COURT FILE NO.: CR-23-9/101-00MO

DATE: 2024-09-11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA

Respondent on Motion

– and –

NUWAN WICKRAMASINGHE

Applicant on Motion

Adrienne Rice, for the Attorney General of Canada

Michelle Psutka, for the Applicant on Motion

HEARD: June 20 and 27, 2024

REASONS ON ABUSE OF PROCESS APPLICATION

schabas J.

Overview

[1] The United States of America, represented by the Attorney General of Canada (“AGC”), seeks to extradite the Applicant, Nuwan Wickramasinghe, in order to stand trial in South Dakota on charges equivalent to the Canadian offence of child luring in relation to an American complainant, K.M.. The extradition request followed a lengthy investigation and prosecution of the Applicant in Ontario. Charges were laid in April and May, 2019 and in March 2020, and were resolved in the Ontario Court of Justice with a guilty plea and sentencing for child luring and child pornography offences in July 2022. The Applicant is currently serving a 1,455-day (approximately four-year) sentence and is now on day parole.

[2] The Applicant submits that these extradition proceedings are an abuse of process and should be stayed. I agree with the Applicant.

[3] In brief, I conclude that over the course of the three-year investigation and prosecution of the Applicant in Ontario, the provincial Crown infringed sections 7 and 8 of the Canadian Charter of Rights and Freedoms. The provincial Crown failed to disclose information regarding the ongoing interactions between Canadian and U.S. law enforcement, concealing knowledge of the continuing investigation in the United States while negotiating a resolution to charges in Ontario. This also included sharing the Applicant’s entire computer hard drive, which had been seized in Ontario pursuant to a search warrant to obtain evidence of offences in Canada, with the Americans without limitation and without disclosing this to the Applicant. As a result, the Applicant was unaware of information in the possession of the provincial Crown regarding his jeopardy in the United States which was relevant to his decision to plead guilty to offences in Ontario. This also meant that the Applicant pleaded guilty without a full appreciation of the nature and legally relevant collateral consequences of doing so.

[4] The actions of the provincial Crown in adding a charge relating to the child pornography found on the Applicant’s hard drive in March 2020, which included material relating to K.M., but not charging the Applicant with offences relating to K.M. specifically, even though her identity and other facts were known to the Crown but not disclosed to the Applicant, prejudiced the Applicant. It left him believing he was resolving all matters based on full disclosure from the Crown, when in fact he remained liable to be extradited to the United States to face charges specific to K.M., where he faces a minimum sentence of fifteen years for child luring. This is more than the maximum sentence possible for the similar offence in Canada. The AGC (or federal Crown) and the provincial Crown also failed to inquire into or address the breaches of the Applicant’s rights in the domestic proceeding, or to consider resolving the matter by laying an additional charge involving K.M. in Ontario, to which the Applicant has offered to plead guilty and serve an additional sentence.

[5] Accordingly, as I explain in the detailed reasons which follow, the cumulative and ongoing conduct of the Canadian police and Crowns[^1] violates the community’s sense of fair play and decency and amounts to an abuse of process.

[6] I also conclude that this is one of those “clearest of cases” in which a stay of proceedings should be ordered. In my view the prejudice caused to the Applicant and to the integrity of the administration of justice will be perpetuated by the continuation of these proceedings. No lesser alternative remedy is available to the Court. Further, in my view, in the circumstances of this case in which the Applicant has already been prosecuted for related offences, the societal interest in having a final decision on the merits is attenuated and outweighed by the need to preserve the integrity of the justice system by denouncing the conduct through a stay of proceedings.

Background

[7] On April 18, 2019, the Applicant was charged by the Ontario Provincial Police (“OPP”) with child luring and related offences relating to an Ontario complainant, M.W., for offences committed in March and April 2019. M.W. was 14 years-old at the time. A search warrant was then obtained and executed at Mr. Wickramasinghe’s home on April 25, 2019. The grounds for the warrant were largely based on the allegations involving M.W., but there was reference to the fact that the Applicant had communicated with other minor females. The warrant authorized the seizure of electronic devices, including the Applicant’s laptop computer. It permitted the examination and analysis of the Applicant's devices because it was believed this would afford evidence of offences involving M.W. in relation to communications, a timeline of the Applicant's activity, ownership details, multimedia content, passwords, and device settings. The warrant authorized a search of the Applicant's devices for specific social media usernames and phone numbers for the Applicant and M.W.

[8] On May 24, 2019, additional child luring charges were laid against Mr. Wickramasinghe relating to alleged offences against another Ontario complainant, E.B., a 15-year-old girl Mr. Wickramasinghe had contacted on the internet through Instagram between May 2018 and March 2019.

[9] A review of the contents of the laptop by the OPP disclosed, among other things, photos and video files created in 2015 of an unknown young female engaging in sexual acts. As the girl was wearing clothing that had the logo of a sports club based in South Dakota, the OPP sent “sanitized” screen shots to the United States Homeland Security Investigations (“HSI”) at the United States Consulate in Toronto on October 11, 2019, to see if the girl could be identified.

[10] The screen shots were immediately forwarded to law enforcement agents in South Dakota with the request that they identify the girl depicted in the screen shots. Within a few days the girl was identified as K.M. The OPP sent additional information to HSI between October 11 and October 16 about the K.M. images. K.M. was interviewed in South Dakota on October 16, 2019. She stated that in 2015 she had been lured by Mr. Wickramasinghe into sending him sexually explicit photos and, later, engaging in sexual acts for him while on Skype – an internet platform that allows people to see and hear each other in real time on their computers. This continued until 2016. K.M. was 14 and 15 years-old at the time. She was 18 when she was interviewed in 2019. Mr. Wickramasinghe initially told K.M. that he was 19, but eventually disclosed he was over 30 years-old, which led K.M. to break contact with him.

[11] On March 25, 2020, child pornography charges were added to the charges against Mr. Wickramasinghe in Ontario. They related to the contents of his computer hard drive, which included the images of K.M., with an offence date of April 25, 2019, i.e., the date the Applicant’s laptop computer and other devices were seized.

[12] According to the Record of the Case (“ROC”) relied on by the United States in support of the Applicant’s extradition, on August 24, 2020 a forensic examiner for the South Dakota Division of Criminal Investigation received a copy of Mr. Wickramasinghe’s hard drive. There is no evidence that the hard drive was sent with any caveats or limitations as to what could be reviewed by the American authorities, nor is there any explanation why the hard drive was shared by the OPP.

[13] The forensic examiner in South Dakota is reported to have discovered images and data relating to K.M. on October 5, 2020, which had already been discovered by the OPP.

[14] Seventeen months later, on March 4, 2022, the Applicant pleaded guilty in the Ontario Court of Justice in Barrie 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 Applicant’s devices seized pursuant to the search warrant, which included the files relating to K.M.

