COURT OF APPEAL FOR ONTARIO
Paciocco, Sossin and Madsen JJ.A.
BETWEEN
The Attorney General of Canada
on Behalf of The United States of America
Appellant
and
Nuwan Keith Wickramasinghe
Respondent
Roy Lee and Jane Conly, for the appellant
Michelle Psutka, for the respondent
Julianna Greenspan and Brandon Chung, for the intervener Criminal Lawyers' Association
Katie Doherty and Martin Heslop, for the intervener Attorney General of Ontario
Heard: May 15, 2026
On appeal from the stay entered by Justice Paul B. Schabas of the Superior Court of Justice on September 11, 2024, with reasons reported at 2024 ONSC 5007.
1The United States of America seeks the extradition of the respondent, Mr. Wickramasinghe, to stand trial in South Dakota on the equivalent of child luring charges. The extradition request came after lengthy proceedings in Ontario, in which the respondent pleaded guilty to child luring and child pornography offences.
2The respondent brought an application to stay the extradition proceedings against him on the basis that they constituted an abuse of process. He based his abuse of process primarily on the failure by the Ontario Provincial Police (the "OPP") and the Crown2 to disclose ongoing communication and information-sharing that the OPP engaged in with authorities in the United States. He claims that this information would have been material to his decision to plead guilty in the Ontario proceedings.
3The extradition judge agreed with the respondent. He determined that the conduct of the OPP, the Crown, and the Attorney General of Canada ("AGC") amounted to an abuse of process and ordered a stay of the extradition proceedings.
4The AGC, acting on behalf of the United States of America, appeals from this stay. The Attorney General of Ontario ("AGO") and the Criminal Lawyers' Association ("CLA") were granted intervenor status on the appeal.3
5In my view, the extradition judge was without jurisdiction to order the stay. Any unfairness in respondent's decision to plead guilty should have been addressed through an appeal of his conviction on the ground that his guilty plea should be set aside. The issues of concern relating to his extradition were within the purview of the Minister of Justice (the "Minister") at the surrender stage of the extradition process, not within the circumscribed role of the court at the committal stage.
6For the reasons that follow, I would allow the appeal, set aside the stay of proceedings and remit the matter to the Superior Court of Justice for a new extradition hearing.
I. Background
a. The Ontario proceedings
7In the spring of 2019, the respondent was charged in Ontario with child luring and other offences related to two Ontario complainants, M.W. and E.B.
8An authorized search of the respondent's electronic devices, including his computer hard drive, revealed, among other things, explicit photos and videos of an unknown young female wearing clothing connecting her to South Dakota. On October 11, 2019, the OPP sent "sanitized" screen captures to United States Homeland Security Investigations ("HSI") for assistance in identifying the unknown female. American authorities identified her as K.M.
9On October 16, 2019, K.M. told investigators in South Dakota that she was lured into sending explicit photos to the respondent and, later, into engaging in sexual acts on Skype when she was 14 and 15 years old.
10On March 25, 2020, child pornography charges pertaining to the contents of the respondent's computer hard drive were added to the charges against him in Ontario. In August 2020, the OPP shared a copy of the respondent's hard drive with authorities in the United States.
11On March 4, 2022, the respondent pleaded guilty in Ontario to two counts of child luring in relation to M.W. and E.B., and one count of possession of child pornography, which encompassed all the child pornography found on the respondent's devices, including the files related to K.M. The disclosure provided to the respondent before his guilty plea contained only one reference, set out in the Supplementary Occurrence Report, to future contact with HSI and the "potential for further charges". Otherwise, communications between the HSI and the OPP were not disclosed. On July 20, 2022, the respondent was sentenced to just under four years incarceration.
12On November 3, 2023, the Minister issued an Authority to Proceed ("ATP") under s. 15 of the Extradition Act, S.C. 1999, c. 18, authorizing the AGC to seek an order for committal before a judge of the Superior Court of Justice. By January 26, 2024, the respondent was granted day parole by the Parole Board of Canada, but given the extradition proceedings, he was not released. The respondent sought and was granted bail.
13After the respondent's release on April 25, 2024, his counsel sought to end the extradition proceedings by writing to the AGC advising that the respondent was willing to plead guilty in Ontario to offences in relation to K.M.
