When Police Records Disappear

Well, the first case on the agenda today is a case that just recently came out from the Supreme Court of Canada.

And it's a case dealing with a criminal charge that originally came out of Alberta.

And there are a few interesting things about it.

First of all, it's a case that deals with the issue of disclosure about police misconduct in disciplinary findings.

Findings.

And the background to that is this.

A long time ago, prior to the charter, the Crown might choose to tell defense about what evidence they had that might show the accused person did or didn't commit the offense, but only as sort of a professional courtesy.

And whether that occurred and in what way that occurred and when it occurred would be wildly variable depending on who was prosecuting the case and how they wanted to do that.

Back in 1991, the Supreme Court of Canada in a case called Stinchcomb made it clear that that's a constitutional obligation, right? If you want to have somebody who's going to have a fair trial, one of the obligations there is that the crown turnover evidence the police have collected that show that the person is likely guilty or likely not guilty of the offense.

Sort of makes sense.

And so things went, but pretty quickly one of the issues that developed was Well, what about evidence that is not things that the police collected in that particular investigation? Like what about, I don't know, records about the mental health of the complainant, for example, right? Police may not even have that.

And in a case that came a few years later called O'Connor, the Supreme Court of Canada set out a different regime dealing with what are referred to as third party records, like evidence was not in possession of the police or Crown, but somebody else, right? And when the defense wants to get those things, they would have to show that the material is likely relevant.

And then if a judge agrees, the judge would be able to review the material and determine whether it should be provided to the defense or not.

So those are the two broad categories of disclosure.

What's called first party disclosure, like the actual evidence the police gathered, and third party, like the medical records or things of that sort that would be held by somebody else, right? Or what else might it be? Let's say a video recording of what happened, but it's held by the store or something, not the police.

The

police didn't get

it for

some reason.

And then a final issue got crystallized back in 2009.

When the Supreme Court of Canada dealt with the issue of what about disciplinary records for police that were involved in the investigation? What if the main investigator had been disciplined for dishonesty or something, right? What is that? Is that a first-party record? Is that like from that Stinchcombe case? Is that like the fingerprints the police collected at the bank? Or is that more like...

oh, some evidence collected in some other case or something that some other party might have.

And the Supreme Court of Canada in that case, McNeil, found that, broadly speaking, that sort of material, like records the police have about officers that were disciplined, who were integral to the case, witnesses, that that material is dealt with in a way closer to the first party records, like the evidence collected in the actual investigations.

And so Crown then would have an obligation, the Supreme Court of Canada made clear, to disclose information about police disciplinary records that could have relevance to the reliability or trustworthiness of a police officer, for example.

Well, what's happened since then is some jurisdictions, including in this case Alberta, passed provincial legislation and regulations that provided that after a period of time, even if a police officer had been disciplined, for example, for something relating to dishonesty, that those records would be sealed and destroyed and the officer could not be asked about them after a certain time period.