[15] On April 19, 2022, the American agents sent photos discovered during their review of the hard drive to the OPP. The sharing of information, photos and the hard drive were said to have been “done on a police-to-police basis.”

[16] On July 20, 2022, the Applicant was sentenced to 1,455 days (about four years) in prison.

[17] Although the domestic proceedings did not conclude until July 20, 2022, there was only one reference to contact with American authorities in what had been disclosed to Mr. Wickramasinghe in Ontario prior to his guilty plea and sentencing.[^2] This was in a July 30, 2019 Supplementary Occurrence Report which summarized evidence of communications with M.W. found on the Applicant's devices to that point. It stated:

Device analysis still ongoing ...

The accused further took a screenshot of his Snapchat contacts identifying that he had also further been communicating with 2 other females. ID of females and content of communications not known at this time. CSEU has reviewed the messages, will be contacting Homeland Security to get account and subscriber details for the females to identify age and relationship to accused.

D/C McGinnis attended court on 30 July 2019, the accused [sic] next court appearance. The Crown of [sic] the information and pending devices and CFS analysis, potential for further charges. [Emphasis added.]

[18] On this motion, Mr. Wickramasinghe’s trial counsel has provided sworn evidence that he understood the Supplementary Occurrence Report to mean that “if any further offences were discovered in analyzing the Applicant’s devices, further charges would be laid domestically, and I would receive disclosure relating to those further charges.” Indeed, he states, “that is what occurred with the additional child pornography charges laid on March 25, 2020.”

[19] Mr. Wickramasinghe’s trial counsel also states that if he had received disclosure that an American victim had been identified from the analysis of the devices, he may not have advised the Applicant to plead guilty:

Had I known in the course of assisting the Applicant with his domestic matter that there was a serious possibility of charges in the United States, this would have played a significant role in my advice to the Applicant with respect to pleading guilty vis-à-vis the domestic complainants. I may well have advised the Applicant to exercise his right to a trial and to put the Crown to its burden, notwithstanding the apparent strength of the Crown's case, given the adverse impacts a conviction for similar conduct would likely have on an American trial and sentencing proceedings. Moreover, I certainly would have explored whether a global domestic resolution was possible for all alleged luring offences prior to the extradition proceedings being initiated.

[20] On January 26, 2024, the Parole Board of Canada granted Mr. Wickramasinghe day parole. However, prior to that date, on November 3, 2023, the Minister of Justice received the ROC from the United States and, on the same day, issued an Authority to Proceed ("ATP") under s. 15 of the Extradition Act, S.C. 1999, c. 18 (the "Act").

[21] Under U.S. law, the minimum sentence for child luring is 15 years in prison – a sentence greater than the maximum for the similar offence in Canada.

[22] In light of the commencement of this extradition proceeding, Mr. Wickramasinghe was not released on parole and had to seek bail in this Court. That application came before Code J. on February 26 and April 25, 2024. On both occasions Justice Code urged the Crown to resolve the matter. He observed that Canadian courts have jurisdiction to prosecute the offence regarding K.M. and that perhaps the matter could be resolved by a guilty plea and adding on a consecutive sentence to the sentence the Applicant was already serving. Code J. noted the “very, very, very serious backlog of very very serious cases” in this Court, and the responsibility of lawyers to try to resolve cases in order to ease the backlog crisis.

[23] When Mr. Wickramasinghe was released, on consent, on April 25, 2024, Justice Code noted that this case is unusual because the offences for which the Applicant is sought could be prosecuted in Canada, and stated:

... it's also doubly unusual, because you've got an accused who is already serving a sentence in Canada for other offences, very similar offences that were prosecuted in Canada. And by an exercise of prosecutorial discretion, it was decided not to include this count in the, the original Information that charged Mr. Wickramasinghe here in Canada.

[24] Code J. identified the “sophisticated” Charter issues that are now raised on this application. He stated that it was “frankly irresponsible” of the Crown to use limited court resources if the matter could be resolved domestically. He urged the Crown to “exercise its discretion responsibly in relation to how it uses judicial resources in this city, in this crisis right now.” In response to the Crown’s comment that there is a diplomatic component to extradition proceedings, Justice Code observed that this was only because Mr. Wickramasinghe was not charged domestically for the offences involving K.M.. As Code J. stated:

... it only has that diplomatic component, because you have allowed it to reach that stage as a matter of prosecutorial discretion. A decision was made not to include this count in the indictment in Canada. And when the Libman doctrine clearly permitted you to lay that charge here in Canada.

You've, you've set up the diplomatic component, the nation-to-nation diplomatic aspect of it and all this Ministerial discretion. I'm talking about prosecutorial discretion that existed at, at, at a certain point. And I'm sure that's what Ms. Psutka's abuse of process, or [indiscernible] to be all about.

[25] Following Mr. Wickramasinghe’s release on bail, his counsel wrote to the AGC on May 9, 2024. Her letter points out that the U.S. charges involving K.M. arise from facts very similar to those to which the Applicant pleaded guilty in 2022, and were discovered “pursuant to the same OPP investigation.” However, she noted that apparently the American prosecutor is “unwilling to enter into any plea negotiations until Wickramasinghe is in South Dakota.”

[26] In her letter of May 9, 2024, counsel for Mr. Wickramasinghe indicated that the Applicant was willing to plead guilty to offences related to K.M. Counsel noted that an Information could readily be placed before an Ontario court and the matter disposed of before this two-day Charter motion would be heard and “before any committal hearing and Ministerial submissions under ss. 29 and 43 of the Extradition Act, S.C. 1999, c. 18, respectively, take place.” The guilty plea would bring an end to the extradition proceedings.

[27] On or about May 21, 2024, the Applicant’s Application Record and Factum were delivered.

[28] Counsel for Mr. Wickramasinghe followed up with the AGC on May 28, 2024, seeking a response to her letter of May 9, 2024.

[29] However, it was not until June 5, 2024, less than two weeks before this application was to be heard, that counsel for the AGC responded. He stated that the proposed resolution “is beyond the authority of the AGC, who represents the United States of America during the judicial phase of the extradition process, and ultra vires the committal hearing.” Nevertheless, counsel for the AGC advised that they had shared the request with the Ontario Ministry of the Attorney General (“MAG”) which “has the jurisdiction to consider a domestic prosecution.” Counsel also took the position that “any issues that relate to assessing the viability of a Canadian prosecution fall within the exclusive purview of the Minister of Justice Canada during the surrender phase of the extradition process.”

[30] Despite the fact that two days had been set aside for this application, on June 20 and 21, 2024, AGC counsel suggested in his letter of June 5, 2024 that the application be adjourned to afford MAG time to review the request and engage in any discussions. The AGC also said that counsel assigned to the matter would be unavailable and that they needed more time to consult with the United States to prepare a response to the Charter application.

