COURT FILE NO.: CR-21-388-00MO DATE : 2022-03-22

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE EXTRADITION ACT , S.C. 1999, c. 18, AS AMENDED

B E T W E E N:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA – and – KYLE JONES

The Honourable Justice Catrina D. Braid

Counsel: Kiran Gill, Counsel for the Requesting State/Respondent Michelle Psutka, Counsel for the Person Sought/Applicant

HEARD: February 1, 2022

RULING ON ABUSE OF PROCESS APPLICATION AND FOR DISCLOSURE TO BUILD A RECORD FOR THE MINISTER OF JUSTICE

I. OVERVIEW

[1] The United States of America seeks the extradition of Kyle Jones to stand trial on charges corresponding to the Canadian offence of luring a child, contrary to section 172.1(1) of the Criminal Code, R.S.C. 1985, c. C-46. Mr. Jones alleges abuse of process by the authorities.

[2] Mr. Jones previously brought an application seeking disclosure of a copy of the hard drive seized from him and of communications between Canadian and American authorities regarding the investigations into his online activities. He sought the disclosure to support an abuse of process application, which was originally based on two arguments: 1) that the authorities intentionally delayed his extradition to ensure maximum incarceration; and 2) that committal will allow for perpetual piecemeal prosecution for conduct committed from the same place and over the same time period, when Canadian authorities had the evidence and jurisdiction to domestically prosecute him in relation to all violations discovered on the hard drive. For the reasons set out in United States of America v. Jones, 2022 ONSC 11, I found that the conduct complained of is incapable of supporting a stay of proceedings and that there is no air of reality to both categories of abuse claims. I dismissed the application for disclosure.

[3] Mr. Jones has now brought an application requesting a stay of proceedings due to abuse of process. In the alternative, he requests that the court exercise its discretion to order disclosure for the purpose of building an evidentiary record for his eventual submissions to the Minister of Justice. Mr. Jones has offered no new evidence or argument on the abuse of process application.

[4] In light of my earlier ruling on the disclosure motion, Mr. Jones is abandoning the argument that the authorities intentionally delayed his extradition to ensure maximum incarceration. At this stage, he accepts that he does not have a factual basis to pursue the intentional delay argument without the correspondence that he requested in disclosure. However, even without the disclosure, Mr. Jones maintains that the record still makes out an abuse of process based on the piecemeal prosecution argument.

[5] In these reasons, I shall determine the following issues:

A. Should the court order a stay for abuse of process? B. Should the court order disclosure to build a record for the Minister?

[6] For the reasons set out below, the application is dismissed.

II. BACKGROUND

[7] It is alleged that, between 2014 and 2015, Mr. Jones communicated with a 13-year-old female in Pennsylvania, whom I shall refer to as “J”, via multiple social media sites. He asked her to send sexually explicit nude images and videos of herself. Through threats and coercion, Mr. Jones maintained this exchange. He told the complainant that he knew where she lived and threatened to come to her house. He sent her a message containing her correct address. He also told her that he knew where she went to school and that he would find her. On one occasion, he instructed her to cut herself on Skype because he said that she was “trash”. When she refused to cooperate further, he carried out his threats of disseminating her sexually explicit photos to her mother and to her friends over social media.

[8] Mr. Jones was approximately 23 years old at that time. He is a Canadian citizen.

[9] In 2015, Canadian authorities began an investigation after a victim in Saskatchewan reported that a male had extorted sexually explicit images from her online by threatening to post the images already in his possession online. That same year, the Federal Bureau of Investigation (“FBI”) also commenced an investigation involving two young complainants in California who made similar allegations. Canadian authorities were aware of and cooperated with the FBI investigation.

[10] In August 2015, the Niagara Regional Police Service conducted a search warrant at the applicant’s residence and seized his hard drive. The hard drive contained naked images and videos of numerous minor females engaged in sexually explicit activity. Many of the videos depicted females who were in obvious distress and who were being instructed to perform sexual acts by the applicant.

