The Defence Toolkit – July 4, 2026: Police Discipline Disclosure

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Admissions | Disclosure | Police Officers | Possession

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Posted On 4 July 2026

This week’s top three summaries: Edmonton (PS) v McKee, 2026 SCC 24: #discipline disclosure, R v Brennan, 2026 ONCA 459: circumstantial #possession, R v Sandhu, 2026 BCCA 268: #admissions and circular reasoning

Edmonton (Police Service) v McKee, 2026 SCC 24

[June 26, 2026] Disclosure and Relevance of Expunged Police Discipline Records [Reasons by Martin J. with Wagner C.J., Karakatsanis, Côté, Rowe, Kasirer and Jamal JJ. concurring]

AUTHOR’S NOTE: This Supreme Court decision contains several important holdings for the criminal defence bar concerning the disclosure of police disciplinary records.

First, the Court makes clear that the administrative expungement of police discipline records does not diminish the Crown’s disclosure obligations in criminal proceedings. Expungement serves an internal employment and administrative function only. It cannot be relied upon to justify the destruction or non-disclosure of information that may be relevant to an accused’s right to make full answer and defence. In particular, the Court confirmed that Alberta’s Police Service Regulation does not authorize the destruction of disciplinary records for the purpose of avoiding disclosure obligations in criminal cases.

Second, the Court provides a practical roadmap for disclosure applications by identifying, at paragraph 94, the various ways in which police disciplinary records may be relevant in a criminal prosecution. Rather than speaking in broad generalities, the Court catalogues specific categories of misconduct and explains how they may bear upon issues such as credibility, reliability, investigative integrity, compliance with legal duties, or other matters arising at trial. Given the differing approaches previously taken by lower courts, paragraph 94 provides particularly valuable guidance when disclosure, production, or use of police disciplinary records is resisted.

Finally, the Court confirms that the Crown’s disclosure obligations extend, at a minimum, to core information concerning police misconduct proceedings, including the date of any conviction, finding of guilt, finding of misconduct, or outstanding charge, together with the nature of the allegation or offence and the resulting disposition or sanction. Police services are not entitled to withhold that information from the Crown on the basis of internal record-management practices. Once received, it is the Crown’s responsibility to assess disclosure in accordance with the principles articulated by the Court.

For defence counsel, the decision is significant because it resolves a number of recurring disclosure disputes. It confirms that administrative record-retention policies cannot override constitutional disclosure obligations and provides a clear analytical framework for establishing the potential relevance of police disciplinary records in criminal proceedings.

[1] Every person charged with a criminal offence in Canada is constitutionally entitled to a fair trial and to make full answer and defence. Under the Canadian Charter of Rights and Freedoms and at common law, that guarantee is given practical effect through disclosure: the Crown must provide the defence with all relevant, nonprivileged information in its possession or control. This includes information that could assist the accused to meet the Crown’s case, advance a defence, or otherwise make decisions which could affect the conduct of the defence. This appeal concerns how and when an accused may obtain the disclosure of information of police misconduct when certain entries have been administratively expunged from the officer’s record of discipline.

[2] The respondent, John McKee, sought disclosure of the disciplinary records of any officer involved in the 2022 case against him. There had been a 2015 Decision of Hearing (“Decision”) which involved a finding of misconduct against the lead investigating detective. The Edmonton Police Service (“EPS”) informed the Crown, and the Crown informed the defence, that there was no disciplinary record for this individual. The entry had been removed from the detective’s record of discipline by operation of s. 22 of the Police Service Regulation, Alta. Reg. 356/1990 (“PSR”), a regulation under the Police Act, R.S.A. 2000, c. P-17, which administratively expunges dated findings of misconduct from a police officer’s record of discipline.

[3] The EPS had provided the Crown with a copy of the Decision in an unrelated prosecution, a fact unknown to the individual Crown assigned to Mr. McKee’s case. The defence later learned, by happenstance, that the Crown had a disciplinary record concerning the detective and requested its disclosure. The assigned Crown retrieved the Decision from the unrelated prosecution file, reviewed it, and concluded the misconduct was serious, had a realistic bearing on the detective’s credibility, and must be disclosed on any matter where his involvement was more than peripheral. The EPS disagreed and resisted disclosure of the expunged record.

[6] The appellant Chief of the Edmonton Police Service (“Chief of Police”) argues that a different disclosure regime applies where misconduct information has been administratively expunged under s. 22 of the PSR (“PSR s. 22”), which requires that such entries be “removed” and “destroyed” and “not be used or referred to in any future proceedings respecting that police officer”. On this view, the expunged record is not relevant in a subsequent criminal proceeding and cannot be disclosed as first party material. Instead, the accused must apply to a court and seek expunged disciplinary entries through the third party production process.

[7] With respect, I reject that interpretation of PSR s. 22 and its retreat from the settled law in McNeil. Properly interpreted, this provision provides only that the administratively expunged entry cannot be used against the officer in subsequent disciplinary-related proceedings. That administrative step does not alter, let alone dictate, the constitutional dimensions of disclosure for criminal law purposes, nor does it change the nature, content and relevance of the information in a criminal proceeding. McNeil continues to apply to all police misconduct records, including those that have been administratively expunged from a police officer’s record of discipline.

[9] Police must provide not only misconduct materials that are related to the investigative file but also any information outside the file that is “obviously relevant” — that is, the information relates to the accused’s ability to meet the Crown’s case, advance a defence, or inform defence conduct. Relevance is a low, utility-based threshold. Accordingly, police will generally provide records relating to findings of misconduct to the Crown; withholding such information from the Crown on the basis that it is not relevant is likely to be exceptional. If police withhold information, they must advise the Crown what was withheld and why it was withheld. To satisfy its Stinchcombe obligations, the Crown may require particulars from the police, which must be provided, to ensure the Crown is well placed to conduct an independent review of the relevance of the misconduct materials for disclosure purposes. Thus, as between the police and the Crown, the Crown makes the ultimate determination about what relevant information should be given to the defence. The Crown will then provide disclosable information to the defence in the normal course and the defence retains its general ability to question its sufficiency, including by seeking a review of the Crown’s decision (“Stinchcombe review”) or by taking an O’Connor application[Emphasis by PJM].

[10] ….Jared Ruecker (“Detective”) was employed as a detective with the EPS and headed up the investigations that gave rise to the charges against Mr. McKee.In 2014, he faced allegations of misconduct. A finding of misconduct on that matter was subsequently made against him in a “Decision of Hearing” released in July 2015. The EPS provided the Decision to the Crown that same month, in relation to a prosecution involving a different accused. Crown counsel redacted the document and disclosed it to the defence. That Decision stayed in the Crown’s possession and remained on its file for that particular prosecution.

[11] Sometime prior to January 6, 2022, the finding of misconduct in the Decision was “removed” from the Detective’s record of discipline and “destroyed”, by operation of PSR s. 22.

[12] In November 2021, the Detective became the lead investigator on Project Emission — an investigation into organized crime and drug trafficking in Edmonton. In May 2022, Mr. McKee was charged with several drug, weapons and possessionrelated offences arising from that investigation. The defence requested disclosure from the Crown and expressly asked for any McNeil records, meaning any disciplinary records of police officers involved in the case against him.

[13] On June 9, 2022, the EPS provided the Crown with a McNeil package for use in the prosecution of Mr. McKee. In respect of the Detective, the EPS indicated that it had no relevant disciplinary records in its possession, stating: “McNeil Package: None (current as at Jan 6, 2022 and June 9, 2022)” (2023 ABKB 698, at para. 8). The Crown provided the initial disclosure package, along with the EPS McNeil package, to the defence.