[31] However, MAG clearly did not need time to consider the matter, as the following day MAG counsel in Barrie responded to the Applicant’s counsel’s inquiry, writing in an email on June 6, 2024, that it would not pursue a domestic resolution of the matter as contemplated by Justice Code. MAG counsel stated that she did “not see the point in a further discussion.”

[32] Further, despite claiming to need more time, the AGC filed its responding material on or about June 7, 2024, which consisted of its Factum and the ROC. Accordingly, this application proceeded before me on June 20 and June 27, 2024.[^3] No concerns were raised that the AGC had not had sufficient time to properly respond to the application.

Issues

[33] This application raises the following issues:

(a) Whether the court has jurisdiction to consider abuse of process and grant the remedy of a stay of proceedings;

(b) If the court has jurisdiction, whether the proceedings are an abuse of process, which requires consideration of the following questions:

(i) whether the provincial Crown breached its disclosure obligations under s. 7 of the Charter and the principles arising from R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, and subsequent cases by failing to disclose its interactions with the United States;

(ii) whether the Applicant’s s. 8 Charter right to privacy was breached when his computer hard drive was turned over to HSI without limitations on its use and when evidence about K.M. had already been obtained;

(iii) whether the exercise of prosecutorial discretion, in deciding not to charge the Applicant with offences relating to K.M., thereby leaving him vulnerable to extradition without his knowledge, violated s. 7 of the Charter; and

(iv) whether the Crowns’ failure to inquire into the apparent breach of the Applicant’s Charter rights and failure to consider a domestic resolution constitutes a violation of s. 7 of the Charter; and

(c) Whether the conduct of the Crowns constitutes an abuse of process justifying the extraordinary remedy of a stay of proceedings under s. 24(1) of the Charter.

Jurisdiction to consider abuse of process

[34] Extradition is meant to be an expeditious process to facilitate prompt compliance with Canada's international obligations to extradition partners. The process is governed by the Extradition Act, which codifies Canada's obligations respecting the surrender of fugitives who are alleged to have committed crimes in other countries.

[35] The extradition process is commenced when the Minister, after receiving an extradition request from an extradition partner, decides whether to issue an ATP to seek committal for extradition: Extradition Act, s. 15. As noted, that occurred here, when the United States submitted its ROC to the Minister of Justice and Attorney General of Canada, who then issued the ATP on November 3, 2023.

[36] The next step is the judicial phase of the process. An extradition judge – in Ontario, a Superior Court Justice – holds a hearing to determine whether to commit the person sought to stand trial in the requesting state. Pursuant to s. 29(1)(a) of the Extradition Act, the judge shall order committal of the person sought to await surrender if “there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the [ATP].” The test is the same as that for committing an accused to stand trial after a preliminary inquiry: “whether or not there is any evidence upon which a reasonable jury proper­ly instructed could return a verdict of guilty”: United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 SCR 1067 at p. 1080. Or, as put more recently in United States of America v. Leonard, 2012 ONCA 622, 112 O.R. (3d) 496, at para. 31: “was there available and reliable evidence upon which a reasonable jury, properly instructed, could convict a sought person for the corresponding Canadian offence listed in the Authorization to Proceed.” If the test is not met, the person shall be discharged: s. 29(3).

[37] Following a committal for trial, the extradition process moves to the surrender phase. The Minister must make the final decision whether the person sought should be surrendered to the foreign state, and whether any conditions should be attached to the surrender. The Act sets out circumstances in which the Minister shall, or may, refuse to surrender an individual, including in circumstances where the Minister “is satisfied that ... the surrender would be unjust or oppressive having regard to all the relevant circumstances”: s. 44(1)(a). The Minister’s decision must comply with the Charter and is subject to judicial review in Ontario by the Ontario Court of Appeal: s. 57. However, as pointed out in United States of America v. Khadr, 2011 ONCA 358, 106 O.R. (3d) 449, at para. 39, when reviewing the Minister’s decision, “curial deference becomes significant.”

[38] This case concerns the second step – the judicial phase. The extradition judge’s role is limited. Like a judge at a preliminary inquiry, the extradition judge is to simply assess the evidence and determine whether there is admissible evidence of conduct which, had it occurred in Canada, would justify committal for trial of the person sought for the alleged offence. If so, the judge must commit the person to await surrender.

[39] However, unlike a judge at a preliminary inquiry, an extradition judge has jurisdiction to consider Charter issues at the committal hearing. Section 25 of the Act states:

For the purposes of the Constitution Act, 1982, a judge has, with respect to the functions that the judge is required to perform in applying this Act, the same competence that that judge possesses by virtue of being a superior court judge.

[40] This jurisdiction is not open-ended; it must respect the division of responsibilities between the Minister and the court in the process. In United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 85, the Supreme Court stated that “the extradition judge [is empowered] to grant remedies for Charter violations, including, where appropriate, a stay of proceedings, but only insofar as the Charter breaches pertain directly to the circumscribed issues relevant at the committal stage of the extradition process.” Some Charter issues, such as the s. 6 right to remain in Canada, and the s. 12 right not to be subjected to cruel and unusual punishment, arise only at the surrender stage, for consideration by the Minister, and are not to be considered by the extradition judge.

[41] The extradition judge, however, must ensure that any committal order is “the product of a fair judicial process” and is not an abuse of process – a concept incorporated into s. 7 of the Charter: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 73. As stated in United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, at para. 34, “[s]ection 7 permeates the entire extradition process” including the committal hearing. Even aside from the Charter, an extradition judge, as a Superior Court Justice, has a residual power to stay proceedings in order to control the integrity of the Court and to remedy conduct that could amount to an abuse of process or a breach of the principles of fundamental justice: Khadr at para. 50.

[42] The Crown on this application submits that there must be “a nexus between the conduct alleged to be an abuse of process and the committal hearing itself”, citing United States v. Whyte, 2016 ONCA 624, 352 O.A.C. 45, at para. 44, Khadr, at para. 45, and United States v. Lane, 2014 ONCA 506, 121 O.R. (3d) 721, at para. 44. The Court is not to simply find that committal would be unfair because, for example, an individual would be subject to a harsh punishment or an unfair process in the requesting state or because, as in Lane, the individual sought to raise issue estoppel as a bar to proceeding. Those issues may be considered by the Minister at the surrender stage.

[43] In this case, the Crown submits there is no nexus between the alleged abusive conduct and the committal hearing. The Crown raises several arguments in support of its position.