[11] The applicant was ultimately charged in St. Catharines, Ontario, in relation to the offences committed against the complainant in Saskatchewan. In 2016, he pled guilty to child luring and distribution of child pornography. On March 1, 2017, he was sentenced to two years less a day, taking into account 200 days of pretrial custody. He also received 3 years of probation as well as a s. 161(1) prohibition order for 15 years. The applicant was released on parole in November 2017. His probation began in March 2019 and will be completed in March 2022. While on bail, parole and probation, the applicant was not charged with breaching any conditions.

[12] After the applicant pled guilty, the FBI obtained the hard drive seized from the applicant’s computer. When the FBI reviewed it, they discovered evidence relating to J. According to the Record of the Case that has been provided as part of the extradition proceedings, the hard drive allegedly contained folders labelled “J” and “Princess J”. These folders contain images of a young complainant engaged in sexually explicit conduct, as well as Skype videos in which the applicant instructs her to masturbate while she is crying. In one of the Skype videos, the applicant can be seen briefly in the recording.

[13] In 2017 and in 2020, the complainant J, who resides in Pennsylvania, identified the applicant as the individual who had exploited her online.

[14] The allegations made by the complainant in the Canadian proceedings are similar to those involving the complainant J in Pennsylvania in the following ways:

i. They occurred in 2014 to 2015 while the applicant was in Ontario; ii. The applicant initially commenced communication with the complainants over Kik messenger; iii. He obtained sexually explicit material from them and then threatened to distribute their explicit material when they refused to send more; iv. He instructed the complainants to perform sexual acts over Skype; v. He posted the complainants’ material to social media applications using Dropbox; and vi. He used the alias “Jake”.

[15] It appears that the allegations made by the complainants in California share many of the same similarities. At this time, the status of the FBI investigation related to the California complainants is unclear. The U.S. has not sought the applicant’s extradition on any offences against the California complainants.

[16] On January 27, 2021, the U.S. certified its Record of the Case for prosecution in support of an extradition request to have the applicant face trial in Pennsylvania with respect to his alleged exploitation of the Pennsylvania complainant. On February 2, 2021, the Minister of Justice (“the Minister”) issued an Authority to Proceed pursuant to s. 15 of the Extradition Act, S.C. 1999, c. 18, authorizing the Attorney General of Canada to seek an order for the applicant’s committal for extradition for prosecution on the basis of the Canadian offence of child luring, contrary to s. 172.1 of the Criminal Code.

[17] The applicant was arrested on March 23, 2021. If convicted in Pennsylvania, Mr. Jones faces a mandatory minimum sentence of 15 years and may expect to receive a sentence of 30 to 62 years in custody.

III. ANALYSIS

A. Should the Court Order a Stay for Abuse of Process?

[18] The protection of the liberty of the person sought is one of the most important functions of the extradition hearing: see United States of America v. Dynar, [1997] 2 S.C.R. 462 at para. 121.

[19] The extradition judge has limited jurisdiction under the Canadian Charter of Rights and Freedoms, which is only to be exercised in exceptional cases. Barring obvious or urgent circumstances, judges should be reluctant to pre-emptively interfere with the manner in which the executive may fulfill its responsibilities. There may conceivably be situations where it would be unjust to surrender a person sought either because of the general condition of the governmental and judicial apparatus or because an individual may be subjected to oppressive treatment. However, these decisions are primarily within the authority of the executive, who may be able to obtain sufficient assurances from the foreign country to ensure compliance with the requirements of fundamental justice. The court must tread with caution in this area: see Argentina v. Mellino, [1987] 1 S.C.R. 536, at paras. 33-37.