[14] On July 11, 2023, Mr. McKee’s counsel learned, by chance, that the Crown possessed the disciplinary records for the Decision and asked for them. Two days later, the Crown confirmed:

1. The Crown possessed disciplinary records regarding the Detective;

2. Professional Standards Branch of the EPS had advised the Crown that the records had been “expunged” by operation of the Police Act;

3. The misconduct itself may be potentially relevant and subject to disclosure;

4. Upon review, the Crown took the position that the details of the misconduct were serious and had a realistic bearing on the Detective’s credibility and therefore must be disclosed on any matter in which the Detective had more than peripheral involvement;

5. The EPS opposed disclosure of the “expunged” records; and

6. The Crown would consent to an application for disclosure if one was brought by the respondent.

[15] Mr. McKee filed an application for disclosure in the Court of King’s Bench of Alberta against the Crown, seeking an order treating the Decision as first party information to be disclosed under Stinchcombe on the basis that administrative expungement under PSR s. 22 does not preclude its disclosure in a criminal matter.

[18] The application judge held that PSR s. 22 does not govern disclosure in criminal proceedings and granted Mr. McKee’s application for disclosure of the Decision (2023 ABKB 698). He reasoned that the purpose of the Police Act and PSR was to provide for adequate and effective policing. The phrase in PSR s. 22 barring use of expunged information “in any future proceedings respecting that police officer” only prevents a finding of misconduct from being used against the officer for disciplinary purposes….

[20] ….The Chief of Police sought leave to appeal that interlocutory decision to this Court pursuant to s. 40 of the Supreme Court Act,, R.S.C. 1985, c. S-26.

V. Analysis

A. Which Disclosure Framework Governs Administratively Expunged Police Misconduct Records?

(2) An Overview of the Disclosure Framework

(a) First Party Disclosure: The Stinchcombe Framework

[29] Stinchcombe signalled a paradigm shift in defence disclosure by “transforming a professional courtesy into a formal obligation” (O’Connor, at para. 171). The accused’s constitutional right to disclosure compels the Crown to provide all relevant material in its possession, whether or not the Crown intends to adduce it at trial. The obligation extends to both inculpatory and exculpatory evidence (Stinchcombe, at pp. 343-44).

[30] The scope of the Crown’s duty to disclose is guided by relevance which “must be assessed in relation both to the charge itself and to the reasonably possible defences” (R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 59). The concept of relevance has been defined broadly in R. v. Egger, [1993] 2 S.C.R. 451, at p. 467:

One measure of the relevance of information in the Crown’s hands is its usefulness to the defence: if it is of some use, it is relevant and should be disclosed — Stinchcombe, supra, at p. 345. This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.

[31] The threshold defined by the courts of being “of some use” to the defence favours the disclosure of evidence. The duty on the Crown to disclose what is relevant leaves little room to withhold information because “the threshold requirement for disclosure is set quite low” (Dixon, at para. 21). The Crown’s discretion to withhold applies only to that which is “clearly” or “plainly” irrelevant (Taillefer, at paras. 59- 60). Relevant information in the first party production context includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence (Stinchcombe, at pp. 343-44). Where such a reasonable possibility exists, the Crown must disclose it (Dixon, at para. 21).

(b) Third Party Disclosure: The O’Connor Framework

[39] Under O’Connor, the process involves two stages: (1) an initial showing of “likely relevance”, followed by (2) judicial inspection and a second-stage balancing of competing interests (McNeil, at paras. 26-27 and 33-35).

[40] At the first stage, the applicant must show that the targeted records are “likely relevant”. If this threshold is met, the court may order production for inspection (McNeil, at paras. 7 and 28)….

[41] In the third party production context, “likely relevant” is a “significant burden” that demands more than the meaning of relevance used in the first party disclosure context; it asks whether there is “a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify” (O’Connor, at paras. 22 and 24 (emphasis deleted)). At the same time, while the threshold is significant, it is not onerous. Accused persons should not be forced to provide a detailed roadmap of how they will deploy records they have not yet seen — sometimes referred to as a “Catch-22” problem (McNeil, at paras. 29 and 33; O’Connor, at para. 25, citing R. v. Durette, [1994] 1 S.C.R. 469, at p. 499). By contrast, in the first party disclosure context, relevance is framed by whether material may be useful to the defence; a broader, utility-oriented conception reflected in the Court’s disclosure jurisprudence (Egger, at p. 467; R. v. Chaplin, [1995] 1 S.C.R. 727, at para. 22).

[43] This second stage “essentially requires a court to conduct a balancing of the third party’s privacy interest in the targeted documents, if any, and the accused’s interest in making full answer and defence” (McNeil, at para. 7; O’Connor, at paras. 134-37).

[45] Two propositions flow from the prioritization of relevance. First, if upon inspection the information proves to be “clearly irrelevant”, then “the application can be summarily dismissed” (McNeil, at para. 40 (emphasis deleted)). Second, if the information proves relevant and no competing reasonable expectation of privacy is shown, “there is no balancing of interests left to perform” and production follows (para.37).

[46] Where competing interests do exist, McNeil underscores that the primacy of full answer and defence will, in most cases, carry the day once “likely relevance” is established:

. . . if the claim of likely relevance is borne out upon inspection, the accused’s right to make full answer and defence will, with few exceptions, tip the balance in favour of allowing the application for production. . . . [A]bsent an overriding statutory regime governing the production of the record in question, a third party privacy interest is unlikely to defeat an application for production. [Emphasis deleted; para. 41.]

[47] Put simply, once “likely relevance” is demonstrated, the second stage balancing becomes “easily performed”, and the practical differences between O’Connor and first party Stinchcombe disclosure largely disappear (McNeil, at para. 42)….

[48] In practical terms, under O’Connor, the court should proceed through a relevance-first lens: where inspection confirms “likely relevance” and “true relevance”, disclosure will ordinarily be ordered, tailored by appropriate redactions and conditions to respect any residual privacy interests without diluting the accused’s fair trial rights (McNeil, at para. 46). This approach keeps the proceeding anchored on the main event: the trial of the accused.

(c) Disclosure of Police Disciplinary Records: The McNeil Framework

[50] ….As explained in McNeil, the information in an officer’s file about misconduct, even misconduct disclosed in a different case, may assist the accused in making full answer and defence, notably to challenge the testimonial credibility or reliability of the particular officer.

[52] McNeil reinforced that the constitutional foundation of disclosure governs not only what the Crown must disclose, but also how the state must organize itself to ensure disclosure occurs. The Court bridged the gap between first party disclosure and third party production by formalizing: (a) the Crown’s duty to inquire once put on notice of potentially relevant material (McNeil, at paras. 48-51); and (b) the police’s corollary duty to disclose all material pertaining to the investigation and to proactively alert the Crown to relevant misconduct (paras. 23-24 and 52-60). The Court confirmed that records of serious police misconduct by officers involved in the investigation form part of the police‑to‑Crown first party disclosure package where the misconduct is related to the investigation or could reasonably impact the case against the accused (paras. 15 and 22-23). Only materials that do not fall within the scope of this first party disclosure package remain subject to the O’Connor third party regime (McNeil, at paras. 15 and 25-27).

[54] Although records held by third parties, including other Crown entities (federal and provincial), generally fall outside of the Stinchcombe regime (McNeil, at para. 25; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 11), Charron J. agreed that it is “neither efficient nor justified” to leave the entire question of access to misconduct records to be determined under the O’Connor regime (McNeil, at para. 59, citing G. Ferguson, Review and Recommendations Concerning Various Aspects of Police Misconduct (2003), vol. I (“Ferguson Report”), at p. 15). Instead, “the disclosure of relevant material, whether it be for or against an accused, is part of the police corollary duty to participate in the disclosure process. Where the information is obviously relevant to the accused’s case, it should form part of the first party disclosure package to the Crown without prompting” (McNeil, at para. 59 (emphasis in original)). At the same time, McNeil cautioned that the accused has no entitlement to automatic disclosure of every aspect of an officer’s record and that relevance remains the governing standard.