[44] First, in response to this application the Crown has disavowed any reliance on the portions of the ROC that stem from the sharing of the hard drive with U.S. authorities. As the Crown puts it, that evidence is “off the table” and therefore no nexus exists between any Charter breach arising from the sharing of the hard drive and the evidence to be considered at the committal hearing - which will now only be evidence from the OPP of its investigation up to October 2019 and from the U.S. investigation in October 2019. This does not mean that the Applicant’s s. 8 Charter rights may not be considered by the Minister at the surrender stage, the Crown says, but that any potential breach of s. 8 is “off the table” before me.

[45] Second, the allegation of a breach of the Crown’s Stinchcombe disclosure obligations and its exercise of prosecutorial discretion in deciding which charges Mr. Wickramasinghe would face in Ontario, arise from the provincial Crown’s conduct in the concluded domestic prosecution which, it is argued, has no “nexus” to this proceeding and is not an issue at the committal hearing. In any event, the Crown says, the Applicant “has no right to a global resolution.”

[46] Third, relying on United States of America v. Cotroni; United States of America v. El Zein, 1989 CanLII 106 (SCC), [1989] 1 SCR 1469, the Crown submits that the decision whether to prosecute Mr. Wickramasinghe for offences involving K.M. in Canada or to leave it to the Americans, is a matter for the Minister, not the Court. And fourth, the Crown submits that any consideration of the lengthy minimum sentence that the Applicant may receive in the United States is for the Minister at the surrender stage, not for the Court at the committal hearing.

[47] I do not accept the Crown’s submissions that there is no “nexus” between the abusive conduct and this committal hearing, or that I cannot consider the doctrine of abuse of process in this case.

[48] The concept of abuse of process is broad, and not limited to evidence sought to be adduced or to procedural fairness. As Dubin J.A. stated in R. v. Young (1984), 1984 CanLII 2145 (ON CA), 46 O.R. (2d) 520 (C.A.) at p. 551:

[T]here is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings.

[49] This statement was explicitly adopted by the Supreme Court in R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, at p. 135. Later, in O’Connor in 1995, the Court stated at para. 73:

This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.

[50] As Sharpe J.A. discussed in Khadr – an extradition case - at paras. 31 and 32, “the residual category extends to cases where the misconduct does not produce procedural unfairness.” He observed that this “residual power to stay proceedings that do not produce procedural unfairness is not focused on protecting the rights of the individual litigant. Rather, it is aimed at vindicating the court's integrity and the public's confidence in the legal process in the face of improper state conduct.”

[51] Similarly, in R. v. Larosa, (2002), 2002 CanLII 45027 (ON CA), 163 O.A.C. 108 (C.A.) at paras. 52 and 53, Doherty J.A. stated:

…an extradition judge has the authority to stay proceedings under s. 25 of the Extradition Act or under the common law abuse of process doctrine in two related but somewhat different situations. He or she may stay the proceedings if the actual conduct of the committal proceedings produces unfairness which reaches the level of a breach of s. 7 or an abuse of process. Unfairness is considered in the context of the purpose of the committal hearing, which is to determine whether a questioned state has established a prima facie case. The extradition judge may also stay committal proceedings if, in the circumstances, proceeding with committal proceedings would amount to an abuse of process or a breach of the principles of fundamental justice. Cobb and Shulman are examples of situations in which proceeding with a committal hearing amounted to an abuse of process and a breach of s. 7 no matter how fairly that proceeding might be conducted. [Emphasis added.]

[52] In Khadr, Sharpe J.A. addressed the argument that the Minister’s power to consider Charter issues at the surrender stage limits this Court’s jurisdiction to use the residual power to grant a stay. That proposition was soundly rejected as being “wrong in law.” Sharpe J.A. observed that this was addressed by the Supreme Court in Cobb, Kwok and United States of America v. Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616. While some issues, such as the application of ss. 6 and 12 of the Charter might only arise at the surrender stage, “issues which by their very nature pertain to the committal stage -- including the court's common law power to stay proceedings on grounds of abuse of process in order to protect the court's integrity -- fall within the jurisdiction of the extradition judge, not the Minister”: Khadr at para. 40. Or, as Arbour J. put it in Cobb at para. 44, “the Minister is not the guardian of the integrity of the courts”; rather, “it is for the courts themselves to guard and preserve their integrity.”

[53] Courts have repeatedly found that misconduct by a requesting state can form a basis for finding abuse of process even when that conduct occurred in other proceedings and had no impact on the procedural fairness of the extradition hearing (e.g., Cobb, Khadr, Shulman). The same scrutiny applies to domestic government conduct which might threaten the court’s integrity because it amounts to an abuse of process or breach of fundamental justice.

[54] Here, the conduct of the Crowns in court proceedings - both before the extradition process was commenced and during it - is in issue. The AGC’s suggestion that it is the Minister’s role at the end of the process to consider the conduct of the Crowns, whether it be the provincial Crown or those acting on the Minister’s behalf, cannot be accepted. It is one thing for the Minister to consider the impact of another state’s request to extradite on an individual’s Charter rights, but it is quite another thing for the Minister to consider and judge the conduct of the provincial Crown or those who act on the Minister’s behalf in the courts. To do so would be contrary to the essential role of the courts to robustly apply the Charter to identify and remedy government misconduct.

[55] This role exists even without the Charter. As Dickson C.J.C. observed in Jewitt, at para. 24, adopting a much earlier decision of the House of Lords:

Lord Devlin has expressed the rationale supporting the existence of a judicial discretion to enter a stay of proceedings to control prosecutorial behaviour prejudicial to accused persons in Connelly v. Director of Public Prosecutions, [1964] A.C. 1254 (H.L.) at p. 1354:

Are the courts to rely on the Executive to protect their process from abuse? Have they not themselves an inescapable duty to secure fair treatment for those who come or who are brought before them? To questions of this sort there is only one possible answer. The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused.

[56] Further, the limited scope of judicial review of the Minister’s surrender decision, which requires considerable deference, does not adequately protect the Charter rights affected by the Minister’s conduct in the courts. As Sharpe J.A. stated in Khadr, at para. 50:

Recognizing the extradition judge's residual power to stay proceedings for an abuse of process also coincides with the deeply embedded common law principle that, absent express legislation to the contrary, the courts must not surrender the authority to protect their own integrity to the executive.

[57] The residual power to stay for abuse of process involves scrutinizing government conduct to determine whether it has acted improperly or in breach of the principles of fundamental justice in bringing the case to this stage. Here, the conduct of the police and the Crowns towards Mr. Wickramasinghe – in investigating and prosecuting him in Ontario, in sharing information with the United States as part of that investigation, in obtaining information from the United States, in making decisions as to what it would or would not disclose to the Applicant and what charges the Applicant would face, and in exercising discretion to proceed with this extradition application rather than take steps to resolve the matter in Canada, is all relevant to the abuse of process application and the court’s obligation to protect the integrity of the proceedings now before it.