[20] In some exceptional circumstances, an extradition judge may stay the extradition proceedings against the person sought on the basis of an abuse of process, where the impugned conduct of the foreign state taints the integrity of the extradition court. The fact that the executive may have the statutory jurisdiction to refuse to issue a surrender order for this same reason does not deprive the extradition court of the jurisdiction to protect its own integrity by staying proceedings on the ground of abuse of process: see United States of America v. Khadr, 2011 ONCA 358, 106 O.R. (3d) 449 at paras. 31-52, leave to appeal refused, [2011] S.C.C.A. No. 316.

[21] Section 25 of the Extradition Act gives an extradition judge jurisdiction to consider Charter issues that pertain directly to the circumscribed issues relevant at the committal stage of the extradition process. Where a stay of proceedings is sought, there should be a nexus between the conduct alleged to constitute an abuse of process and the committal hearing itself. Such a nexus has been found to exist where the evidence introduced at the committal hearing was obtained through the misconduct of the requesting state (Khadr), where threats or inducements are made to force the person sought to abandon the right to a committal hearing (United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587) and where the committal hearing itself was the result of misconduct by the requesting state (United States of America v. Tollman, [2006] O.J. No. 5588 (S.C.)): see United States of America v. Lane, 2014 ONCA 506, 121 O.R. (3d) 721, at para. 45, leave to appeal refused [2014] S.C.C.A. No. 425.

[22] When the person sought raises concerns about the decision not to prosecute them in Canada, these concerns are raised in the context of s. 6 of the Charter, which grants every Canadian the right to remain in Canada. There are multiple factors that could impact the discretion of Canadian authorities in deciding whether or not to prosecute, requiring consultation between the appropriate authorities in the two countries. The objectives underlying extradition are pressing and substantial and are sufficiently important to make it a reasonable limit within the meaning of s. 1 of the Charter. Where a decision has been made not to prosecute a person in Canada, extradition is a reasonable limit on the Charter right in s. 6(1). It is often better that a crime be prosecuted where its harmful impact is felt and where the witnesses and the persons most interested in bringing the criminal to justice reside: see United States of America v. Cotroni, [1989] 1 S.C.R. 1469 at p. 1471.

[23] A stay of proceedings for abuse of process is rarely warranted. This is an exceptional remedy reserved for the clearest of cases involving the most egregious forms of state conduct or other abuse, where the continuation of the judicial proceedings would irreparably prejudice the integrity of the justice system. Allegations of abuse by state actors are grave matters and should not be given any credence without concrete proof. Apart from the Charter, the extradition judge has an inherent and residual discretion at common law to control its own process and prevent its abuse, when the proceedings are unfair to the point that they are contrary to the interests of justice: see United States of America v. Logan, 2015 NBCA 60, at para. 19, leave to appeal refused [2015] S.C.C.A. No. 502; Cobb at para. 37.

[24] A claimant seeking a stay is faced with an onerous burden: see United States v. Cavan, 2015 ONCA 664, 127 O.R. (3d) 430, at para. 57.

[25] There are two categories of cases that can constitute an abuse of process: i) state misconduct that that is directly and inextricably related to the committal hearing and that implicates the fairness of the committal hearing, and ii) the residual category, where the conduct alleged does not impact the fairness of the hearing, but where committing the person sought would offend the principles of fundamental justice and the community’s sense of fair play and decency: see Cobb, at paras. 37-40; Khadr at paras. 23, 29, 34 and 51.

[26] The extradition judge may stay committal proceedings under the residual category if committal would amount to an abuse of process or breach the principles of fundamental justice, no matter how fairly the proceedings are conducted. The residual power to stay proceedings is aimed at vindicating the court’s integrity and the public’s confidence in the legal process in the face of improper state conduct. The prosecution is set aside not on the merits, but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. The jurisdiction to stay proceedings on the grounds of abuse of process lies at the heart of the court’s integrity and the independence of the judicial process: see Khadr at paras. 32 and 51.

[27] Even though an abuse of process may also call for a remedy at the ministerial stage, this does not oust the jurisdiction of the court to control its own process and preserve the integrity of the proceedings: see Cobb at para. 48.