[55] In considering what broad types of police misconduct may be relevant to the accused’s constitutional right to make full answer and defence, Charron J. held that disciplinary action taken in relation to misconduct concerning the same incident that forms the subject-matter of the charge against the accused must be disclosed as a matter of course (McNeil, at para. 54). Findings of misconduct by a police witness that are not directly related to the investigation against the accused may still be relevant to the accused’s case, in which case it should also be disclosed (ibid.).

[56] ….Ferguson Report made a number of recommendations,….

….These recommendations, known as the “Ferguson Five”, provide that the following types of information are relevant and ought to be disclosed:

a. Any conviction or finding of guil[t] under the Canadian Criminal Code or under the Controlled Drugs and Substances Act for which a pardon has not been granted.

b. Any outstanding charges under the Canadian Criminal Code or the Controlled Drugs and Substances Act.

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 Police Services Act or its predecessor Act.

e. Any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued. [p. 17]

[57] The Court made clear that the “Ferguson Five” provides “useful guidance” on the “types of matters” that would trigger further assessment for “obviou[s] relevan[ce]” by the police, but it was not a complete code (McNeil, at para. 59). As will be explained below, this list is not to be treated as an exhaustive catalogue, and subsequent legislative changes illustrate why it cannot be set in amber.

(d) Summary

[58] After McNeil, two questions orient the disclosure of police disciplinary records: who possesses the record, and is the record “obviously relevant”. If the record is in the prosecuting Crown’s possession — or is the kind of “obviously relevant” material police must transmit — Stinchcombe governs and its low threshold of relevance applies. Only material outside that first party sphere is governed by the O’Connor regime.

[59] Having regard to this governing framework, this appeal requires this Court to examine the status of administratively expunged police discipline records and how expungements under PSR s. 22 are treated within this constitutional framework.

[60] ….the Chief of Police submits that administratively expunged misconduct files under PSR s. 22 are not relevant in criminal proceedings and, under McNeil, are not subject to Stinchcombe disclosure. With respect, I do not accept the Chief of Police’s argument.

[61] The Chief of Police’s argument rests on a misinterpretation of PSR s. 22. He overstates what it says, overshoots its intended scope and mischaracterizes its role. When read according to the modern rule of statutory interpretation, PSR s. 22 does nothing more than set out the disciplinary-related consequences of older findings of police misconduct. It does not dictate or alter the role such records may play in a criminal trial. He overstates what it says, overshoots its intended scope and mischaracterizes its role. When read according to the modern rule of statutory interpretation, PSR s. 22 does nothing more than set out the disciplinary-related consequences of older findings of police misconduct. It does not dictate or alter the role such records may play in a criminal trial.

[62] Further, because records removed under PSR s. 22 are administratively expunged for disciplinary purposes only, McNeil continues to govern disclosure. There is no basis for treating an administratively expunged record as automatically and categorically irrelevant, or for shifting it wholesale into the third party O’Connor process….[Emphasis by PJM]

64] PSR s. 22 is no longer in force; however, a substantially similar provision continues under the Police Conduct and Oversight Regulation, Alta. Reg. 263/2025.

Records of discipline

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, or the 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 of discipline, 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.

[69] ….First, the restriction on the use of those records in future proceedings suggests that they cannot be destroyed permanently and irreversibly. If s. 22(c) did authorize the permanent and irreversible destruction of police disciplinary records, the restriction on use would be superfluous. After all, something cannot be “used” in a proceeding if it does not exist in some form or another. Second, the text of s. 22(d) specifies the limits on any future use of the records to which s. 22 applies: it cannot be used or referred to in “any future proceedings respecting that police officer”. This language does not purport to preclude the use of police disciplinary records in future proceedings generally.

[70] Section 2 of the PSR confines the regulation to matters of “discipline and performance of duty of police officers” for the purposes of Part 5 of the Police Act, which governs, among other things, complaints and discipline in respect of the conduct of a police officer. Interpreted within the context of its authorizing statute, this supports limiting PSR s. 22 to disciplinary-related proceedings.

[75] The affidavit evidence established that the EPS retains a mirrored copy of professional misconduct files despite their purported “removal” and “destruction” (application judge’s reasons, at para. 11). Therefore, in practice, PSR s. 22 does not result in permanent destruction of police disciplinary records….

[76] ….It follows that even if a disciplinary decision has been “removed” and “destroyed” under PSR s. 22, that administrative step neither retroactively eliminates the finding nor permits the officer to deny it, and it does not immunize the officer from being asked on the stand whether there was a finding of misconduct.

[77] I agree with the learned application judge that the Alberta authorities reaching the opposite result are either readily distinguishable on their facts, were not binding because it was a lower court decision (e.g., R. v. Letourneau, 2009 ABPC 222, 11 Alta. L.R. (5th) 348), or have been eclipsed by subsequent jurisprudence and legislative developments. Those cases largely proceeded on assumptions now shown to be inaccurate (notably, that “expunged” records were destroyed), whereas the evidentiary record here establishes that the EPS’s Professional Standards Branch retains those materials in historical or inactive files (see R. v. Perreault, 2010 ABQB 714, 36 Alta. L.R. (5th) 110)….

[78] In sum, I conclude that PSR s. 22 applies only to disciplinary-related proceedings in respect of police officers and does not govern criminal disclosure obligations. Accordingly, PSR s. 22 does not authorize police disciplinary records to be “removed” and “destroyed” permanently and irreversibly. Interpreting “destroyed” as permanent erasure for all purposes would impermissibly allow the regulation to defeat constitutional disclosure principles. If a record is permanently destroyed and becomes unavailable for disclosure in a criminal proceeding, the accused may seek recourse through a lost or destroyed evidence application, including the remedial framework in Carosella.

(b) Expunged Administrative Records Fall Within the McNeil Framework

[79] There is no principled basis to exempt administratively expunged police disciplinary findings from the McNeil principles. McNeil ties the content of first party disclosure to the concept of relevance, without regard to the record’s administrative status in a record of discipline. Police must furnish to the Crown misconduct information that is “obviously relevant”, and the Crown must then assess relevance, privilege, timing, and privacy safeguards. Nothing in McNeil limits that duty based on the disciplinary status of the underlying material. A regulatory removal or “expungement” provision aimed at internal police discipline cannot displace the constitutional foundation of disclosure or convert first party disclosure into third party production.[Emphasis by PJM]

[80] Indeed, the nature and potential relevance of the “expunged” document is unchanged: it is still a disciplinary finding that may bear on credibility, reliability, investigative integrity, or other live trial issues. Administrative expungement alters the record’s disciplinary status, not its character as a misconduct finding capable of assisting the defence. What may change, however, is its currency. Currency may affect relevance — older findings may, in a given case, carry less probative force — but it does not impose or provide the rationale for the categorical exclusion of information from first party disclosure. The age of the record may be considered during the Crown’s relevance assessment.

[81] The governing question remains whether the information is “obviously relevant”, in that it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise shape defence strategy (R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35, at para. 23). If it is, police must transmit it and the Crown must review and disclose it using proportionate privacy accommodations where necessary. If it is not, it falls within third party production under O’Connor.[Emphasis by PJM]

[84] The administrative removal of a record of police misconduct under the PSR therefore does not alter the legal regime under which its disclosure is determined in criminal proceedings. McNeil continues to apply to all police misconduct records, even administratively expunged ones. If: (1) the information sought is in the possession or control of the prosecuting Crown; or (2) the nature of the information sought is relevant such that the police (or another Crown entity in possession or control) ought to have provided the information to the prosecuting Crown, the governing framework is Stinchcombe rather than O’Connor (Gubbins, at para. 33).