[58] The disavowal of evidence on the Applicant’s hard drive only means that some evidence is not being relied upon and there is no Charter issue about its admissibility at the committal hearing, as the case relied on by the Crown makes clear: United States of America v. McAmmond, (2005), 2005 CanLII 20 (ON CA), 193 O.A.C. 129 (C.A.) at para. 16. The Applicant does not dispute that the Crown is entitled to disavow the evidence for purposes of the committal, but this does not take it “off the table” for purposes of an abuse of process application. Nor, I observe, has reliance on the shared hard drive been “disavowed” by the United States, for whom the AGC acts in this proceeding, in the potential prosecution of the Applicant in South Dakota.

[59] In any event, in my view the alleged breaches of the Crown’s Stinchcombe obligations, and the exercise of discretion in not charging the Applicant with offences relating to K.M., have a nexus to these proceedings. As the Applicant’s counsel argues, this committal hearing is being held because of decisions by the Crowns taken in the earlier criminal proceeding and in this proceeding. There is, therefore, a nexus between the conduct in question and this hearing. As Code J. pointed out at the bail hearings, it is the Crowns’ exercise of prosecutorial discretion that has led to this situation and this hearing.

[60] As for the minimum sentence, I agree that this is an issue for the Minister’s consideration at the surrender stage, but it is not irrelevant in the abuse of process application as the very severe consequences of a conviction in the United States which may have been facilitated by government conduct in Canada is an important contextual factor in considering the severity of the abusive conduct.

Abuse of process in this case

[61] The Applicant submits that the Crowns have breached his Charter rights and failed to engage in “fair play” in several ways. I address each in turn below.

Stinchcombe obligations and the concealment of information

[62] In Canada, an accused has a constitutional right to disclosure from the Crown and the police of all information in their possession that is not privileged or clearly irrelevant. This principle, which arguably existed at common law, was clearly recognized as an aspect of s. 7 of the Charter in Stinchcombe in 1991. In R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, Charron J., in discussing the duty to disclose the fruits of an investigation, stated at paras. 17-18:

The Crown’s obligation to disclose all relevant information in its possession relating to the investigation against an accused is well established. The duty is triggered upon request and does not require an application to the court. Stinchcombe made clear that 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 (pp. 343-44). The Crown’s obligation survives the trial and, in the appellate context, the scope of relevant information therefore includes any information in respect of which there is a reasonable possibility that it may assist the appellant in prosecuting an appeal.

While the Stinchcombe automatic disclosure obligation is not absolute, it admits of few exceptions. Unless the information is clearly irrelevant, privileged, or its disclosure is otherwise governed by law, the Crown must disclose to the accused all material in its possession. The Crown retains discretion as to the manner and timing of disclosure where the circumstances are such that disclosure in the usual course may result in harm to anyone or prejudice to the public interest. The Crown’s exercise of discretion in fulfilling its obligation to disclose is reviewable by a court. [Emphasis added]

[63] This strong presumption of disclosure is based on the assumption that material in the possession of the police or the Crown about the accused is relevant, and that it will likely be used against the accused. Otherwise, as stated in McNeil at para. 20, “the Crown would not have obtained possession of it.” Accordingly, there is an onus on the Crown to justify the non-disclosure of any material in its possession.

[64] The Supreme Court has stressed that the obligation to disclose all relevant information “requires that the Crown exercise the utmost good faith in determining which information must be disclosed and in providing ongoing disclosure.” As Sopinka J. stated in R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 SCR 727 at para. 21, “departures from this onerous obligation are treated as very serious breaches of professional ethics” which may result in a stay of proceedings

[65] The Supreme Court has also recognized that relevant information is not limited to admissible evidence but includes information that “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 a defence”: R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 SCR 451 [emphasis added]. The Court expressed a similar view in R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244 at para. 22, stating that “where an accused demonstrates a reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence, he has also established the impairment of his Charter right to disclosure.” [underlined emphasis in original, italicized emphasis added]

[66] Of course, one of the most significant decisions an accused must make is how to plead and, in particular, whether to plead guilty. It is well-established that defence counsel have an ethical obligation to advise their clients of “the implications and possible consequences of a guilty plea”, prior to reaching a resolution agreement with the Crown: see, e.g., Rule 5.1-8 of the Law Society of Ontario’s Rules of Professional Conduct. As stated in Proulx & Layton, Ethics and Canadian Criminal Law [Irwin Law 2015], pp. 450-451, defence counsel must advise their client of “any reasonably anticipated collateral consequences of a guilty plea on personal life, civil litigation, criminal charges in a foreign jurisdiction, and deportation proceedings, and whether a plea can be structured so as to minimize or avoid such consequences.” [emphasis added]

[67] Full disclosure is also essential to ensure compliance with s. 606(1.1) of the Criminal Code, which requires the court to be satisfied that an accused person understands the “nature and consequences” of a guilty plea before accepting it. This includes “legally relevant collateral consequences.” In R. v Wong, 2018 SCC 25, [2018] 1 SCR 696 at para. 4, the Supreme Court held that immigration consequences of a guilty plea, such as deportation, are legally relevant and that the accused must be aware of such consequences before entering a guilty plea. At para. 9 of Wong, the Court “endorse[d] a broad approach to evaluating the relevance of a collateral consequence.” This places an obligation on all participants in the process, including the Crown, to ensure that an accused knows the full extent of his jeopardy, including in a foreign jurisdiction.

[68] In this case, the ROC does not specifically state that the OPP or provincial Crown were informed of the results of the American investigation in 2019 and 2020, although it states that the OPP was provided with information in 2022. However, the Americans were, at least initially, investigating at the request of the OPP, and I infer hat the OPP would have been informed in October 2019 of the results of the investigation in South Dakota, including the identification of K.M. This application proceeded on that basis and the AGC filed no responding evidence suggesting that the OPP or the provincial Crown were unaware of the continuing investigation in the United States. Further, as I address later in these Reasons, the OPP are obligated to provide all relevant information to the prosecuting Crown. Accordingly, I have no difficulty concluding that the provincial Crown was aware of the U.S. investigation as it progressed during the course of the proceedings against the Applicant in Ontario.

[69] The provincial Crown’s failure to disclose the international aspects of the investigation, the information received from HSI, and the Applicant’s potential jeopardy in the United States, was a clear breach of the Applicant’s right to disclosure protected by s. 7 of the Charter, a serious breach of professional ethics, and caused prejudice to the Applicant. It prevented the accused from being informed – as the provincial Crown was - of the implications and relevant collateral consequences of pleading guilty. The failure to disclose this information also led to an uninformed plea in violation of s. 606(1.1) of the Criminal Code and therefore prejudiced the integrity of the justice system.