14The AGC responded to the respondent's proposal on June 5, 2024, indicating that a domestic resolution was "beyond the authority of the AGC, who represents the United States of America during the judicial phase of the extradition process proceedings and ultra vires the committal hearing". Rather, the AGC's view was that "any issues that relate to assessing the viability of a Canadian prosecution fall within the exclusive purview of the [Minister] during the surrender phase" and that the respondent would have an opportunity to make submissions to the Minister regarding this issue at that time. The AGC shared the request with the Crown, which declined the proposal as well as any future settlement discussions.
b. The abuse of process application
15At no time did the respondent seek to set aside his guilty plea. Instead, on May 21, 2024, the respondent brought his abuse of process application, making several arguments.
16First, he argued that the OPP breached its obligation to disclose all relevant and non-privileged material pertaining to its investigation of the respondent when it failed to disclose its ongoing communication and information-sharing with authorities in the United States.
17Second, he asserted that the OPP and the Crown breached his rights under s. 8 of the Canadian Charter of Rights and Freedoms by sharing his computer hard drive with authorities in the United States with no apparent limitations or caveats.
18Third, he argued that he pleaded guilty in Ontario while "in the dark about what was going on behind the scenes", resulting in exposure to a significant penalty in the United States exceeding the maximum penalty of 14 years in Canada. He tendered evidence suggesting that his Ontario trial counsel may have advised him to exercise his right to a trial and would have explored global domestic resolution had he known his client was exposed to prosecution in the United States.
19The respondent submitted that the abuse of process claims were directly related to the committal hearing, as the Record of the Case ("ROC") relied on by the United States was entirely derived from the abusive and Charter-infringing conduct of the OPP and the Crown.
20The extradition judge accepted the respondent's arguments. Specifically, he found that:
(a) He had jurisdiction to consider the abuse of process claim and grant a stay of proceedings;
(b) The Crown and the OPP breached their disclosure obligations under s. 7 of the Charter and under R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, when it failed to disclose its interactions with authorities in the United States;
(c) The respondent's privacy rights under s. 8 of the Charter were breached when his computer hard drive was produced to American authorities by the OPP without any apparent limitations on its use;
(d) The Crown's decision not to charge the respondent in Ontario with child luring in relation to K.M., leaving the respondent vulnerable to extradition without his knowledge, was an exercise of prosecutorial discretion that breached his s. 7 Charter rights; and
(e) The Crown and the AGC failed to inquire into or address the breaches of the respondent's rights in the domestic proceeding or to consider resolving the matter domestically.
21Ultimately the extradition judge concluded that the cumulative conduct of the OPP, the Crown, and the AGC constituted an abuse of process, making this one of the "clearest of cases" justifying the extraordinary remedy of a stay of the extradition proceedings under s. 24(1) of the Charter.
II. The Issues
22The AGC appeals, submitting that the extradition judge exceeded his jurisdiction given the lack of "nexus" between the alleged misconduct and the committal hearing. The AGC further submits that the abuse of process allegations were not substantiated and that a stay of proceedings was not justified in this case.
III. Analysis
a. Standard of review
23A decision to stay a proceeding is discretionary and attracts significant appellate deference. Intervention is not justified unless the appellant can establish that the extradition judge misdirected himself or the decision is so wrong that it amounts to an injustice: R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 117, 118; United States v. Khadr, 2011 ONCA 358, 106 O.R. (3d) 449, at para. 53, leave to appeal refused, [2011] 3 S.C.R. v (note); United States of America v. Talashkova, 2014 ONCA 74, 118 O.R. (3d) 622, at para. 7.
b. The applicable legal principles
24The Extradition Act facilitates Canada's international obligations to surrender persons so that they will face prosecution, or serve sentences imposed, in another country. The extradition process is rooted in principles of reciprocity, comity, and respect for differences in other jurisdictions: M.M. v. United States of America, 2015 SCC 62, [2015] S.C.R. 973, at para. 15; Canada (Minister of Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170, at para. 51.
25The extradition process has three stages:
(1) First, upon receiving an extradition request from a foreign state, the Minister decides whether to proceed with the request, and if so, issues the ATP.
(2) Second, if the Minister issues an ATP, an extradition judge determines whether to order committal for extradition. This is the only stage that is judicial.
(3) Third, if the extradition judge orders committal, the case moves back to the Minister to determine whether to "surrender" the individual sought for extradition to the requesting state: Extradition Act, ss. 15(1), 29(1)(a), 29(3), 40; M.M. at paras. 19-26.
