to be followed when a complaint is made about an officer’s conduct, and refersto contraventions of the regulations governing the discipline or performance of duty of police officers. The regulations are contained inthe PSR, which, for the purposes of

Part 5 of the Police Act, governs the discipline and performance of duty of police officers: PSR s 2.

[23] At issue in this application is PSR s 22, which states: 22 When, and only when, (

a) a period of 5 years has elapsed from the day that punishment is imposed on a police officer for a contravention of

section 5, or (

b) a period of not less than one and not more than 3 years, as specified in writing by the chief of police, in respect of a police officer, orthe commission, in respect of the chief, has elapsed from the day that an action is taken in respect of a police officer under section 19(1), if during that time no other entries concerning a contravention of this Regulation have been made on the police officer’s record ofdiscipline, any record of the punishment, the contravention or the action taken shall (

c) be removed from the police officer’s record of discipline and destroyed, and (

d) not be used or referred to in any future proceedings respecting that police officer. [24] Under the heading “Misconduct of a police officer,” PSR s 5(1) lists activities that constitute contraventions and includes: (

a) breach of confidence; (

b) consumption or use of liquor or drugs in a manner that is prejudicial to duty; (

c) corrupt practice; (

d) deceit; (

e) discreditable conduct; (

f) improper use of firearms; (

g) insubordination; (

h) neglect of duty; (

i) unlawful or unnecessary exercise of authority. [25] Each contravention is subsequently defined in PSR s 5(2)(a)–(i).

For the purposes of disclosure, I consider proven findings ofmisconduct under PSR s 5 to be “findings of serious misconduct” and potentially relevant as contemplated by McNeil (para 15). [26] Police Act s 45(4) allows the Chief of Police to dispose of contraventions under the PSR without conducting a hearing if thecontravention is “not of a serious nature.” Under the heading “Minor contraventions,” PSR s 19(1) outlines action that can be taken whena matter is disposed of under Police Act s 45(4).

For the purposes of disclosure, I do not consider proven findings of misconduct underPSR s 19 to be potentially relevant as contemplated by McNeil (para 59). With respect to the Crown’s argument that the Court in McNeilhad before it the expungement provision in the Police Services Act, RSO 1990, c P-15, s 64(16), I agree with the Chief of Police that thissection deals with expungement of matters that were not of a serious nature akin to those contemplated by PSR s 19. C.

The Common Law of PSR s 22 and Disclosure of Police Misconduct R v Polny [27] R v Polny, (ABKB) was the first decision in Alberta to consider the interplay between McNeil and PSR s22. The accused was tried and convicted before McNeil was released. He had made a pre-trial disclosure application for disciplinaryrecords for several police officer witnesses that had, for the most part, been dismissed.

Neilsen J (as he then was) held that the recordswere not first-party, and such an application should be determined pursuant to the O’Connor regime. [28] After McNeil was released, the accused requested broad disclosure from the Crown in relation to four officers, including theFerguson Five and information relating to complaints that were under investigation or had been dismissed or discontinued. The accusedalso sought a mistrial if the information disclosed could have affected his convictions.

The Crown requested the Ferguson Five fromEPS who advised that there was no new information covered by the Ferguson Five that had not been previously disclosed. The accuseddid not specifically request disclosure of disciplinary records removed from the officer’s record of discipline pursuant to PSR s 22. EPSspecifically declined to disclose the same. [29] In a decision delivered orally, Neilsen J declined to direct the Crown to pursue any further disclosure from EPS.

Neilsen J wasnot satisfied that further disclosure would alter his findings in the matter because any cross-examination of the police officers that mightarise from additional disclosure would not have impacted his findings of fact or credibility. In obiter, Neilsen J briefly considereddisciplinary records that had been “expunged” pursuant to PSR s 22.