[70] Although, as the Crown points out, there was no “global resolution” promised to the Applicant, nor does he have a right to a “global resolution”, had the Applicant been made aware of the ongoing investigation in the United States, he might have decided not to plead guilty. This may have put pressure on the provincial Crown to agree to a global resolution to avoid a trial and to avoid the impact it might have had on the complainants who would have been required to testify. Whether this would have happened or not is not the point – the point is that the Applicant was denied the right to make a decision about the conduct of his case based on information which might have affected the outcome and led to a global resolution. This was caused by the failure of the provincial Crown to meet its ethical and legal obligations to disclose all relevant information, which included ensuring that the Applicant knew the full extent of his jeopardy.

[71] The breach of the Applicant’s right to disclosure is also particularly serious for several other reasons.

[72] First, the failure to provide disclosure occurred repeatedly over a lengthy period of time and ought to have been addressed on several occasions. The Crown’s obligation to disclosure exists throughout a prosecution, as passages from McNeil and Chaplin, quoted above, make clear.

[73] In the July 30, 2019 Supplementary Occurrence Report, the Applicant was told that the OPP would be contacting HSI. This did not occur until October 2019, when sanitized images were sent to HSI of a specific individual. Other information was also provided to HSI by the OPP. The individual, K.M., was identified within days, yet none of this was disclosed by the provincial Crown to the Applicant at that time, or at any time. Indeed, the Applicant only learned of it when he received the ROC from the AGC in 2024.

[74] In August 2020, the Applicant’s hard drive was sent to the United States authorities. This would have followed further communications with the OPP. This too was not disclosed at that time, or at any time during the domestic prosecution. Two months later, in October 2020, the Americans discovered images and data relating to K.M. which had already been discovered by the OPP.

[75] Eighteen months later, in April 2022, while the proceedings were still continuing against the Applicant in Ontario, the OPP received photos discovered during the American review of the hard drive, showing that the OPP and the provincial Crown continued to be aware of the ongoing investigation in the United States of the Applicant using evidence seized from him by the OPP. This too was never disclosed to the Applicant, who only learned of it when he received the ROC.

[76] Further, while the Crown has “discretion as to the manner and timing of disclosure”, which is reviewable by a court (McNeil, para. 18), in this case the issue is not the “manner and timing” but a complete failure to disclose at all in the domestic proceeding.

[77] Second, what the Applicant was told about the OPP’s contact with the United States was misleading. In that Supplementary Occurrence Report, dated July 30, 2019, the Applicant was informed that the OPP would be seeking the assistance of HSI to identify two further females and that there was the “potential for further charges.” I agree with Applicant’s counsel that this created an expectation that any updates in identifying further complainants or information received from HSI would be disclosed to the Applicant. Indeed, the Applicant would expect such disclosure as it is required by Stinchcombe and the Charter. The AGC’s suggestion on this application that the Applicant ought to have followed up with his own inquiries is inconsistent with the Stinchcombe principle. The onerous disclosure obligation sits squarely on the Crown. When no further disclosure was provided it was reasonable for the Applicant to think that other people had not been identified, that the OPP had obtained no additional information.

[78] Third, the misleading impact of the disclosure, and the failure to provide any updates or further information about the OPP’s continuing contact with HSI, was compounded by the decision to lay additional charges of possession of child pornography against the Applicant in March 2020. The material which formed the basis for those new charges included the images of K.M., whose identity was known to the provincial Crown but not disclosed. This also suggested to the Applicant that K.M. had not been identified.

[79] This is not a case like Logan v. United States of America, 2015 NBCA 60, [2015] N.B.J. No. 226, at para. 28, in which the accused knew he was facing jeopardy in the United States well before he pleaded guilty to related charges in Canada. The Applicant’s case is also distinguishable from Canada (Attorney General) on behalf of the United States of America v. Tyndall, 2021 ABCA 95, [2021] A.J. No. 345, which dealt with a separate U.S. investigation and did not raise any disclosure issues. In France v. Liang, 2007 ONCA 741, 88 O.R. (3d) 12, the accused was aware of proceedings against him in France when he resolved his domestic charges. As the Court of Appeal noted at para. 26, there was “no evidence that Mr. Liang was misled by Canadian or French authorities or that information concerning the convictions in France was withheld from him when he negotiated his plea and sentence agreement in Canada.”

[80] Nor do I see this as “after-the-fact disclosure of informally shared evidence” that did not require disclosure. The case relied on by the Crown, R. v. Viscomi, 2015 ONSC 61, 123 O.R. (3d) 733, dealt with sending evidence to a foreign state without notice; it does not address disclosure obligations in an ongoing domestic prosecution. Similarly, United States of America v. Jones, 2022 ONSC 1711, dealt with a subsequent, separate investigation of different offences in the United States.

[81] In my view, the OPP and the provincial Crown breached the Applicant’s right to disclosure protected by s. 7 of the Charter as recognized in Stinchcombe. The breaches were serious and occurred over a lengthy period of time. The Crown and the police concealed relevant and non-privileged information about their interactions with the United States authorities. Such conduct, or misconduct, prejudiced the Applicant and prejudiced the integrity of the justice system.

Breach of section 8 of the Charter – the sharing of the hard drive

[82] In my view the sharing of the hard drive seized from the Applicant’s computer with the Americans, without any caveats or limitations, and without any judicial oversight, breached the Applicant’s right to be secure against unreasonable search or seizure contained in s. 8 of the Charter.

[83] The search warrant under which the hard drive was seized was obtained to gather evidence in support of three offences listed in Appendix “B”, which were luring and sexual assault relating to M.W. The sharing of the hard drive with HSI had nothing to do with those offences. It was sent to the United States long after all charges had been laid in Ontario and, as I have noted above, without the Applicant’s knowledge.

[84] There is a heightened expectation of privacy in one’s personal computer. As Fish J. stated in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 2-3:

It is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer.

First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you. There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created. The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet - generally by design, but sometimes by accident.

[85] The privacy concerns relating to personal computers, calling for “distinctive treatment” and “specific pre-authorization” and “strong protection”, have been repeatedly stated by the Supreme Court: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 47-48; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 45-48; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at paras. 131-132; R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at paras. 34-35; R. v. Bykovets, 2024 SCC 6, [2024] S.C.J. No. 6, at paras. 1, 10. Further, the privacy interest “does not depend on whether, in the particular case, privacy shelters legal or illegal activity….but whether people generally have a privacy interest” in their personal computers which can reveal personal and core biographical information: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 36.

[86] Here, a warrant was obtained and its validity is not challenged. Rather, what is complained of is the extended use of the fruits of the search by sharing the hard drive, without restrictions or oversight, with foreign police.