26The functions of the Minister and the extradition judge are distinct. As Watt J. described, "the Minister and the extradition judge occupy two different solitudes", with neither intruding into the other's areas of responsibility: Germany (Federal Republic) v. Schreiber, 2000 CarswellOnt 5257 (Ont. Sup. Ct), at para. 74.
27Section 29(1)(a) of the Extradition Act exhaustively defines the limited role of the extradition judge at the committal stage. That role is to determine two matters: whether there is evidence admissible under the Extradition Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the ATP; and, whether the person before the court is the person sought by the requesting state: M.M., at paras. 22-23. As described in M.M., at para. 36, this is an "important, but circumscribed and limited screening function". The extradition hearing is intended to be expeditious and efficient: M.M., at para. 64; United States v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at para. 131.
28By contrast, the Minister's role at the surrender stage is broad, discretionary and essentially political in nature. The Minister must account for Canada's international obligations and the requirement to act as a responsible member of the international community in responding to the request of an extradition partner: M.M., at para. 25.
29The Minister's discretion at the surrender stage is not, however, unfettered. Pursuant to s. 44-47 of the Extradition Act, the Minister must order surrender only if satisfied that extradition is more appropriate than domestic prosecution, having balanced all factors that the Minister finds relevant in the circumstances: Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3. S.C.R. 609, at paras. 11-14. While the jurisprudence has identified numerous factors guiding the Minister's discretion, none are individually dispositive, nor do they need to be weighted equally: United States v. Lake, 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 30. Further, the Minister may yield to the interest of the requesting state in prosecuting the individual sought even where prosecution would be unlikely to succeed domestically: Sriskandarajah, at paras. 13-14.
30Jurisdiction to consider Charter issues is likewise divided between the Minister and the extradition judge.
31An extradition judge's jurisdiction to consider Charter issues flows from s. 25 of the Extradition Act, which provides jurisdiction to consider Charter issues that "pertain directly to the circumscribed issues relevant at the committal stage of the extradition process": United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 57. The focus is the committal hearing in Canada and not the eventual trial in the United States: United States v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, at p. 603. There is no "plenary" jurisdiction of a Superior Court judge to adjudicate claims of Charter violations in extradition cases: Logan v. United States of America, 2015 NBCA 60, [2015] N.B.J. No. 226, at para. 17, leave to appeal refused, [2015] S.C.C.A. No. 503.
32That being said, through the "residual category" of the abuse of process doctrine, the extradition judge may consider circumstances where the alleged misconduct, while not impacting the procedural fairness of the committal hearing itself, would nevertheless make proceeding with the committal proceedings amount to an abuse of process: Khadr, at para. 50; R. v. Larosa (2002), 2002 CanLII 45027 (ON CA), 166 C.C.C. (3d) 449, at para. 52. However, there must be sufficient "nexus" between the alleged misconduct and the committal hearing to ground a stay of proceedings through the residual category: Khadr, at para. 45; United States of America v. Whyte, 2016 ONCA 624, at para. 36; United States v. Lane, 2014 ONCA 506, 121 O.R. (3d) 721, at para. 45, leave to appeal refused, [2014] S.C.C.A. No. 425; Logan, at para. 18.
33A sufficient nexus has been found, for example, where evidence introduced at the committal hearing was obtained through misconduct of the requesting state (Khadr); where the committal hearing itself was a result of misconduct of the requesting state (United States of America v. Tollman (2006), 2006 CanLII 31732 (ON SC), 271 D.L.R. (4th) 578 (Ont. Sup. Ct)); and where threats were made to force a person to abandon the right to a committal hearing (Cobb).
34The Minister's jurisdiction to consider Charter-based claims at the surrender stage is much less constrained. Section 44(1)(a) of the Extradition Act requires the Minister to refuse surrender if it would be unjust or oppressive or where surrender would be contrary to the principles of fundamental justice under s. 7 of the Charter.
35Accordingly, the Minister may consider a broad range of possible misconduct. Concerns about the fairness of the eventual trial, potential double jeopardy, and disparities in sentencing regimes are also appropriately addressed by the Minister: United States of America v. Sriskandarajah, 2012 SCC 70, [2012] 3 S.C.R. 609, at para. 12; United States v. Magnifico, 2007 ONCA 535, 159 C.R.R. (2d) 315, at paras. 26-27, 32, leave to appeal refused, [2007] S.C.C.A. No. 452.
c. The extradition judge exceeded his jurisdiction
36In addressing the issue of jurisdiction, the extradition judge properly set out the limited scope of his role at the committal stage of the extradition process, including that he could assess the alleged Charter breaches "only in so far as the Charter breaches pertain directly to the circumscribed issues relevant to the committal stage". He also correctly indicated that it was open to him to consider the abuse of process doctrine, including claims under the residual category. Further, he understood the requirement of a nexus between the conduct alleged to be an abuse of process and the committal hearing itself.