Given that the Ferguson Report recommended the disclosure of anyconviction or finding of guilt under the Criminal Code or the CDSA for which a pardon had not been granted, Neilsen J commented thatit would be anomalous that a pardoned criminal conviction would not be disclosed by a police service, but disciplinary records which hadbeen statutorily “expunged” would be disclosed. As such, disciplinary records “expunged” pursuant to PSR s 22 were not subject toautomatic disclosure, however, an accused could bring an O’Connor application for these records: Polny at pp 6–8 and 19–20. R v Letourneau

[ 30 ] In R v Letourneau , 2009 ABPC 22 , the accused sought disclosure of the Ferguson Five in relation to two officers, any information relating to complaints under the Police Act or the Criminal Code , and civil claims against the officers. In dismissing the accused’s application, Allen J assessed whether PSR s 22 is consistent with the principles in McNeil and analogous to a pardon.

Citing Neilsen J’s obiter comments in Polny , Allen J held that a criminal or drug conviction is of greater consequence than a finding of serious misconduct under the Police Act , and if a pardon can be granted for the former, it would only be fair that some relief is granted to an officer for personal misconduct. Allen J recognized that the pardon process was not parallel to the destruction process in PSR s 22, however, the analogy was not so unfair as to be contrary to the principles expressed in McNeil : Letourneau at paras 144–151 .

R v Steele [ 31 ] In R v Steele , 2010 ABQB 39 , the accused sought broad production from the Crown of records for 13 officers, including any records that had been removed from the officer’s record of discipline pursuant to PSR s 22. In line with Polny and Letourneau , I held that any “expunged” records relating to discipline imposed upon any of the 13 officers were not subject to the first-party disclosure process described in McNeil . I relied on the analogy between pardons and statutory “expungement” as considered in Polny and Letourneau .

After considering some differences between the two regimes, I determined that the removal of a record pursuant to PSR s 22 is the equivalent of a pardon and need not be disclosed. Given that pardoned criminal offences need not be disclosed, a significant period of good conduct following a finding of misconduct lessens the relevance of the misconduct for the purposes of disclosure. I left open the possibility that records concerning police disciplinary matters that do not fall within the scope of first-party disclosure may properly be the subject of an O’Connor application: Steele at paras 51–53 and 71–74 .

R v Perreault [ 32 ] In R v Perreault , 2010 ABQB 714 , Thomas J quashed a lower court decision requiring the Crown and the EPS to disclose records which had been removed from an officer’s record of discipline pursuant to PSR s 22. The accused had sought Ferguson Five disclosure and current complaints of misconduct that were under investigation or had been dismissed or discontinued against three police officers. EPS provided a disclosure package but did not include any findings of misconduct that were removed from any officer’s record of discipline and destroyed pursuant to PSR s 22.

The lower court had held that the reference in PSR s 22(

d) to “any future proceedings respecting that police officer” did not preclude the use of the “expunged” records in proceedings relating to other persons, such as an accused. The lower court distinguished pardoned criminal offences and “expunged” disciplinary records because of their different moral implications.

While procedures exist to prohibit disclosure of pardoned offences, PSR s 22 does not expressly relate to disclosure: Perreault at paras 54–55 . [ 33 ] In overturning the lower court’s decision, Thomas J concurred with the reasoning in Polny , Letourneau , and Steele that there is no significant difference between the objectives and operation of the federal criminal offense pardon regime and the procedure found in PSR s 22. Further, the destruction requirement in PSR s 22(

c) implicitly prohibited disclosure such that the records could not be disclosed in proceedings against persons other than the cited officer. Any expunged record is no longer relevant to any accused person who is involved with the police officer and is only producible in accordance with the O’Connor regime: Perreault at paras 117– 119, 126, 140 . Edmonton Police Association v Edmonton (City) [ 34 ] Edmonton Police Association v Edmonton (City) , 2017 ABCA 355 [ EPA ] is the only appellate decision that refers to PSR s 22.

