RCMP retention period for disciplinary records questioned

The Supreme Court of Canada’s decision in R. v. McNeil created an obligation for the Crown to disclose to defence counsel records relating to findings of serious misconduct of the investigating police officers in circumstances where the records are relevant to the proceedings against an accused.

A staff relations representative made a complaint to our Office on behalf of RCMP members. The complainant contended that the disclosure of informal disciplinary records to the Crown was not consistent with the McNeil decision, arguing that the Supreme Court only requires the disclosure of disciplinary records in cases where the alleged misconduct has been the subject of a hearing.

The RCMP took the position that police misconduct of varying degrees of severity may be dealt with through either formal or informal disciplinary proceedings, so that the exclusion of all records relating to informal disciplinary proceedings might contravene McNeil by keeping potentially relevant records from the Crown and, in turn, defence counsel.

We agreed with this position and emphasized that the obligation rests with the Crown to determine the relevance of the disciplinary records to the particular proceedings.

Although we found the complaint to be not well-founded, we had serious concerns with the RCMP’s retention policies regarding disciplinary records, which are retained until each member reaches 100 years of age, whereas most other police services across the country retain disciplinary or misconduct information for a period of between three to five years. We therefore recommended that the RCMP reconsider its retention policies.  The Force however has since responded that it will continue to follow its current practice.