37However, respectfully, the extradition judge erred in his application of these principles. Specifically, in my view, the reasons reflect two related difficulties that require this court's intervention: an overbroad understanding and application of the concept of "nexus" to the committal hearing; and a de facto appropriation of the functions and responsibilities of the Minister at the surrender stage. Although the errors are in effect two sides of the same coin, I address each turn.
i. Nexus and abuse of process
38I accept the AGC's argument that the allegedly abusive conduct of the OPP the Crown, and the AGC in this case does not "pertain directly" to the circumscribed issues relevant at the committal stage. The alleged misconduct is not alleged to have impeded the ability of the extradition judge to determine whether there is admissible evidence of conduct that would justify committal for trial in Canada and whether the person before the court was the person sought: Kwok, at para. 85; Khadr, at para. 37. The previous domestic investigation had "no bearing" on the circumscribed role of the extradition judge mentioned above. See Lane, at para. 44.
39A stay of the proceedings therefore depended upon there being a sufficient nexus between the alleged misconduct and the fairness of the extradition proceedings. The extradition judge determined that there was. He stated:
[I]n my view, the alleged breaches of the Crown's Stinchcombe obligations, and the exercise of discretion in not charging the [respondent] with offences relating to K.M., have a nexus to these proceedings. As the [respondent's] counsel argues, this committal hearing is held because of decisions by the Crowns taken in earlier proceedings and in this proceeding. There is therefore a nexus between the conduct in question and this hearing. As [the bail judge] pointed out at the bail hearings, it is the Crown's exercise of prosecutorial discretion that has led to this situation and this hearing. [Emphasis added.]
40The extradition judge took a cumulative view of what he saw as police and Crown impropriety in this case. He found that the conduct of the OPP and the Crown in the prosecution and investigation of the respondent, including their communication with the United States, their allegedly incomplete disclosure to the respondent, and the exercise of prosecutorial discretion to not pursue a domestic resolution, "led to" the extradition proceedings. This causal link constituted a sufficient nexus between the state misconduct and the committal hearing for a finding of abuse of process, in turn requiring stay.
41In my view, this stretches the concept of "nexus" to the committal hearing too far and resulted in a result that is so wrong that it amounts to an injustice.
42A finding of sufficient "nexus" to grant a stay under the residual category is rarely warranted in the committal context, reserved for exceptional cases involving egregious conduct with overwhelming evidence that the committal proceedings are rendered so unfair that they are contrary to the interests of justice: Logan, at para. 19. I note that in cases where a sufficient nexus has been found, it has been the conduct of the requesting state, not domestic authorities, that has been at issue. While it may be, as the extradition judge stated, that "the same scrutiny applies to domestic conduct which might threaten the court's integrity", the impugned conduct must pertain directly to the issues relevant at the committal stage. A close examination of the grounds relied upon by the extradition judge shows that this standard cannot be met on the misconduct alleged in these proceedings.
43The failure by the OPP and the Crown to disclose communication and information sharing to the respondent, "leaving him in the dark about what was going on behind the scenes" may well have born on the fairness of the guilty plea in the Ontario proceedings and could arguably have led to a successful appeal to have the Ontario convictions set aside: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696; R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307. But any such failure to disclose had no perceptible impact on the extradition proceeding itself. The fact that the failure to disclose related to dealings with the requesting state had no impact on the way the extradition proceedings were being conducted.
44As for the decision not to lay charges involving K.M. in Ontario, that was a matter of prosecutorial discretion to be exercised by the Crown, not the AGC. More importantly, the decision to defer prosecution to an extradition partner is a discretionary matter that did nothing to render the extradition proceedings unfair: United States of America v. Kavaratzis (2006), 2006 CanLII 13237 (ON CA), 208 C.C.C. (3d) 139 (Ont. C.A.), at para. 26, leave to appeal refused: [2006] S.C.C.A. No. 252; United States of America v. Jones, 2022 ONSC 1711, 505 C.R.R. (2d) 140, at paras. 39-42, 44.