The provision was not directly engaged by the facts of the case, and the Court explicitly declined to determine how the provision was to be interpreted with respect to Stinchcombe , McNeil , and O’Connor . However, the Court found that the Police Act and PSR constitute a police discipline and performance of duty regime. The Court noted that PSR s 2 specifically states that for the purposes of complaints and discipline under

Part 5 of the Police Act , the PSR governs discipline and performance of duty of police officers. While referencing PSR s 22, the Court found that the provision protects against dated entries on the disciplinary record (and expunged after passage of time with no further offences) being used in subsequent disciplinary proceedings: EPA at paras 41–46 . Rysdyk v Slaney et al [ 35 ] In Rysdyk v Slaney et al , 2023 ABCA 305 , affirming 2022 ABQB 538 , the Court upheld a Chambers decision with respect to the protections afforded to an officer through Police Act s 51 and PSR s 10.

The Chambers Justice found that Police Act s 51 is aimed at proceedings against an officer, and the privilege afforded to the subject officer has no potential application in offence proceedings against other accused persons. Similarly, PSR s 10 applies only to hearings under the Police Act and not any civil actions against the subject officer: Rysdyk ABQB at paras 130–138. V. ANALYSIS A. Stare Decisis [ 36 ] The Accused argues that I am not bound by the decisions of Polny , Steele , and Perreault under the principle of horizontal stare decisis .

The Accused submits that those cases are distinguishable from the present case because the Crown is in possession of the Decision of Hearing. In addition, the cases failed to undertake a reasoned statutory

interpretation of PSR s 22 or consider binding authority on a province’s inability to limit the use and admissibility of evidence in a criminal proceeding. As a result, the conclusions rendered were per incuriam . [ 37 ] The Crown argues that the decisions of Polny , Steele , and Perreault are distinguishable because the records at issue in those cases had never been provided to the Crown prior to PSR s 22 being engaged and the applications made amounted to “fishing

expeditions.” [ 38 ] The Chief of Police argues that disciplinary records that are “expunged” pursuant to PSR s 22 fall under the category of disclosure otherwise governed by law, that horizontal stare decisis binds this Court to the decisions in Polny , Steele , and Perreault , and the Crown’s opinion on the relevance of the disciplinary records is an admission of law and not binding.

Similarly, Det Ruecker argues that there is no legally defensible basis on which to decline to follow Polny , Steele , and Perreault , and even if this Court were to decide to engage in a new analysis, the outcome would be the same. [ 39 ] Horizontal stare decisis is not strictly binding in the same way as vertical stare decisis . Decisions of the same court should be followed as a matter of judicial comity and to balance stability and predictability against correctness and the orderly development of the law.

A court can depart from binding decisions issued by a court of coordinate jurisdiction in the following circumstances: A. The rationale of an earlier decision has been undermined by subsequent appellate decisions; B. The earlier decision was reached per incuriam (through carelessness or by inadvertence); C. The earlier decision was not fully considered. R v Sullivan , 2022 SCC 19 at paras 65–66 , 75. [ 40 ] Letourneau is not binding on me because it was a lower court decision. I do not consider myself bound by Polny , Steele , and Perreault .

While I do not find that the decisions were not fully considered or reached per incuriam , they are distinguishable for other reasons.

In addition, the Criminal Records Act , RSC 1985, c C-47 ( CRA ) has been significantly amended since the decisions were released and, importantly, there is binding appellate authority that has clarified the law with respect to the purpose and function of the Police Act and PSR . [ 41 ] In Polny , the Court was dealing with a post-conviction application for disclosure where any records that might have a bearing on the credibility or reliability of the police witnesses would not have been relevant to an issue at trial.

The Court’s comments on the effect of PSR s 22 were made in obiter since the accused’s application was denied due to lack of relevance. Obiter comments are not binding. [ 42 ] In Perreault , the Court decided that the lower court erred in departing from the findings in Polny , Letourneau , and Steele by holding that records “expunged” by the operation of PSR s 22 were different than a pardon for a criminal conviction or finding of guilt. The Court overturned the lower court decision on that basis, and on the fact of the records being “destroyed” pursuant to PSR s 22(c).