[28] In this case, the abuse of process allegations engage the residual category only. The applicant asserts that the conduct of the Canadian and American authorities so offended the principles of fundamental justice and the community’s sense of fair play and decency as to disentitle them from pursuing committal. The applicant states that, despite Canadian authorities having the evidence and jurisdiction to prosecute the applicant domestically for all offences discovered on his hard drive, he was charged and pled guilty in Canada only in relation to the Canadian victim.

[29] The applicant has abandoned the delay argument and is only pursuing the allegation of potentially perpetual piecemeal prosecution. In my earlier reasons, I found that there is no air of reality to this argument, and the applicant has not provided any new evidence or argument to support this position. For the sake of completeness, I will address the issue again.

[30] Even absent intentional conduct, the applicant submits that committal would shock the community’s conscience as it would permit the potentially perpetual piecemeal prosecution of the applicant for conduct committed over the same time and in the same place, when Canadian authorities had both the evidence and the jurisdiction to prosecute him domestically in one proceeding in relation to all victims discovered on the hard drive. The applicant states that Canada’s decision not to prosecute him in relation to all victims depicted on his hard drive was abusive because it now subjects him to piecemeal prosecution in foreign jurisdictions in perpetuity. He submits that fairness demands a choice rather than a splitting of jurisdictions, since the evidence in support of multiple prosecutions comes from the same source discovered at the same time.

[31] The applicant submits that, while this does not constitute double jeopardy as the charge relates to a different complainant, it is very close to double jeopardy. The applicant states that, if this court allows for committal to Pennsylvania, then California or another state may come next.

[32] The applicant relies on the decisions of R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762 and Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609 in support of the submission that Canada’s extradition treaty with the United States is intended to allow for a choice of appropriate jurisdiction. However, the circumstances of those cases are entirely different than the one before this court. In those decisions, the court was dealing with multiple co-accused or a single transnational offence. The Supreme Court of Canada clearly stated that it is for the Minister to decide whether granting the foreign state’s request of extradition is appropriate (Sriskandarajah at para. 23); that choice of jurisdiction where the offender ought to be prosecuted is made at the executive level (Larche at para. 67); and that extradition is not to be avoided at all costs (Sriskandarajah at para. 23).

[33] In United States v. Tyndall, 2021 ABCA 95, the accused was convicted in Canada of luring a child (a 9-year-old girl in Virginia) and possession of child pornography. He received a two-year sentence and was granted full parole in June of 2017. In October of 2017, the U.S. sought Mr. Tyndall’s extradition for the equivalent of child luring of a 14-year-old girl in Pennsylvania. There was some overlap of the time periods covered by the American charges and the Canadian charges. Mr. Tyndall alleged that he would be subjected to double jeopardy if committed to stand trial in Pennsylvania.

[34] Mr. Tyndall’s communications with the 14-year-old complainant in Pennsylvania formed part of the evidence found on his computer when searched. However, the accused was only convicted and sentenced in Canada for luring the 9-year-old and not the 14-year-old.

[35] The extradition judge considered whether the prosecution of Mr. Tyndall in two countries for similar conduct, where the evidence respecting the extradition matter formed part of the information in the hands of Canadian authorities at the time of his prosecution here, is so abusive that committal would shock the public’s conscience or offend the fairness and integrity of the extradition process. Mr. Tyndall was sought for extradition for a different offence from the Canadian charge, for which he had been tried and punished. The extradition judge denied the application for a stay of proceedings based on abuse of process, which was upheld by the Court of Appeal of Alberta, with leave to appeal to the Supreme Court dismissed, [2021] S.C.C.A. No. 174.

[36] In the case before this Court, the applicant is not sought for prosecution of the same offence for which he was tried and punished in Canada. Offenders can be tried for multiple offences arising out of the same time period, even when the timing of disclosure means that the offender had already paid his debt to society. If a new complainant comes forward after an accused has been tried for the same offence, the accused must still account for the crime against the second victim: see Tyndall, at paras. 38 and 63.