B. What Qualifies as Relevant Information of Police Misconduct?

[85] To set out the clear, functional account of what makes police misconduct information relevant for first party disclosure requested by the Chief of Police, I begin by restating the governing standard — relevance as a low, utility‑based threshold. I clarify that “obvious relevance” is not a higher test but is another way of formulating the Stinchcombe standard of relevance and a descriptor for material outside the investigative file that would still meet the disclosure standard. I then explain the two principal routes to “obvious relevance”: (1) misconduct tied to the investigation at bar, which is per se “obviously relevant”; and (2) other misconduct by an officer involved in the case that could reasonably bear on the case against the accused in that it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence. I define the respective roles of police and Crown within this framework, address how guidance like the “Ferguson Five” assists (but does not limit) triage, why “serious misconduct” operates as a proxy for relevance rather than a rigid category, and how residual privacy interests are accommodated downstream by proportionate safeguards.

(1) General Principles of Relevance

[86] ….In its simplest terms, evidence is relevant if, as a matter of logic and human experience, it tends to make a fact more or less probable than it would be absent the evidence (R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47).

[87] Relevance is about building a bridge from a piece of information to a legitimate inference. Evidence need not be conclusive, nor independently sufficient to be relevant to the proposition for which it is tendered. It is enough that the evidence has some probative tendency — however slight — to advance the inference sought to be established….

….For example, a piece of evidence that undermines a witness’ credibility will be relevant to an issue — even if it is unrelated to the issue itself — when it helps the court understand whether the witness’ account should be accepted.

[88] The threshold for relevance is modest. If something might help even a little in figuring out the truth, it is usually relevant.

(2) The Definition of “Relevance”

[89] In McNeil, when describing the police duty to include information as part of the “‘first party’ disclosure package due to the Crown”, the Court held that the police must include all information that is “obviously relevant” to the accused’s case (paras. 15 and 59). This wording may suggest that “obvious relevance” is a separate and more exacting standard than the relevance standard described above.

[90] However, in Gubbins, this Court clarified that the phrase “obviously relevant” does not introduce a new standard or different degree of relevance. Instead, “this phrase simply describes information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence” (para. 23). Put differently, “obvious relevance” is simply another way of stating the Stinchcombe standard of relevance used by the Crown — that all material must be provided unless clearly irrelevant, privileged or its disclosure is otherwise governed by law (Stinchcombe, at p. 339; McNeil, at para. 18). For clarity’s sake, I will avoid the term in the remainder of these reasons. Relevance as defined in Stinchcombe governs, and there is no further requirement of obviousness.[Emphasis by PJM]

(3) Determining Relevance

[91] The Court in McNeil understood that a main issue was “identifying the contours of relevance for the purposes of the police’s first party disclosure obligation” (para. 53). Simply stated:

Obviously, the accused has no right to automatic disclosure of every aspect of a police officer’s employment history, or to police disciplinary matters with no realistic bearing on the case against him or her. However, where the disciplinary information is relevant, it should form part of the first party disclosure package, and its discovery should not be left to happenstance. [para. 53]

[93] Findings of misconduct can meet the relevance threshold in two principal ways. First, any police misconduct related to the investigation, or the “fruits of the investigation”, is per se relevant and must be included by the police in the first party disclosure package due to the Crown.[Emphasis by PJM]

[94] Second, misconduct that is not investigation‑specific but arises in other circumstances could also reasonably bear on the case against the accused. Relevance covers any information that is of some use to the defence — a contextual, factual and functional inquiry that will depend upon what issues arise in the particular case. The following examples, drawn from the PSR, illustrate potential links between types of misconduct and various issues; they are illustrative, not exhaustive. Misconduct under any federal or provincial enactment may be relevant and must be assessed accordingly. Using the PSR solely as an illustration, misconduct records that fall within this second category may be relevant to the officer’s:

(a) testimonial credibility and veracity. This is almost always a live issue for any witness in a criminal trial. Relevant information includes honesty-based misconduct, broadly conceived. For example, a conviction for perjury has obvious implications for honesty. But so too does breach of confidence (e.g., giving notice to any person against whom a warrant has been issued (s. 5(2)(a)(ii))), corrupt practice (e.g., failing to account for money that the police officer received in his capacity as a police officer (s. 5(2)(c)(i))), or deceit (e.g., destroying official documents without a lawful excuse (s. 5(2)(d)(iii)(A)));

(b) evidentiary reliability. For example, consumption of liquor or drugs in a manner that is prejudicial to duty (e.g., reporting unfit for duty (s. 5(2)(b)(iii)));

(c) investigative integrity and good faith. For example, neglect of duty (e.g., failing to work in accordance with orders or leaving an area without due permission or sufficient cause (s. 5(2)(h)(ii)) or permitting a prisoner to escape on account of the police officer being careless or negligent (s. 5(2)(h)(iii))); deceit (e.g., non‑preservation or destruction of material evidence or official documents (s. 5(2)(d)));

(d) bias, partiality, or motive to fabricate. For example, discreditable conduct (e.g., using profane, abusive or insulting language to any member of a police service or to any member of the general public (s. 5(2)(e)(iii)) or differential application of the law based on protected characteristics (s. 5(2)(e)(vii))). Patterns of slurs or hostile communications may support a claim of bias, a Charter claim or a focused credibility challenge, even if the index event is not itself perjury;

(e) interview practices. For example, oppressive, profane, abusive or insulting conduct or language may inform questioning tactics bearing on the admissibility and weight of statements (s. 5(2)(e)(ii) and (iii)); and

(f) Charter compliance more broadly. For example, unlawful or unnecessary exercise of authority (e.g., applying inappropriate force in circumstances in which force is used (s. 5(2)(i)(ii))) may illuminate personal or systemic issues.[Emphasis by PJM]

[95] Clearly, what is relevant in any given case is a contextual and functional inquiry, which asks whether the misconduct could reasonably assist the accused in meeting the Crown’s case, advancing a defence, or making tactical decisions. While the age of the record, remoteness, and the officer’s role may affect the weight the eventual fact finder may give to the evidence, the inquiry about relevance involves different principles and a much lower threshold.

(4) The Definition of “Serious Misconduct”

[96] The police are to transmit findings of “serious misconduct” as part of the “disclosure package due to the Crown” (McNeil, at para. 15):

[100] In my view, a categorical approach to seriousness focused on its abstract severity may provide some useful information but is not an adequate inquiry when the issue is what police files ought to be provided to the Crown or disclosed to the defence. It is the second meaning of seriousness, as relating to a matter of importance, that is most germane to disclosure. It captures and tracks the centrality of relevance to disclosure as it is also a relational exercise which ties seriousness to the intended use to be made of the information. It assesses what is “serious misconduct” by reference to its significance to fair‑trial interests: it will be serious if the conduct could reasonably assist the accused in meeting the Crown’s case, raising a defence, or otherwise organizing the conduct of the defence. Read this way, “serious” focuses on the importance of the misconduct to the defence.

[101] Thus, “serious misconduct” is not amenable to a strictly categorical approach, but is instead also to be assessed contextually and functionally on a case-bycase basis. When the governing touchstone is whether the information is relevant, the question is not which infractions under a disciplinary regulation are, in the abstract, “serious” or “not serious”, although this may assist in assessing whether they are relevant to an issue in the case….

[102] However, in the disclosure context, “serious misconduct” is not a qualitative assessment separate and apart from an assessment of relevance. Instead, the term “serious misconduct” was used as a proxy for conduct that is relevant for Stinchcombe purposes….

(5) Disclosure Requires More Than Criminal Charge Information and Goes Beyond the Ferguson Five

[105] The Ferguson Report recommended automatic disclosure by the police, upon request by the Crown, of specified categories of information for officers who may be a witness or otherwise involved in a case before the court (p. 17). For ease of reference, I repeat the “Ferguson Five”:

a. Any conviction or finding of guil[t] under the Canadian Criminal Code or under the Controlled Drugs and Substances Act for which a pardon has not been granted.

b. Any outstanding charges under the Canadian Criminal Code or the Controlled Drugs and Substances Act.

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 Police Services Act or its predecessor Act.

e. Any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued. [p. 17]

[106] This Court endorsed this list as providing “useful guidance” on the “types of matters” that would trigger further assessment for relevance by the police (McNeil, at para. 59). However, that list requires modifications.