The Court had no evidence that the “expunged” records continued to exist once the record was removed and destroyed by operation of PSR s 22, or where and how those records might be stored. However, we now know that these records are not destroyed but rather kept by PSB in an historical/inactive file. This is a significant fact that was unknown to the Court in Perreault . It was also unknown to the Courts in Polny and Steele . All three decisions are distinguishable on that basis. [ 43 ] Further, in all three decisions, the accuseds made broad requests for disclosure.

The request for any records of discipline that had been removed and destroyed pursuant to PSR s 22 was just one of many requests made and the accuseds did not know of the existence of any such records. In this case, the Accused is seeking a particular record that is known to exist.

The issues to be determined in this case with respect to the interplay of PSR s 22 and disclosure are clearly defined, and therefore distinguishable from the issues in Polny , Steele , and Perreault . [ 44 ] In addition, Appellate authority defined the purpose and function of the Police Act and the PSR as dealing with issues of police officer discipline and performance of duty, and that the provisions apply to proceedings carried out under that legislation. Both EPA and Rysdyk were released several years after Polny , Steele , and Perreault .

These Appellate decisions warrant a revisiting of the conclusions drawn in Polny , Steele , and Perreault . Further, the relevant Federal legislation upon which the Courts relied to find that PSR s 22 was the equivalent of a pardon has since been repealed. The amended CRA no longer refers to a “pardon.” B. Information of Misconduct [ 45 ] When endorsing the Ferguson five as first-party disclosure, the Court in McNeil did not suggest that it was an exhaustive list of likely relevant documents that would constitute first-party disclosure. Further, the Court did not direct that any particular records be disclosed.

Rather, what must be disclosed is information of misconduct that is likely relevant as opposed to any specific document. “Likely relevance” for disclosure purposes has a wide and generous connotation and includes information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right and ability to make full answer and defence: McNeil at para 44 . [ 46 ] The record being sought by the Accused is the Decision of Hearing, which is different from Det Ruecker’s record of discipline within EPS to which PSR s 22 applies.

I infer that the Decision of Hearing contains the reasons of the administrative body that held the hearing with respect to the complaint of Det Ruecker’s misconduct. Some of the contents of the Decision of Hearing would clearly meet the definition of “information of misconduct” as contemplated by McNeil . It was reviewed by the Crown and deemed to be a record of serious misconduct that may have a bearing on the Accused’s case. [ 47 ] Information of misconduct can take many forms with the Decision of Hearing being an example of one such form.

The Accused has a constitutional entitlement to full disclosure of any information relevant to the case against him. However, the Accused does not have a constitutional entitlement to a particular form of disclosure. What must be disclosed is information of misconduct contained in the Decision of Hearing that may have an impact on Det Ruecker’s credibility or reliability at trial. However, the relevant information of misconduct can be disclosed to the Accused in other ways.

To ensure that only relevant material is produced and no unwarranted invasion of privacy interests occurs, the Decision of Hearing may be redacted to remove any irrelevant or private material. Restrictions on the dissemination of the information produced for purposes unrelated to the Accused’s ability to make full answer and

defence or prosecution of an appeal may also be imposed. In the alternative, EPS may disclose the relevant information of misconduct inanother form altogether: R v Blencowe, , 118 CCC (3d) 529 at 539; McNeil at para 46. C. Crown is in Possession of the Record [48] The Accused and the Crown contend that PSR s 22 does not bar disclosure by the Crown of the Decision of Hearing.

If theCrown is in possession of information that it knows to be relevant to an accused’s ability to make full answer and defence, it is obligatedto provide that information, barring any legal privilege or prohibition, and regardless of whether PSR s 22 is engaged.

The Accused andthe Crown place particular emphasis on the fact that the Crown is in physical possession of the Decision of Hearing, and that the Crownhas assessed the information in that record to be potentially relevant to the Accused’s case. [49] The Chief of Police argues that the Decision of Hearing is not lawfully in the hands of the prosecuting Crown.