[37] Although the allegations in this case before the Court regarding perpetual prosecution are framed slightly differently, the facts are very similar to the facts in Tyndall. The reasoning in Tyndall is a complete answer to the applicant’s submissions regarding perpetual prosecution. An accused can be tried separately for crimes occurring over the same time and in the same place, even when Canadian authorities had both the evidence and the jurisdiction to prosecute him domestically in one proceeding in relation to all victims discovered on the hard drive.

[38] The applicant’s submission is based on the indefensible proposition that he had the right to plead guilty in Canada to all charges arising out of his activities of child luring and child pornography, regardless of where the victim resides. He had no such right. Persons, such as the applicant, whose crimes know no borders run the risk that any of the countries harmed by their actions may justifiably demand that they answer for their actions in that country through the extradition process: see France v. Liang, 2007 ONCA 741, 88 O.R. (3d) 12, at para. 24.

[39] Even if prosecuting the applicant in Canada was a possible option, that does not, by itself, bar extradition. The Minister must decide whether prosecution in Canada is realistic or an equally effective option, and also whether it is a desirable option having regard to our country’s international obligations and a legitimate request from one of our extradition partners: see Liang, at para. 38.

[40] Even if sufficient evidence exists on the hard drive for the applicant to be prosecuted in Canada, he has no right to demand that he be prosecuted in Canada nor does the Court have the right to interfere with any decision as to the jurisdiction of where he will be prosecuted. He has no right to require Canadian authorities to exercise their discretion in a way so as to allow him to affect a global resolution in Canada. If the allegations are proven, the applicant knew that he was committing cross-border crimes via the internet with young victims in different countries.

[41] The applicant’s submissions are driven by the fact that he would likely serve a less severe sentence in Canada for his offences than if extradited. While it is clear that the sentence in Pennsylvania will certainly be longer than the one that the applicant received in Canada for the same offence, it is the duty of the Minister to consider such matters, and the Court should not interfere.

[42] The applicant states that the decision not to prosecute him for all of his conduct in Canada, including conduct with respect to victims in other countries, leaves him exposed to prosecutions in perpetuity. This is an issue that is properly considered by the Minister under s.44(1)(a) of the Act at the surrender stage.

[43] The applicant’s argument that there is the potential for piecemeal prosecutions in perpetuity arises from the concern that, once the current charges in the U.S. have been completely dealt with, the U.S. may seek to extradite him on the charges related to the complainants in California. At this time, the status of the FBI’s initial investigation into two victims in California is unknown. This is the first time that the U.S. has sought the applicant’s extradition. It is premature and speculative to suggest that the applicant will be the subject of perpetual piecemeal prosecution.

[44] When there is a claim that the person sought should have been prosecuted in Canada, it is for the Minister to decide whether granting the foreign state's request of extradition is appropriate. The ability of Canada to prosecute the offences remains but one factor in this inquiry, and may be offset by other factors, such as where the prosecution may most efficaciously be carried out: see Sriskandarajah, para. 23.

[45] Extradition cases, by their very nature, often involve trans-border crimes which may result in overlapping domestic and foreign prosecutorial jurisdiction. The claim of perpetual prosecution is closely tied to the submission that Canadian authorities should have prosecuted the applicant for all conduct in Canada. This argument is similar to the double jeopardy argument that was unsuccessfully advanced in United States of America v. Qumsyeh, 2015 ONCA 551, 126 O.R. (3d) 641, leave to appeal refused, [2015] S.C.C.A. No. 370.

[46] The applicant has failed to meet his onus to establish that a stay of proceedings for abuse of process is warranted in this case. This is not one of the clearest of cases involving the most egregious forms of state conduct or other abuse, where the continuation of the judicial proceedings would irreparably prejudice the integrity of the justice system.