[87] It is well-recognized that police may share evidence with other law enforcement agencies. In Wakeling v. United States of America, 2014 SCC 72, [2014] 3 S.C.R. 549, the Supreme Court stated that this applied to sharing evidence with American authorities without bringing an application under the Mutual Legal Assistance in Criminal Matters Act, R.S.C., 1985, c. 30 (4th Supp.) (“MLACMA”). However, the manner in which evidence is shared, such as the extent of sharing, the timing of sharing and the nature of the evidence and whether it raises particular privacy concerns, still raises s. 8 issues: see, e.g. United States v. Hibbert, 2021 ONSC 80 at paras. 88-91. Indeed, even in Wakeling, dealing with the sharing of wiretaps, Moldaver J. for the majority of the Court recognized at para. 75 that in some cases, “[c]aveats on disclosure and information-sharing protocols may be desirable, and they may be relevant to evaluating whether a disclosure ... is carried out reasonably.” See also: R. v. Petrolo, 2021 ONCA 498, 156 O.R. (3d) 321, at para. 37.

[88] Just as a search warrant may be valid but s. 8 is violated because the warrant was executed in an unreasonable manner, so might sharing of information be permitted in principle, but the specific information and use to which it is put may be unreasonable. Concerns of this kind are found in cases of over-seizure involving computers and other digital devices, such as R. v. Little, 2009 CanLII 41212 (Ont. S.C.), in which evidence was excluded in a murder case where police looked at every file on the accused’s hard drive without regard to whether it fell within the parameters of the warrant.

[89] Similarly, in R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at para. 25, the Court of Appeal rejected “the Crown's argument that the warrant authorized the search because a computer is an indivisible object which, like pieces of physical evidence, can be tested and inspected in whatever ways the police deem necessary once lawfully seized under the warrant.” The Court also rejected “the somewhat connected suggestion that because the right to seize a computer would be a hollow one without the ability to examine its contents, it must follow that the police are entitled to examine the entirety of the contents.”

[90] Other cases speak to the same concern about ensuring that searches of computers and other devices are limited to what is necessary: Vu, at para. 62; R. v. Sop, 2014 ONSC 4610 at para.s 143-148; R. v. Nurse and Plummer, 2014 ONSC 5989. As stated in R. v. Ferguson, 2018 BCSC 594, [2018] B.C.J. No. 992, at para. 205, by DeWitt-Van Oosten J. (as she then was):

In my view, R. v. Vu affirms a positive obligation on police, when executing a warrant that grants access to ‘all contents’ of a mobile device, to remain mindful of the scope of their authority; take whatever steps may reasonably be necessary to ensure they do not exceed the allowable parameters of the warrant; to satisfy themselves, when they share the fruits of their search, that they are lawfully entitled to do so; and, they have a responsibility to manage access to the data obtained by them in a manner respectful of the accused's residual privacy interests.

[91] The OPP failed to meet its obligations in this case. The hard drive was seized for a specific purpose – the investigation of child pornography and sex crimes by the Applicant in Canada. Sharing some of the contents of the Applicant’s computer with the United States in 2019 appears to have been for that same purpose, and no issue is taken with that conduct which is been permitted under Wakeling. However, this was not the case in August 2020 when the entire hard drive was sent to the United States.There is no evidence explaining why the hard drive was sent to the United States at that time, or why there were no caveats or restrictions placed on the use of the hard drive by the American authorities.

[92] The OPP took no steps to “manage access to the data obtained by them in a manner respectful of the accused’s residual privacy interests” (Ferguson, para. 205), either by imposing limits on its use, or by requiring that the sharing be authorized under the MLACMA to ensure there was judicial oversight over the sharing of information, including, potentially, conditions limiting its use or limiting the scope of what was sent south of the border. Either of these steps would have gone some distance towards protecting core personal information that is typically found on personal computers and other devices.

[93] In my view, therefore, the sharing of the hard drive by the OPP with HSI was unreasonable and constituted a breach of the Applicant’s rights under s. 8 of the Charter.

Prosecutorial discretion

[94] Police and prosecutors have broad discretion in our criminal justice system. They decide who and what to charge with criminal offences. The prosecutor has the discretion to reconsider those decisions. The Crown’s discretion is often exercised in a manner that favours accused persons, such as deciding not to prosecute when there is no reasonable prospect of conviction, or in dropping more serious charges in exchange for a guilty plea and resolution on less serious charges. Similarly, a prosecutor has discretion, among other things, to determine what evidence to lead at a trial, or not, and the prosecutor has discretion as to what penalty to seek following a guilty plea, or guilty verdict. See, e.g., Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 SCR 372, at paras 43, 46 and 47; R. v. Nixon, 2011 SCC 34 at para. 21.

[95] Prosecutorial discretion is entitled to considerable deference; however, prosecutorial discretion is not unfettered. As the Supreme Court stated in Nixon at paras. 31 and 64, it is “subject to judicial review for abuse of process.”

[96] Our justice system depends on Crown prosecutors exercising this discretion fairly and in the interests of the administration of justice. As Rand J. stated long ago in Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16 at pp. 23-24:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

[97] Rand J.’s comments have been quoted repeatedly for the past seventy years as perhaps the most authoritative statement on the role of the Crown. This passage was quoted in Stinchcombe as a bedrock principle supporting the obligation on the Crown to make full disclosure.

[98] Further, in McNeil the Supreme Court stated, at para. 49:

The Crown is not an ordinary litigant. As a minister of justice, the Crown’s undivided loyalty is to the proper administration of justice. As such, Crown counsel who is put on notice of the existence of relevant information cannot simply disregard the matter.

[99] McNeil, at para. 50, referred with approval to the Ontario Court of Appeal’s decision in R. v. Ahluwalia, (2000), 2000 CanLII 17011 (ON CA), 138 O.A.C. 154 (C.A.), in which Doherty J.A. stated:

The Crown has obligations to the administration of justice that do not burden other litigants. Faced with its own witness’s perjury and the fact that the perjured evidence coincided with the incomplete disclosure that the Crown says it innocently passed to the defence, the Crown was obliged to take all reasonable steps to find out what had happened and to share the results of those inquiries with the defence. In my view, the Crown did not fulfill its obligations to the administration of justice by acknowledging the incomplete disclosure discovered by the defence, and after making limited inquiries, professing neither a responsibility for the incomplete disclosure nor an ability to provide any explanation for it. The Crown owed both the appellant and the court a fuller explanation than it chose to provide. [Emphasis added.]

[100] McNeil also discussed the “corollary duty” on the police “to disclose to the prosecuting Crown all material pertaining to the investigation of an accused”, citing police codes of conduct enacted in many jurisdictions which place the same disclosure obligations on police as exist for the Crown: McNeil, para. 52. Such regulations were enacted following the release in 1993 of the Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, which became known as the “Martin Report” after the chair of committee, the Honourable G. Arthur Martin, Q.C. That Report stated at pp. 167-168, as quoted in McNeil at para. 23:

It is well settled and accepted by all, including the police, that the police, although operating independently of Crown counsel, have a duty to disclose to Crown counsel all relevant information uncovered during the investigation of a crime, including information which assists the accused. . . . As one commentator has observed, “the duty of the police to disclose relevant information about a case, to the Crown, is a duty that existed before [Stinchcombe, supra]”.