Similarly, DetRuecker argues that the Stinchcombe regime only extends to material relating to the Accused’s case, not material collected by theprosecution service. [50] On the evidentiary record before me and agreements by the parties as to the facts, I cannot determine if the Crown’spossession of the Decision of Hearing is unlawful or whether it was disclosed to the Crown with any undertakings, implied or otherwise.I can infer that EPS knew that the Crown retained possession of the Decision of Hearing and that it would disclose the Decision ofHearing in any future prosecution if it was deemed to have a bearing on that particular prosecution and not “expunged” by application ofPSR s 22.

I can also infer that the Crown was notified of the operation of PSR s 22 to Det Ruecker’s finding of misconduct because theCrown knew of that fact when it notified the Accused that it was in possession of the Decision of Hearing. I cannot infer anything more. [51] The Chief of Police argues that EPS disclosed to the Crown the Decision of Hearing with an implied undertaking by operationof law: any materials provided to the Crown may only be used in the proceedings in which they were provided.

While I take no issuewith that general principle, in this case it would have been impossible for the Crown to give that undertaking. The Decision of Hearingwas only provided by EPS to the Crown on one occasion. EPS had to have known that the Crown would vet and disclose the Decision ofHearing on any future matter where it was deemed to be possibly relevant. [52] The Chief of Police and Det Ruecker further argue that the Crown’s possession and assessment of relevance of the Decisionof Hearing should not be determinative of this application.

They submit that the phrase “in the possession of the prosecuting Crown”should be interpreted narrowly and only refers to information in the prosecution’s file against the Accused. Both parties argue that theCrown’s unilateral determination of relevance cannot bind the Court because relevance is a question of law. [53] While I agree that a concession by the Crown on a point of law does not bind the Court, McNeil is clear that the Crown mustdetermine whether information provided by the police is relevant for the purposes of disclosure.

Once police fulfill their disclosure dutyto the Crown by providing information of any police disciplinary action taken in respect of misconduct, the Crown acts as a gatekeeper indetermining what parts of that information, if any, should be turned over to the defence in compliance with the Crown’s Stinchcombeobligation of disclosure.

That Stinchcombe obligation includes disclosing all information in the Crown’s possession unless it isirrelevant, privileged, or disclosure is otherwise governed by law: McNeil paras 17–18, 54, 58. [54] The Chief of Police argues that disciplinary records that have been “expunged” by operation of PSR s 22 is disclosure that isotherwise governed by law. I disagree. The Police Act and PSR govern police discipline and performance of duty.

Neither legislationdeals with disclosure or the relevance of material in a criminal trial: EPA at para 41. [55] Both the Accused and the Chief of Police argue with respect to the jurisdiction of a provincial statute to legislate with respectto matters under Federal jurisdiction. It is not necessary for me to decide these issues as the constitutionality of the Police Act and thePSR is not before me. D. The Purpose and Effect of PSR s 22 [56] The Chief of Police argues that the PSR should be interpreted broadly so as to apply to proceedings outside of the Police Actand to the Crown as well as the Chief of Police.

The Chief of Police submits that a legitimate goal in ensuring effective policing is torehabilitate officers who have committed misconduct in the past. If the Crown were entitled to disclose its own copies of the “expunged”disciplinary records, it would frustrate that legitimate goal. [57] The Accused and the Crown situate PSR s 22 within the context of the Police Act and the PSR as a whole. The Accused andthe Crown submit that the nature of the statutory scheme supports a finding that the limits on the use of an officer's record of disciplinefound in PSR s 22(

d) do not apply to criminal trials in which the cited officer is an investigating member or witness. Rather, theprinciples of statutory

interpretation support reading the phrase “future proceedings respecting that police officer” as meaning futuredisciplinary or employment related proceedings to which the officer is subject. I agree. [58] The purpose of the Police Act generally is to provide for adequate and effective policing. The Police Act and PSR governofficer discipline and performance of duty. PSR s 2 specifically governs various aspects of discipline and performance of duty of policeofficers as they relate to complaints and discipline under

