On June 26, 2026, the Supreme Court of Canada released its judgment in EPS v. McKee, 2026 SCC 24. The CCLA was an intervener in the case. McKee concerned what information about police misconduct by officers involved in a case must be shared with an accused person before their trial. The Crown’s duty to disclose information relevant to an accused’s case is a constitutional obligation under ss. 7 and 11(d) of the Charter.
Consistent with the submissions of the CCLA and other parties, the Court affirmed that the Crown and police must apply a principled relevance-based standard to determine what is disclosable. Relevance is a “low bar” that simply requires information to be of “some use” to the accused’s case. It may be obvious, for example where the misconduct occurred as part of the investigation into the accused. However, it also includes misconduct outside of the immediate case. For example, if an officer has previously falsified their notes or racially profiled people. There is no closed list of records or types of information.
Importantly, the Court emphasized that it is the Crown, and not the police, that decides what misconduct information is disclosed to the accused. The police must always disclose relevant misconduct information to the Crown, which can also request and obtain further details. If the police seek to withhold misconduct information, the Crown too must be informed and makes the ultimate decision.
The Court also soundly rejected the submission of the Edmonton Police Service that an ‘administrative expungement’ of misconduct information under provincial police legislation alters the duty to disclose misconduct information. McKee sets an important standard that to ensure fair trials and prevent wrongful convictions.
The CCLA is grateful to the excellent pro bono representation of Chris Rudnicki and Theresa Donkor of Rudnicki & Company, and the pro bono agent services of Catherine Ouellet of Gowling WLG in this case.
The Supreme Court’s judgment can be read here, and the CCLA’s factum can be read here.