45This leaves the decision to share the computer hard drive with authorities in the United States without apparent limitation or caveats. Even if wrongful, it is not apparent that the use of the hard drive to extract information relevant to the offences involving K.M. would have been inappropriate. In any event, assuming there is some nexus between this "breach" of the Charter and the development of the record in the case, it is not at all clear that such a transgression, standing alone, would have warranted a stay, even in the mind of the extradition judge.
46It is therefore my view that the extradition judge took too broad a view of the nexus requirement, resulting in an injustice. Care must be taken in this regard. Taking an overly expansive approach in identifying a nexus would significantly and impermissibly broaden the role of an extradition judge at the committal stage and the availability of a stay of proceedings under the residual category. In effect, committal hearings would require trial-like inquiries into exercises of prosecutorial discretion and communication between domestic authorities and the requesting state – an outcome expressly disavowed by the Supreme Court on numerous occasions.
47Indeed, as the Supreme Court noted in Dynar, at para. 122:
[I]t cannot be forgotten that the hearing is intended to be an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canada's international obligations. As La Forest J. stated for the majority in McVey, supra, at p. 551, "extradition proceedings are not trials. They are intended to be expeditious procedures to determine whether a trial should be held". In fact, in some contexts, a requirement for more "trial-like" procedures at the extradition committal stage may "cripple the operation of the extradition proceedings".
48The extradition judge's expansive application of the concept of nexus would erode the expeditious nature and defined scope of the committal stage in the extradition process. I would not accept such an approach.
ii. The separate functions of the extradition judge and the Minister
49While the extradition judge acknowledged his circumscribed role in the committal hearing, in effect, he usurped the Minister's authority at the surrender stage of the extradition process. Extradition judges must avoid taking an expansive view of their Charter jurisdiction when doing so would tread on Ministerial authority. The extradition judge failed to do so. This alone is sufficient to require that the stay be set aside.
50As noted above, at the surrender stage, the Minister must be satisfied that extradition is more appropriate than domestic prosecution and must refuse to surrender where the consequences would be contrary to the principles of fundamental justice under s. 7 of the Charter, or if the surrender would be unjust or oppressive, having regard to all of the circumstances: M.M., at para. 26; Sriskandarajah, at para. 12; Lake, at para. 31.
51Therefore, whether this is a case in which extradition should not proceed was an assessment for the Minister to make within the governing statutory framework. Parliament chose to give broad discretionary authority to the Minister at the surrender stage, and the separate functions of the extradition judge and the Minister must be maintained: Kwok, at paras. 32, 57.
52The concerns articulated by the extradition judge regarding OPP and Crown conduct were appropriately within the purview of the Minister. The alleged irregularities about disclosure, the sharing of the computer hard drive with authorities in the United States, and the exercise of prosecutorial decision not to charge the respondent domestically, were all matters for the Minister's consideration at the surrender stage. So too were any alleged Charter violations flowing from this conduct.
53As submitted by the AGO, the breadth of the abuse of process doctrine ought not to be understood as collapsing the distinctions between various actors and their unique roles in the extradition process.
54The trial judge's application of the abuse of process doctrine would obscure the distinct roles of the extradition judge and the Minister. In my view, it was an error for the extradition judge to decide a broad abuse of process argument at the committal stage, pre-empting the Minister's assessment and interfering in the responsibility of the executive: United States of America v. Jones, 2022 ONSC 11, 502 C.R.R. (2d) 106, at para. 30.
IV. conclusion and remedy
55Given my conclusion that the extradition judge was without jurisdiction to find an abuse of process and stay the proceedings, it is unnecessary to address the remaining grounds of appeal.
56As the extradition judge erred in his application of the applicable legal principles outlining his jurisdiction, this court may, pursuant to ss. 55(1)(a)(ii) and 55(2) of the Extradition Act set aside the stay and order a new committal hearing. In my view, it is appropriate to do so.
V. Disposition
57I would allow this appeal and remit this matter for a fresh committal hearing before another judge of the Superior Court of Justice.
Released: July 31, 2026 "D.M.P."
"L. Madsen J.A."
"I agree. David M. Paciocco J.A."
"I agree. Sossin J.A."
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.
- For added clarity, I refer to the Crown prosecutors for the provincial Crown as "the Crown", the provincial Crown, as the Attorney General of Ontario ("AGO") and the federal Crown as the Attorney General of Canada ("AGC").
- The AGO and the CLA's submissions were primarily focused on the Crown's disclosure obligations under s. 7 of the Canadian Charter of Rights and Freedoms, not on the issue of jurisdiction.