[47] The application for a stay of proceedings is therefore dismissed.

B. Should the Court Order Disclosure to Build a Record for the Minister?

i. The Role of the Minister Once Committal is Ordered

[48] In my prior reasons, I provided a detailed overview of the extradition process, which I will not repeat in these reasons. However, I shall provide a brief overview of the Minister’s role once committal is ordered.

[49] In the event that the judge orders the committal at the conclusion of the extradition hearing, the next step of the process permits the Minister to order the surrender of the person sought to the extradition partner. This next step in the extradition process is political in nature: see United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 32.

[50] Under the provisions of the Extradition Act, there are a number of considerations that the Minister is obliged to assess in making this decision. Pursuant to s. 43(1) of the Act, the person committed may make submissions to the Minister on any ground that would be relevant to the Minister in making the decision as to whether to order surrender.

[51] There are two statutorily enumerated considerations for the Minister that could be addressed in submissions by the applicant. Pursuant to s. 44(1)(a) of the Act, the Minister shall refuse to make a surrender order if satisfied that the surrender would be unjust or oppressive, having regard to all the relevant circumstances. Under s. 47(a) of the Act, the Minister may refuse to make a surrender order if satisfied that the person sought to be extradited would be entitled, if that person were tried in Canada, to be discharged under the laws of Canada because of a previous acquittal or conviction.

[52] The Minister must consider the impact of extradition on the person sought, including an assessment, when raised, as to whether prosecutorial discretion was exercised appropriately and in accordance with s. 6 of the Charter. They must consider the factors as set out in Cotroni. They must determine whether prosecution in Canada is possible or realistic or an equally effective option, and also whether it is a desirable option having regard to Canada’s international obligations and a legitimate request from a treaty partner: see Liang at para. 38.

[53] A decision by Canadian authorities to prosecute, or not to prosecute, certain offences is a discretion they are entitled to exercise subject to findings of bad faith: see United States v. Lane, 2017 ONCA 396, 138 O.R. (3d) 167, at para. 96, leave to appeal refused, [2017] S.C.C.A. No. 390.

[54] In deciding whether or not to order surrender, the Minister must consider whether surrender would violate the person's rights guaranteed by s. 7 of the Charter. The applicable test is whether ordering surrender would "shock the conscience of Canadians" or whether extradition would place the person in an "unacceptable" situation. In making this assessment, the Minister must consider and balance all relevant factors, such as Canada’s international treaty obligations as well as the need to respect the fugitive’s constitutional rights: see Cobb, at para. 34; United States of America v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283 at paras. 64-69; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779.

[55] The applicant is entitled to seek disclosure from the Minister regarding the information and materials that he seeks from the court. The Minister is obliged to ensure that a fugitive has adequate disclosure and a reasonable opportunity to advance his or her position in relation to whether or not a surrender order should issue: see Kwok, at paras. 104-107.

[56] The power is statutorily vested in the executive to order the surrender of the person sought. The Minister is obliged to consider the potential surrender of the person sought against arguments that such surrender would amount to an abuse of process, place them in double jeopardy, or otherwise violate the guarantees in the Charter. This includes concerns about the impact of a potential sentence on the person sought or concerns about the appropriate forum for prosecution: see Mellino, at para. 37; Logan, at para. 31.

[57] If the Minister orders the surrender of the person sought, this decision may be the subject of an application for judicial review in the Court of Appeal. The discretion at the heart of any such decision to surrender will attract a high degree of deference on such a judicial review application. As the Supreme Court of Canada noted in Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 41, the Minister has the expertise and the obligation to ensure that Canada complies with its international commitments and is in the best position to determine whether the factors weigh in favour of or against extradition. However, much less deference is due to the Minister in assessing the constitutional rights of the person sought: see Kwok, at paras. 93-94; Stewart v. Canada (Minister of Justice) (1998), 131 C.C.C. (3d) 423 (B.C.C.A.), at paras. 17-18.

ii. Request for Disclosure

[58] The applicant seeks the same disclosure that was previously denied, so that he can create an evidentiary record to support his eventual submissions to the Minister under s. 43(1) of the Extradition Act. He states that obtaining the hard drive would assist him in demonstrating to the Minister that his prosecution should unfold domestically.