[108] The “referred to a hearing” threshold under e. is no longer a suitable standard.

[109] There is also ambiguity concerning the contours of the Ferguson Five’s exception for “pardons”. The reference to a “pardon” can only encompass two circumstances: a free pardon or a “true” expungement. A free pardon granted under s. 748 of the Criminal Code removes the conviction from McNeil disclosure obligations as “that person shall be deemed thereafter never to have committed the offence in respect of which the pardon is granted” (s. 748(3)). A “true” expungement under the EHUCA has the effect of restoring non-convicted status, with the person “deemed never to have been convicted of that offence” (s. 5(1)). The animating purpose of Stinchcombe and McNeil is to ensure that all relevant information is provided to the Crown so that disclosure obligations can be met. The relevance of a conviction is necessarily extinguished where a free pardon or a “true” expungement has been granted. A conviction that no longer exists cannot, by definition, be relevant to credibility, reliability or any other live issue at trial, and thus falls outside the scope of first party disclosure.

[110] A revised formulation of the Ferguson Five categories reflecting these adjustments would call for the police to disclose information concerning: any outstanding charge, finding of guilt, finding of misconduct, or conviction under any provincial or federal enactment for which a free pardon under s. 748 of the Criminal Code or an expungement under the EHUCA has not been granted.[Emphasis by PJM]

[112] Accordingly, the obligation extends to all relevant information, regardless of format….

….At a minimum, however, the police must automatically disclose the charge information associated with the misconduct (i.e., the date of conviction, finding of guilt, finding of misconduct, or outstanding charge; the offence; and the punishment). If the Crown seeks particulars about the misconduct, the police must provide this information upon request. In assisting the Crown to fulfill its disclosure obligations, it may also be helpful for police services to provide the Crown with a concise and accurate summary of the alleged disciplinary misconduct, especially where this would not otherwise be obvious from the nature of the charge.[Emphasis by PJM]

[114] I agree that residual privacy interests in the contents of criminal investigation files or police disciplinary records warrant due consideration. However, the balance cannot be struck so as to accommodate privacy at the expense of relevance. Police privacy interests cannot impede fair trial rights; they must yield to full answer and defence, but only to the minimum degree necessary to vindicate those rights (McNeil, at para. 43). Police officers must “accept this intrusion in the interests of achieving a proper result in the criminal case, but the law should provide them with some reasonable protection against use of the information for entirely different purposes” (P. (D.) v. Wagg (2004), 71 O.R. (3d) 229 (C.A.), at para. 46).

[118] That said, police cannot unilaterally withhold relevant material from first party disclosure based on their assessment of their privacy interests. Such material must be included in the package due to the Crown. The police role is triage and transmission; any privacy accommodations are operationalized downstream by the Crown, not used upstream to prevent inclusion in the McNeil package given to the Crown. While the ability to operationalize procedural safeguards to protect officer privacy is the sole responsibility of the Crown, the police may flag concerns, provide context and propose practical measures. The final call rests with the Crown, who must determine relevance and ensure that disclosure obligations are met.

C. What Are the Respective Roles of the Police and the Crown for the Purposes of Disclosure?

[124] In this part, I explain that while the police are to participate meaningfully,their role in disclosure is limited to an initial triage of police files for relevance and the transmission of information to the Crown. Where information is withheld as not relevant, the police must still alert the Crown to what exists and why they say it is being lawfully withheld.

(3) The Crown’s Duty to Inquire

[139] McNeil fortified Stinchcombe by formalizing the Crown’s duty to inquire. While the Court rejected the proposition that all state authorities constitute a single Crown entity, McNeil reinforced that the Crown is not a “passive recipient of relevant information with no obligation of its own to seek out and obtain relevant material” (para. 48). When put on notice of the existence of potentially relevant information in possession of other Crown agencies or departments, including potentially relevant evidence pertaining to the credibility or reliability of witnesses (para. 50), the Crown has a duty to inquire and to obtain that information if it is reasonably feasible to do so (para. 49).

(a) What May Qualify as Notice?

[140] An issue raised in this appeal is the content of the term “notice” for the purpose of engaging the Crown’s duty to inquire. McNeil does not confine the channels through which the Crown may be put on notice; rather, the duty arises when the Crown is “informed of potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case” (para. 50 (emphasis added)).

(b) Exceptions to the Duty to Inquire

[143] There are only two circumstances in which the Crown’s duty to inquire, once triggered, need not be carried through. First, the Crown need not inquire where the notice is “unfounded” — that is, so lacking in credibility, specificity, or nexus to the issues that no reasonable prosecutor would consider it capable of “reasonably impact[ing]” the case (McNeil, at paras. 15 and 49). Second, even when notice is founded, the duty ends if it is not “reasonably feasible” for a diligent prosecutor to obtain the material in the circumstances.

[144] Where notice is founded and it is reasonably feasible to obtain the material, prosecutorial practice requires targeted efforts to locate and disclose the information. The first step the Crown must take is to request the material from the police. If the police do not possess the material, cannot locate it or refuse to provide it, the Crown may then seek it from another prosecution file within its service (I.F., Attorney General of Ontario, at paras. 13-14). Where either limiting condition applies, the Crown should promptly explain its position to the defence so the accused can pursue whatever course is in their best interests.

D. Guidance on Disclosure

[148] I conclude with concise, operational guidance to ensure timely disclosure consistent with these principles:

(a) Relevance governs first party disclosure and sets a low, functional threshold. The “obviously relevant” threshold is not a higher bar but a proxy for the standard of relevance the Crown employs under Stinchcombe — that all material must be provided unless clearly irrelevant, privileged or its disclosure is otherwise governed by law.

(b) Police misconduct information is relevant in two ways. Misconduct tied to the investigation at bar is per se relevant and must be provided to the Crown. Other misconduct by an officer involved in the case may also be relevant if it could reasonably impact on the case against the accused. This will be so where the information relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence. This information is part of the first party disclosure package due to the Crown. These obligations are automatic and disclosure must be done without prompting.

(c) The “Ferguson Five” categories are reformulated as follows: any outstanding charge, finding of guilt, finding of misconduct, or conviction under any provincial or federal enactment for which a free pardon under s. 748 of the Criminal Code or an expungement under the Expungement of Historically Unjust Convictions Act has not been granted. The “Ferguson Five” aid triage but are not all that must be considered. The substance, not form, of the information controls, and “serious misconduct” is defined by its relationship to relevance.

(d) Concerning the scope of what must be disclosed, the police must automatically disclose, at a minimum, the charge information associated with the misconduct (i.e., the date of conviction, finding of guilt, finding of misconduct or outstanding charge; the offence; and the punishment). If the Crown seeks particulars about the misconduct, the police must provide this information upon request. In assisting the Crown to fulfill its disclosure obligations, it may also be helpful for police services to provide the Crown with a concise and accurate summary of the disciplinary misconduct found or alleged, especially where this would not otherwise be obvious from the nature of the charge.

(e) If, having properly informed themselves of the relevance standard, the police conclude the misconduct record is not relevant, the police must still notify the Crown of: (i) what is being withheld (i.e., the nature and content of the misconduct) and (ii) the reason for non-disclosure (i.e., why the relevance threshold was not satisfied).

(f) Once notified that material has been withheld, the Crown may request particulars; the police must provide them to permit the Crown to reassess and, where appropriate, override the initial police assessment.

(g) When the Crown is put on notice of potentially relevant information, it must make reasonable, feasible inquiries and disclose as appropriate.

(h) The police may convey privacy concerns, but the Crown determines whether and how to accommodate them. The Crown may, for example, give written notice to the affected officer and invite submissions. The officer could also annotate the McNeil package given to the Crown to explain their concerns. The Crown may accommodate such concerns. However, the governing principle remains relevance, and privacy yields to full answer and defence only to the minimum extent necessary.

