Edmonton police must hand over officer's 'expunged' disciplinary file, court rules
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Alberta police services must hand over information regarding “expunged” disciplinary files to prosecutors trying criminal defendants, a judge has ruled in a decision that partially upends the practice of periodically removing discipline from officers’ service records.
Court of King’s Bench Justice Eric Macklin sided earlier this month with John McKee, a man charged with drug and weapons offences, in his bid to obtain disciplinary information related to an Edmonton Police Service detective who investigated him.
During evidence disclosure, federal prosecutors informed McKee’s lawyers that a record related to a Police Act disciplinary proceeding for Det. Jared Ruecker, disclosed during a 2015 prosecution involving a different defendant, was in their possession. Ruecker and Police Chief Dale McFee opposed disclosing details about the misconduct finding to McKee, arguing it had been “removed from Det. Ruecker’s record of discipline and destroyed,” as permitted under Section 22 of Alberta’s Police Service Regulation.
That section states police services shall remove “any record” of disciplinary action against an officer, including any punishment, after five years. The section allows police chiefs to remove discipline from records earlier, and makes exceptions if the officer breaches the regulation again during the five-year window.
Macklin said defendants should have access to relevant disciplinary records regardless of whether they’ve been “expunged.”
“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,” he wrote. “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.”
Daniel Song, one of McKee’s lawyers, said the decision will require Alberta police services to hand over information about expunged disciplinary records to the Crown, which will then determine if that information could be relevant to the defence before handing them over to the accused. The expungement rule will remain in place for internal employment matters like promotions or discipline, he said.
Prosecutors are required to disclose relevant information to an accused if there is a “reasonable possibility” it could help them make “full answer and defence” to the charges against them. While the Crown and the police are separate, police also have a duty to participate in the disclosure process. They are required to provide a “McNeil package” — named after an Ontario case in which an officer who testified against a drug defendant was himself facing drug-related misconduct and criminal charges — to the Crown, containing information relating to a witness officers’ credibility and reliability.
During a hearing on McKee’s application, lawyers for the police chief argued that expunging disciplinary records helps ensure effective policing by helping “rehabilitate” officers who have committed misconduct. They argued the second should be interpreted broadly, including to proceedings outside the Police Act.
Macklin disagreed.
“A person who has obtained a record suspension cannot deny the existence of a criminal conviction,” he said. “Similarly (Section 22 does) not retroactively eliminate a police officer’s finding of misconduct.
“Rather, (it minimizes) the effect that the finding of misconduct has on that officer,” he added. “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.”
A spokesperson for EPS said the service is seeking leave to appeal the ruling. Edmonton Police Association president Curtis Hoople said the union is also considering its options.
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