[59] The Minister has the information necessary, and the discretion, to determine which state is in the best position to prosecute him by weighing the non-exhaustive factors outlined in Cotroni. The Minister has the discretion to consider a variety of factors, including those involving international relations. The court should not intrude on the Minister’s role to make determinations involving choice of jurisdictions, if it exists.

[60] Evidence dealing with an alleged s. 6 breach of an individual’s mobility rights is irrelevant and inadmissible at a committal hearing. However, the Supreme Court of Canada left open the possibility of an exceptional and limited discretion on the part of the extradition judge to hear evidence related to an alleged s. 6 Charter violation without pronouncing on it. Whether to order disclosure now is entirely within this court’s discretion. Since the committal court cannot decide the merits of the alleged violation of s. 6 mobility rights, the discretion to order disclosure should only be exercised when it is efficient and expedient to do so: see Kwok at para. 6.

[61] Where issues relevant to committal are intertwined with the factual basis upon which the s. 6 challenge would be based, or when the same witnesses can be heard on both issues, it would be efficient and expedient for the extradition judge to exercise their discretion to order disclosure for the purpose of building a record for the Minister. There should be some overlap between issues relevant to the committal hearing and the s. 6 challenge. Exercise of this limited discretion requires there to be both a nexus and an air of reality to the Charter claim. Building a case for another purpose is not consistent with the nature of the extradition hearing, which is designed to provide a summary and expeditious determination as to whether there is sufficient evidence to commit the fugitive for surrender: see Kwok at para. 74.

[62] In Kwok, the Supreme Court of Canada held that there was no reason for the court to have allowed Kwok’s disclosure request on the s. 6 issue because it was for a purpose unrelated to the committal hearing. The new disclosure application would require the court to examine whether there is an air of reality to the Charter allegations and whether disclosure is necessary.

[63] Extradition is meant to be an expeditious process by which Canada surrenders persons sought to its partner nations in prompt compliance with its international obligations. It is primarily a function of the executive branch of government and a product of international agreements between states. The hearing is not a trial, nor should it be allowed to become a trial, as though it were a domestic criminal proceeding: see Germany v. Schreiber, [2000] O.J. No. 2618 (S.C.), at para. 57.

[64] The applicant has not established that ordering further disclosure of evidence at the committal stage would be an expeditious or efficient endeavor to further the proceedings. There is no overlap between the issues relevant to committal and the Minister’s function. Mr. Jones’ submissions to the Minister regarding a breach of his s. 6 Charter rights is unrelated to the committal hearing. Embarking on a fresh application for disclosure for the purpose of building a record for the Minister would require this court to determine whether there is an air of reality to the applicant’s Charter allegations. The request for disclosure would only prolong the extradition hearing. This would not be in keeping with the expeditious nature of the committal hearing since the request is not relevant to committal.

[65] Therefore, the application for disclosure to build a record for the Minister is dismissed.

IV. CONCLUSION

[66] For all of these reasons, the application is dismissed.

Braid, J.

Released: March 22, 2022

COURT FILE NO.: CR-21-388-00MO DATE : 2022-03-22

ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF THE EXTRADITION ACT , S.C. 1999, c. 18, AS AMENDED

BETWEEN: THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Requesting State – and – KYLE JONES Person Sought/Applicant

Ruling on MOTIONs RE: ABUSE OF PROCESS & FOR PRODUCTION OF DISCLOSURE TO BUILD RECORD FOR THE MINISTER

Braid, J.

Released: March 22, 2022