(i) Administrative expungement alters only the record’s disciplinary related status and does not erase the underlying finding for criminal law purposes. The police must maintain any administratively expunged disciplinary records to fulfill its first party disclosure obligations to the Crown and to enable the Crown to discharge its Stinchcombe obligations.

(j) This system reserves and preserves the obligation of the Crown to make determinations of relevance, a role it routinely fulfills and one on which it is required to act independently, impartially and with fairness. The Crown’s decision is subject to judicial review if challenged.[Emphasis by PJM]

E. Application

[152] The police ought to have given the Decision to the Crown and the Crown ought to have disclosed it to the accused. The application judge was correct to order its disclosure.

R v Brennan, 2026 ONCA 459

[June 25, 2026] Possession: Circumstantial Evidence [B.W. Miller, David M. Paciocco, and J. George JJ.A.]

AUTHOR’S NOTE: This case demonstrates that simply occupying the driver’s seat of a vehicle in which contraband is discovered does not, without more, establish possession. Presence and proximity may give rise to suspicion, but they do not prove the essential elements of knowledge and control beyond a reasonable doubt.

Here, several features of the evidence proved significant. First, the accused did not own the vehicle, reducing the strength of any inference that they exercised dominion over its contents. Second, the contraband was concealed within a backpack rather than being openly accessible or obviously associated with the driver. Third, another person occupied the passenger seat, providing a realistic alternative source of possession and further undermining the inference that the contraband necessarily belonged to, or was controlled by, the accused. Taken together, those circumstances left open the reasonable possibility that the backpack—and its contents—belonged to the passenger or another individual.

While the accused’s position as the driver was a relevant circumstance, it could not, standing alone, establish possession. The Crown was required to prove that the accused knew of the contraband and exercised some measure of control over it. The surrounding evidence failed to bridge that evidentiary gap.

The Court of Appeal concluded that the evidence established little more than the accused’s presence in a vehicle containing contraband. Because the Crown failed to prove the requisite knowledge and control beyond a reasonable doubt, the conviction could not stand and an acquittal was entered.

[1] The appellant appealed his convictions for possession of various controlled substances for the purposes of trafficking. For the reasons that follow, the appeal is allowed and an acquittal entered.

Factual overview

[2] Police on patrol in downtown Ottawa saw an idling vehicle parked in front of a community housing development, in a spot reserved for staff. They approached the appellant, who was seated in the driver’s seat, as part of a trespass investigation. After speaking with the appellant, they determined that he was in violation of his house arrest conditions under a Conditional Sentence Order. He was arrested for failure to comply with his probation. The other occupant of the vehicle, Mr. Osborne, was permitted to leave.

[3] The appellant was not the registered owner of the vehicle and as the registered owner was not present, the police determined that it would have to be towed. They conducted an inventory search prior to towing. The search produced a hatchet wedged between the driver’s seat and the centre console, a digital scale in the centre console, and two backpacks on the rear seat. One of the backpacks contained crack and powdered cocaine, fentanyl, other controlled substances, as well as drug paraphernalia including a bong and pipe.

Analysis

[6] As explained below, we are persuaded that the trial judge erred in his analysis pursuant to the framework set out in R. v. Villaroman, 2016 SCC 33 and the appeal must be allowed on that basis. Accordingly, it is not necessary to address the other two grounds of appeal.

[7] The case against the appellant was circumstantial. In a case where the Crown relies on circumstantial evidence to establish constructive possession of controlled substances, there can be a conviction only if the accused’s knowledge and control of the substances is the only reasonable inference on the facts. The trier of fact “must determine whether any other proposed way of looking at the case as a whole is reasonable enough to raise a doubt about the accused’s guilt, when assessed logically and in light of human experience and common sense”: R. v. Choudhury, 2021 ONCA 560, at para. 19; see also R. v. Villaroman, 2016 SCC 33, at paras. 55-56.

[8] In this case, the trial judge correctly observed that knowledge and control of the drugs could not be inferred from the lone fact that the appellant was in control of the vehicle in which the drugs were located. He based his finding of guilt on control of the vehicle and three additional factors: (1) weapons are a tool of drug trafficking and a hatchet was found wedged between the driver’s seat and the centre console; (2) scales are similarly a tool of drug trafficking and scales were located in the centre console; (3) a significant quantity of drugs were found in the vehicle.[Emphasis by PJM]

[9] The trial judge concluded that it was “a reasonable inference” from these facts that both the appellant and his co-accused would have known that one of the backpacks contained drugs and that “[t]he evidence in totality” supported “a logical inference of both knowledge and joint control of possession.”

[10] The standard of proof beyond a reasonable doubt required that the trial judge be satisfied that there were no other plausible theories consistent with the evidence as a whole that were inconsistent with the guilt of the appellant. A person cannot be convicted on “a reasonable inference” where there are one or more reasonable inferences inconsistent with guilt. The problem in this case is that the appellant advanced a plausible theory inconsistent with guilt that the evidence cannot overcome: that Mr Osborne possessed the drugs alone.[Emphasis by PJM]

[11] Even in isolation, the evidence relied upon by the trial judge does not support a compelling inference that the appellant knew the drugs were in the vehicle. The appellant’s control of the vehicle was not a strong indication of knowledge given that all the drugs were in a backpack within the vehicle rather than directly in the vehicle itself. Indeed, the appellant did not own or rent the vehicle. The only evidence of the circumstances of his control of the vehicle was that he was seated in the driver’s seat while the vehicle was parked and the engine was idling. It was not known whether he had driven the vehicle to that location or how long he had been in the vehicle. This further weakened an inference from his control of the vehicle that he could be taken to know its contents. Given the challenges in inferring the appellant’s knowledge of the contents of the car without greater clarity as to the nature of his control over the vehicle, the location of the scales inside the console is not strong evidence of his knowledge of the link between the vehicle and drug activity. Although a hatchet, as a weapon, can be a tool of the drug trade, it is not unequivocally so. The fact it was in plain view and near the appellant is not compelling evidence of his knowledge of the drugs. And the significant quantity of the drugs is not an indicium of the appellant’s knowledge since there was no evidence that the drugs were put under his effective control. They were located in a personal container – a backpack – the contents of which were linked to Mr. Osborne by DNA evidence. Mr. Osborne was present in the vehicle and the backpack was on the seat behind him.[Emphasis by PJM]

[12] The trial judge did not adequately heed the location of the drugs in a backpack, where they were not open to view, and the link of the backpack to Mr. Osborne. Critically, there was no evidence of the appellant’s involvement in any conduct indicative of drug trafficking or in engaging with the backpack in any way. The fact that Mr. Osborne left the backpack behind when he was told he could go – a factor relied upon by the Crown before us – was equally consistent with Mr. Obsorne trying to manage the risk of arrest by leaving the drugs behind when he left.

[13] The only reasonable conclusion is that the totality of the evidence was equally consistent with sole possession by Mr. Osborne. Accordingly, it was an error to find that the case against the appellant had been proved beyond a reasonable doubt.

DISPOSITION

[15] The appeal is allowed, the convictions set aside, and an acquittal entered.

R v Sandhu, 2026 BCCA 268

[June 17, 2026] Accused Admissions: Circular Reasoning and Adoption by Silence [Reasons by Willcock J.A. with Horsman and Gomery JJ.A. concurring]

AUTHOR’S NOTE: Admissions by adoption in text message exchanges require more than a failure to deny an allegation. Silence amounts to an admission only where the circumstances are such that a response would naturally and reasonably be expected. Because that inquiry depends on assumptions about how people communicate, courts must exercise considerable caution before inferring that a failure to respond constitutes an acceptance of the truth of an allegation.