Part 5 of the Police Act. The legislation is aimed at matters that involve policeofficers as parties, not in proceedings with respect to others. As such, the phrase “future proceedings respecting that police officer” inPSR s 22(

d) should be read to apply to proceedings where the officer is a party, not a witness: Plimmer v Calgary (City) Police Service,2004 ABCA 175 at para 32, affirmed Mitzel v Alberta, 2010 ABCA 336 at para 24; EPA at para 41; Rysdyk at paras 130–138. [59] The Accused and the Crown seek to distinguish the criminal pardon regime, now referred to as a “record suspension” pursuantto the CRA from the PSR s 22 statutory destruction process.

They submit that the PSR process is arbitrary as it mandates the automaticremoval of specific things from the officer’s record of discipline based only on the passage of time and absence of further contraventions.Additionally, the PSR does not explicitly legislate disclosure whereas the CRA controls the use and disclosure of suspended records to

other parties. [ 60 ] The Chief of Police and Det Ruecker argue that prior Alberta jurisprudence has considered the differences between the record suspension and PSR s 22 regimes and correctly concluded that they are functionally equivalent for the purposes of McNeil disclosure. In particular, the Chief of Police asserts that the level of government with jurisdiction over the offence has the jurisdiction to create a pardon system for that offence. Parliament has instituted various types of pardons and expungements for different circumstances and with different effects.

The Chief of Police points to expungement under the Expungement of Historically Unjust Convictions Act , SC 2019, c11 ( EHUCA ) , and

section 748 of the Criminal Code as examples of one level of government possessing the power to bind all levels of government regarding their use and retention of the records in question. [ 61 ] PSR s 22 does not use the term “expunge” with respect to a police officer’s record of discipline, nor does it function to actually expunge everything related to the officer’s record of discipline. The

section mandates only that the punishment, contravention, and action taken with respect to a finding of misconduct be removed from the officer’s record of discipline. [ 62 ] Further, when PSR s 22 is engaged, the PSB does not expunge the records relating to the finding of misconduct despite the language of “removed and destroyed” in PSR s 22(c). Rather, the records are converted to an historical/inactive file within the PSB database.

The evidence is inconclusive as to what use can be made of the records relating to a finding of misconduct once that information is converted to historical/inactive status, though it was submitted that at least one use is for later review where a decision is challenged or called into question by subsequent events such as recantation or discovery of new evidence. [ 63 ] It is clear that PSR s 22(

d) ensures the punishment, contravention, and action taken cannot be used in any future proceeding respecting the subject officer. Fairness requires that some relief be granted with respect to an officer’s personal misconduct and PSR s 22 does grant such relief. It prevents that finding of misconduct from being used against the officer for disciplinary and employment purposes.

However, like a criminal record suspension, the purpose of PSR s 22 is not to insulate the officer from all consequences of their personal misconduct. [ 64 ] I do not accept that PSR s 22 has the effect of nullifying a finding of misconduct akin to free or conditional pardons pursuant to Criminal Code s 748(2) or expunging unjust convictions pursuant to the EHUCA , which was enacted to grant relief for the historically unjust criminalization of same-sex sexual acts. Rather, PSR s 22 is an administrative pardon, similar to a record suspension pursuant to the CRA .

An administrative pardon is not equivalent to a retroactive acquittal and does not logically result in retroactive annulment or neutralization of the conviction: Re Therrien , 2001 SCC 35 at para 122 , quoting Dumont, Hélène. “Le casier judiciaire: criminel un jour, criminel toujours?” in Les Journées Maximilien-Caron 1995, Le respect de la vie privée dans l’entreprise: de l’affirmation à l’exercice d’un droit . Montréal: Université de Montréal, 1996 at para 132. [ 65 ] A record suspension pursuant to the CRA does not have the effect of retroactively wiping out the conviction.