Here, the complainant texted, “I just know that it hurt & I heard someone saying ‘stop acting like a virgin.'” The trial judge treated the accused’s failure to respond as an admission. Viewed in context, however, that inference was not available. The complainant immediately followed with, “But like yeah it’s alll gooooodddds,” suggesting that no response or correction was required. In those circumstances, the accused’s silence could not fairly be interpreted as a positive acceptance of the allegations contained in the earlier message.

The trial judge also engaged in circular reasoning when assessing the accused’s credibility. The judge reasoned that because the text messages did not expressly record the complainant initiating sexual activity, the accused’s evidence that she had done so was not credible. In doing so, the judge rejected the accused’s explanation that his statement in a text message that the complainant “wanted it” was intended to convey precisely that point—that she had initiated or enthusiastically participated in the sexual activity. Having rejected that explanation, the judge then relied upon the absence of a more explicit text message to further discredit the accused’s testimony.

That reasoning was circular. The absence of a more detailed text exchange could not itself undermine the accused’s explanation unless there was an independent basis for rejecting it. Instead, the rejection of the explanation became both the premise and the conclusion of the credibility analysis. By using the same reasoning to reject the accused’s interpretation of the text messages and then to disbelieve his evidence more generally, the trial judge committed a reversible error of logic.

Introduction

[1] This is an appeal from a sexual assault conviction. The assault was found to have occurred when the complainant and the appellant were alone together in a hotel room on November 3, 2020. They had gone there with friends, R.E. and U.K., to relax and consume drugs and alcohol. The appellant, R.E., and U.K. took Xanax, the complainant drank gin. After the complainant became intoxicated, her parents tried to contact her. This led to considerable anxiety on the complainant’s part. In the hope that eating might sober her up sufficiently to permit her to speak with her parents, R.E. and U.K. left the hotel to get something for her to eat. When they returned a short time later, R.E. found the complainant locked in a bathroom wearing no pants or underwear. The trial judge found that the appellant sexually assaulted the complainant during the short absence of R.E. and U.K. She accepted the complainant’s evidence that the appellant admitted to her on the following day that he had done so.

[2] The critical findings included the trial judge’s conclusions that:

i. messages exchanged by the complainant and the appellant after the fact constituted an admission that sexual activity occurred;

[3] The appellant contends these conclusions are all affected by legal error undermining the trial judge’s conclusion on credibility, and the conviction should be set aside and a new trial ordered….

….In my opinion, the judge’s assessment of the appellant’s credibility was affected by misapprehension of the evidence, and an erroneous imputation of an admission to him. That error must necessarily have affected the analysis prescribed in R. v. W.(D.), [1991] 1 S.C.R. 742, 1991 CanLII 93.

[5] I appreciate the Supreme Court of Canada’s repeated admonition that “A court of appeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they ‘cannot be supported on any reasonable view of the evidence’”: R. v. R.P., 2012 SCC 22 at para. 10, citing R. v. Burke, [1996] 1 S.C.R. 474, at para. 7, 1996 CanLII 229. However, I cannot see how the conviction can withstand scrutiny in light of the fundamental errors in the assessment of the evidence identified by the appellant….

The Complainant

[8] The complainant’s evidence was that when R.E. and U.K. left the hotel room she was on one of the two beds in the room. She had no memory of moving, but next recalled being on the other bed with her face in a pillow and her back toward the appellant. She could not recall if she was still wearing her pants and underwear. She testified at trial that she “couldn’t figure out at that moment what he was doing” but that the appellant was doing something to her vagina and “it was hurting really badly in the moment”. Her hands were behind her back. She suggested the appellant was holding her arms but did not know that to be the case. She testified that she repeatedly said: “stop, what are you doing?”. She acknowledged, however, that she told the police in 2021 that she could not speak properly and that she was pushed into the bedding when she was saying “stop”. At trial, she testified to different effect, remembering “vividly” that the appellant said: “stop f****** screaming, stop acting like you’re a virgin”. She acknowledged she had no recollection of how the encounter ended.

[9] The complainant’s next recollection was being in the bathroom and hearing R.E. knocking on the door….

[12] She testified that conversation occurred before she and the appellant exchanged messages with one another via Snapchat later that day. Only some of the Snapchat messages were kept. The entire record of the exchanges that were saved and not deleted reads as follows:

[complainant]

A… are you 100% sure we didn’t have sex? Like I don’t remember a single thing that happened like I just don’t want to get pregnant

[appellant]

yeah we didn’t have sex at all

we didn’t even f***

[complainant]

Okay dude thank you

[appellant]

are you okay though?

in the moment you really wanted it

do you regret anything?

[complainant]

I’m fine. I don’t remember a single thing. I don’t remember wanting it or anything but I have a few flashbacks. I wish you just told me yourself and I didn’t have to ask you. But I know I was too f***ed up so I probably said I wanted it or something

So like I’m absolutely fine and not upset with anything at all :))

I just know that it hurt & I heard someone saying “stop acting like a virgin” But like yeah like its allll goooodddds

Today [the following day, Nov. 5, 2020]

[appellant]

Are your parents still mad?

[13] The complainant and appellant stopped talking about what occurred at the hotel after the Snapchat conversation, although they then had a lengthy romantic relationship and expressed love for one another. When the relationship ended, in November 2021, the complainant went to the police and made the allegation that resulted in the charge. When she did so, she produced for the police a “cropped” version of the Snapchat conversation. That version read as follows:

[appellant]

are you okay though?

in the moment you really wanted it

do you regret anything?

[complainant]

I’m fine. I don’t remember a single thing. I don’t remember wanting it or anything but I have a few flashbacks. I wish you just told me yourself

The Appellant

[15] The appellant’s evidence was that after R.E. and U.K. left the hotel room, he asked the complainant if she was OK; she seemed anxious. However, her mood then improved before she came close to him, put her arm around him, and said she wanted to be intimate. She removed her pants. He did not recall her taking off her underwear. He told her he would not be intimate with her. He did not remember what else was said. She then became upset, took her pants, and went into the bathroom where she remained until R.E. and U.K. returned.

Equivocal Statements as Admissions

[30] The judge concluded the Snapchat messages are a “clear admission” on the part of the appellant. The appellant contends the judge converted equivocal out-of-court statements in the messages into substantive evidence of guilt by treating them as adoptive admissions without the proper analysis.

[31] The judge described the Snapchat messages as the “strongest corroborating and supporting evidence” of the Crown’s case: RFJ at para. 147. She concluded the messages “support a clear admission that something occurred between [the appellant] and [the complainant] on the date, time, and place as alleged in this trial”: RFJ at para. 147 (emphasis added). Although this is somewhat unclear, I read it, in the light of the judge’s subsequent comments and findings, to be a conclusion that the appellant’s Snapchat messages, standing alone, amount to a clear admission of the sexual contact denied by the appellant.

[32] She found the appellant’s message “In the moment you really wanted it” to be “an admission on the part of [the appellant] about something of a sexual nature that occurred between himself and [the complainant], as set out in the Information before me for this trial”, that is: the sexual contact forming the basis of the charge: RFJ at para. 151 (emphasis added).

[33] In support of this admission, the judge identified what she considered to be inadequacies in the appellant’s response to the complainant’s messages, including the fact that:

[152] …Nowhere in Exhibit 1 [the Snapchat messages] does he say he allegedly turned her away. Nowhere in Exhibit 1 does he say that it was [the complainant] that removed her pants and underwear. Nowhere in Exhibit 1 does he respond to her when she says, “I just know that it hurt and I heard someone saying, ‘Stop acting like a virgin’”. And instead, all that his response to her was ‘are your parents still mad?’

[34] The judge accepted the Crown’s submission that the appellant’s message of “In the moment, you really wanted it” was a reference to the sexual contact alleged by the complainant. She was critical of the appellant’s lack of response to the complainant’s message that “it hurt” and that someone said, “Stop acting like a virgin”. His failure to respond was considered to be “incredulous” as “one would expect [the appellant] to respond… and ask what [the complainant] meant”: RFJ at paras. 179–180.

[36] ….In my view, the fact the judge based her conclusion on inferences is evident in her conclusion, at para. 178, that “[t]he exhibited Snapchat messages …are clearly about activity of a sexual nature or the possibility of such” between the appellant and the complainant (emphasis added), and her conclusion, at para. 180, that “if [the appellant] is to be believed and the submissions of the defence counsel accepted, one would expect [the appellant] to respond to those Snapchat messages”.

[37] It is true that the judge relied upon the appellant’s responses as well as his failure to respond, collectively, as admissions. But, in my opinion, there is nothing inculpatory in the appellant’s positive statements, and the messages can only have been taken to be admissions insofar as there was silence where a response was called for.

[38] The appellant’s only positive statements on November 4, 2020, were:

1. we didn’t have sex at all

2. we didn’t even f***

3. are you okay though?

4. in the moment you really wanted it

5. do you regret anything?[Emphasis by PJM]

[39] And on the following day:

6. are your parents still mad?

[40] The first two statements were clear denials.[Emphasis by PJM]

[41] Nothing can be inferred from the third statement, being the appellant asking whether the complainant was “okay”, given her intoxication and the anxiety she had demonstrated and testified to.

[42] For the fourth statement, the judge found the appellant’s saying the complainant “wanted it” (and presumably the complainant’s response that she probably had wanted it) were references to the sexual contact alleged. In doing so, the judge rejected the appellant’s testimony that the statement was a reference to the complainant’s desire to be intimate with him, and that his question whether she regretted anything was a reference to the complainant having consumed alcohol and removed her pants. The judge did not refer to that testimony when she said “there is no mention of [the complainant] coming on or seeking intercourse from [the appellant]” in the Snapchat messages. Instead, she cited the absence of an explicit reference to that conduct as a reason to disbelieve the appellant (at paras. 152 and 169). In doing so, she engaged in circular reasoning: she found the appellant to be unworthy of belief because his Snapchat messages did not mention the fact that the complainant had propositioned him, but that conclusion was based on the rejection of his evidence that when he wrote the complainant “wanted it” (and she responded that she probably had) he was, in fact referring to such a proposition.[Emphasis by PJM]

[43] In my opinion, nothing can be inferred from the appellant’s statement that the complainant “really wanted it”. That may have referred to either what happened or what did not happen. I see no reason to regard the statement as an admission of the sexual contact alleged.[Emphasis by PJM]

[44] Nor should anything necessarily be inferred from the appellant’s fifth statement asking whether the complainant regretted anything, given the fact the complainant had become very intoxicated and, according to the appellant, removed her pants.

[45] Finally, nothing should be inferred from the sixth statement, when the appellant asked about the complainant’s parents. They were known to be strict and had been contacting the complainant while she was at the hotel causing her to be anxious.

[46] The judge’s conclusion that the messages were about “sexual activity or the possibility of such” is not controversial; the appellant expressly assured the complainant they had not had intercourse and he testified that the question of intercourse must also have been the subject of the preceding Snapchat messages that were not kept. The question is not whether the complainant and the appellant were discussing sexual activity, but, rather, whether the messages were not only a denial that intercourse had occurred but also an admission that the appellant had had sexual contact with the complainant.

[49] An admission can only be inferred from silence where the circumstances clearly call out for a reply: R. v. Bridgman, 2017 ONCA 940 at paras. 82–83. The appellant contends the Snapchat messages pose only one question, whether they had had sexual intercourse, which he answered directly, and the complainant’s following messages do not include a direct allegation or require a response. The complainant herself appears to have regarded the matter as closed.[Emphasis by PJM]

[50] To support his submission that the lack of response was not a confession, the appellant relies, in particular, upon the cautionary words of the court in Bridgman that “[it] cannot be that the mere act of receiving a message on one’s electronic device constitutes the act of adoption, thereby transforming the statement into an adoptive admission”: at para. 88.[Emphasis by PJM]

[52] The judge did not expressly find that the complainant’s statement “I just know that it hurt” called out for a response. However, the judge (at para. 152) does appear to have drawn an adverse inference from what she considered to be his response; “Are your parents still mad?” Leaving aside the fact the judge misapprehended the exchange (as discussed below), did the appellant make an inculpatory admission by failing to respond to the statement that “it hurt”?

[53] Because the inference of adoption by silence relies on perceptions of how people should, or should not, respond to a given situation “trial judges are to approach adoption by silence with great care”: R. v. Robinson, 2014 ONCA 63 at paras. 58, 72. There may be reasons other than acceptance of the statement’s truth for an accused person to remain silent upon hearing or reading a statement: R. v. Scott, 2013 MBCA 7 at para. 21.[Emphasis by PJM]

[54] As the authors of McWilliams’ Canadian Criminal Evidence, 5th ed., (Toronto: Canada Law Book, 2013) (loose-leaf updated 2026), S. Casey Hill, David M. Tanovich, and Louis P. Strezos, note at 7-124:

One must approach adoption by silence with great care. In many cases the inference of adoption is based on perceptions of how the accused should respond in what are often extreme and unusual situations.

[55] In this case, it must be borne in mind that the messages to which the appellant might have been expected to respond suggested that no response was necessary. The complainant said:

1) She was fine;

2) She didn’t remember “a single thing” (and did not claim, as she did at trial, to recall the appellant hurting her) because she was “too f***ed up”;

3) She was absolutely fine and not upset with anything at all; and

4) “Its allll goooodddds”.

[56] In my opinion, it was an error in law, in the circumstances, to treat the absence of a reply to the complainant’s last Snapchat message as an admission. In doing so, the trial judge did not treat the appellant’s silence with great care as she was required to do.[Emphasis by PJM]

[59] The appellant did not testify that statement in question might have been made elsewhere, on another occasion but, rather, that he did not understand the complainant to be saying the statement was made when she was alone with him in the absence of R.E. and U.K. He acknowledged repeatedly that the Snapchat messages were about what happened at the hotel.

[60] Despite this testimony, the trial judge mistakenly thought the appellant testified the complainant’s Snapchat message “was not referring to the [hotel] allegation before this court”: RFJ at para. 91….

[62] The erroneous portrait of the appellant’s evidence was painted by Crown counsel and adopted by the judge….

[63] It was inaccurate to say the appellant suggested that the comment was made on any occasion other than November 3, 2020, or in a place other than the hotel.

[64] It appears that the trial judge also misapprehended the question “Are your parents still mad?” (which she considered to be part of the conduct that was “incredulous” and “telling”) to be a response to the last statement made on November 4, 2020: RFJ at paras. 152, 180. That last recorded message was, in fact, posted on the following day, November 5, 2020. The judge’s error also appears to have its origin in the closing submissions of the Crown (cited above) to the effect that the appellant had “diverted the conversation” to a discussion of the complainant’s parents.

[65] In conclusion, the judge’s interpretation of the Snapchat messages is affected by misapprehension and circular reasoning. It was an error to consider the messages to constitute an admission of wrongdoing on the appellant’s part, and to rely upon the messages as the “strongest corroborating and supporting evidence” of the Crown’s case.[Emphasis by PJM]

[66] There is no doubt that the Snapchat messages are entirely consistent with the complainant’s version of events. They are also consistent with the appellant’s evidence. Standing alone, they are not corroborative evidence as the judge described them. While it was certainly open to the judge to accept the evidence of the complainant, and reject the evidence of the appellant, and convict the appellant on that basis, I am of the view that we cannot uphold a conviction clearly based upon the view that, in these messages, the respondent admitted “something of a sexual nature that occurred between himself and [the complainant], as set out in the Information”.[Emphasis by PJM]

[112] In my view, the several mistakes as to the substance of the appellant’s testimony affected the assessment of his credibility, a central issue at trial, and would warrant appellate intervention if such had not already been called for by the legal errors I have described.

Disposition

[113] I would allow the appeal, set aside the conviction, and order a new trial.

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