Rather it is an expression of the fact that it still exists, combined with a desire to minimize its future consequences. A record suspension pursuant to the CRA is not absolute and may be revoked if the person is no longer of good conduct. Non-disclosure of a criminal conviction pursuant to a record suspension is also not absolute. Limited information may be disclosed to a police force for the purposes of fingerprint identification at the scene of a crime.

The Minister may disclose the existence of a suspended criminal record if it is desirable in the interests of the administration of justice or for any purpose related to the safety or security of Canada. A person who has obtained a record suspension cannot deny the existence of a criminal conviction.

Were that the case, it would not be necessary to legislate that certain employment applications may not contain a question that by its terms requires the applicant to disclose a conviction in respect of which a record suspension has been ordered: CRA ss 6.2, 6(3), 7–8; Therrien at paras 116, 120 . [ 66 ] Similarly, PSR ss 22(

c) and (

d) do not retroactively eliminate a police officer’s finding of misconduct. Rather, they minimize the effect that the finding of misconduct has on that officer. 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.

Given those restrictions on the effect of PSR s 22, the question becomes whether an accused is entitled to knowledge of the existence of the finding of misconduct once PSR s 22 is engaged. [ 67 ] The application before me does not demand an answer to that question as the Accused knows of the finding of misconduct relating to Det Ruecker. However, it would be anomalous for an accused who is in the fortunate position of having discovered the existence of an “expunged” finding of misconduct to be in a better position than one who has not.

If information of misconduct is relevant, it is relevant regardless of whether an accused is aware of it. As such, it must be disclosed by EPS without prompting. D. Is the Information of Misconduct in the Decision of Hearing first- or third-party? [ 68 ] There is no dispute that information of misconduct in the Decision of Hearing in the Crown’s possession was relevant and material before PSR s 22 was engaged. That information of misconduct does not suddenly become irrelevant because of an automatic administrative action.

The relevance of the misconduct may be lessened after a period of good conduct, but it does not disappear: Steele at para 52 . Further, the information of misconduct exists independently from that which is in the Crown’s possession. The very branch of EPS that is responsible for creating and disclosing McNeil Packages maintains records of the finding of misconduct in its database. [ 69 ] The information of misconduct in the Decision of Hearing is relevant and disclosable by the Crown as first-party information.

Information of police misconduct that may include Decisions of Hearing in the hands of EPS is also disclosable as first-party information regardless of the operation of PSR s 22. The information of misconduct exists in the PSB database and contains information that has possible relevance to the Accused’s ability to make full answer and defence. In order to balance the privacy interests of the subject officer, it is open to EPS to include in the McNeil Package information that certain findings of misconduct have been removed from the subject officer’s record of discipline by operation of PSR s 22.

If EPS chooses to include that fact, the Crown must disclose that fact and it may also be considered by the trier of fact. [ 70 ] The Chief of Police argues that in the 2009 Advice Letter, the Crown made representations that it would not seek disclosure of police officer’s records of discipline that have been removed and destroyed pursuant to PSR s 22, and that EPS relied on those

representations. In the same letter, the Crown also made representations that it had an obligation to notify an Accused if they were holding back third-party records and would advise an accused that “expunged” findings of misconduct can only be obtained through an application pursuant to O’Connor . That is what the Crown did in this case. V. CONCLUSION [ 71 ] The Accused’s application for disclosure of information of misconduct contained in the Decision of Hearing is granted.

If unable to agree, the parties may make submissions on the form in which that information of misconduct should be disclosed and any restrictions on the use of that information. Heard on the 19 th , 20 th of September, 2023. Additional Submissions provided on the 16 th day of October, 2023. Dated at Edmonton, Alberta this 8 th day of December, 2023. Eric F. Macklin J.C.K.B.A. Appearances: Daniel J. Song KC & Tania Shapka for the Applicant/Accused, John McKee Shelley L.

Tkatch KC & Donald MacCannell for the Respondent, His Majesty in Right of the Attorney General of Canada Megan Hankewich for the Intervenor, Chief of Edmonton Police Service Patrick Nugent for the Intervenors, Edmonton Police Association & Detective Jared Ruecker