[101] In R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631, the Supreme Court noted that the Crown’s discretion must be exercised in a manner that respects an accused’s Charter rights and the public interest, including “some semblance of a cost-benefit analysis”: para. 79. Further, at para. 138 of Jordan, in addressing how the criminal justice system may operate more efficiently, and as a result more fairly, the Court made the following comments regarding the role of the Crown:

For Crown counsel, this means making reasonable and responsible decisions regarding who to prosecute and for what, delivering on their disclosure obligations promptly with the cooperation of police, creating plans for complex prosecutions, and using court time efficiently. It may also require enhanced Crown discretion for resolving individual cases.

[102] Counsel for the Applicant submits that the provincial Crown’s decision not to lay charges respecting K.M., leaving the Applicant vulnerable to this extradition request, constitutes an abuse of process and a violation of s. 7 of the Charter. I agree.

[103] It is reasonable to infer that the OPP officer involved in the case, who shared with and obtained information from HSI, was aware not only of the prospect of U.S. charges but also the mandatory minimum sentence that Mr. Wickramasinghe would face there. In this context, in which no information about what the United States was doing or telling the OPP was disclosed, and in which a decision was made to only add a charge of possession of child pornography and not charges relating to K.M., the prosecution violated principles of fairness and fair play.

[104] In this case, the investigation of the Applicant began in Ontario. There was no parallel investigation, independently initiated by the United States, as was the case, for example, in Logan. Rather, the American investigation was commenced at the request, and for the benefit, of the OPP. As I have found, the OPP knew that K.M. had been identified, which is information that would have been shared with the provincial Crown. But the Applicant was not provided with that information or informed that other information had been obtained from the U.S., or that his computer hard drive had been sent to the United States. Yet, in that context, the prosecution took the step of adding only general charges of child pornography in 2020, and proceeded to negotiate a plea deal involving that charge in 2021 and 2022 when it knew, but did not inform the Applicant, that the Americans were continuing to investigate the Applicant where, if prosecuted and found guilty, he would face a very lengthy jail term.

[105] As Code J. pointed out at the bail hearings, based on the Supreme Court’s decision in Libman v. The Queen, 1985 CanLII 51 (SCC), [1985] 2 S.C.R. 178, Canadian law enforcement and the courts have jurisdiction to address offences that involve actions both inside and outside Canada, as was the case involving K.M. The Applicant could have been charged with luring K.M. in Canada. No explanation has been provided as to why luring charges relating to K.M. were not laid. Had the provincial Crown done so, and the Applicant pleaded guilty to them, extradition would be barred under Article 4(1)(i) of our Treaty on Extradition Between the Government of Canada and the Government of the United States of America, which reads:

(1) Extradition shall not be granted in any of the following circumstances:

(a) When the person whose surrender is sought is being proceeded against, or has been tried and discharged or punished in the territory of the requested State for the offense for which his extradition is requested.

[106] The breach of the Crown’s obligation to be fair has been repeated in 2024, by both the provincial and federal Crowns, who have refused to revisit the matter. When faced with the evidence that the OPP and provincial Crown had breached their disclosure obligations and, as I have found, breached the Applicant’s s. 8 right by sharing the hard drive without restriction, neither Crown denied the actions, or attempted to explain them. To use the understated words of Doherty J.A. in Ahluwalia, “the Crown owed both the appellant and the Court a fuller explanation than it chose to provide.”

[107] The concerns about lack of disclosure and the actions of the provincial Crown in not charging the Applicant with the K.M offences were raised with the federal Crown at the first appearance before Code J. on February 26, 2024. There is no evidence that the AGC considered a domestic resolution between that appearance and the next appearance before Code J. on April 25, 2024. The AGC simply reported that the American prosecutors were unwilling to participate in any negotiations until the Applicant was in South Dakota.

[108] Following the April 25, 2024 appearance, on May 9, 2024 counsel for the Applicant wrote to the federal Crown reminding them of the comments of Code J. and asked that the AGC lay charges involving K.M., to which the Applicant would plead guilty, in order to reach a quick resolution of the matter in Canada. The Crown did not respond right away. In the meantime the Applicant served his Application Record.

[109] The federal Crown’s response, less than two weeks before this application was to be heard, was inadequate. Rather than investigating the allegations and providing a response, as the Applicant (and the Court) might have expected, the federal Crown simply referred the matter to the provincial Crown and requested an adjournment.

[110] The federal Crown’s belated assertion that the proposed resolution was “beyond the authority of the AGC” may or may not be correct. This is not the time to address, nor did I hear argument on, this interesting constitutional issue, but it is at least arguable, based on Canadian National Transportation Ltd. v. Canada (Attorney General), 1983 CanLII 36 (SCC), [1983] 2 S.C.R. 206, and subsequent cases that have addressed delegation of prosecutorial authority, that the AGC’s ability to prosecute is not so limited: R. v. Luz (1991), 1988 CanLII 4529 (ON SC), 5 O.R. (3d) 52 (H.C.); R. v. Bernier, 2022 ONSC 1446 at para. 9; R. v. Root, 2010 ONSC 3872, 214 C.R.R. (2d) 276 at paras. 6, 31; R. v. Smith, 2018 ONSC 1614 at para. 19.

[111] Regardless, as counsel in this proceeding it is unacceptable for the AGC to simply say, effectively, “not my department”, and do nothing. Rather than investigating the matter and providing a “fuller explanation” that would include addressing the concerns about a breach of the Applicant’s disclosure rights and the concerns raised by Code J. about the need to use court resources wisely, the federal Crown simply “passed the buck” to the provincial Crown. The AGC does not appear to have consulted with the provincial Crown as to what might be in the best interests of the administration of justice, including an expeditious resolution which could have been effected by the provincial Crown or, with provincial authorization, the federal Crown.

[112] In also requesting a last-minute adjournment of this application, the federal Crown acted inconsistently with the concerns raised by Justice Code about the strain on judicial resources and the remarks of the Supreme Court in Jordan about the role the Crown must play in making the criminal justice system more efficient. In any event, no motion to adjourn was brought and Crown counsel who appeared on the application did not raise any concerns that the AGC had not had sufficient time to adequately respond.

[113] The response of the provincial Crown is also remarkable. Just one day after the matter was referred to the provincial Crown by the AGC, the suggestion of a resolution by laying charges in Ontario was rejected out of hand, without any discussion or explanation. A breach of the Applicant’s disclosure rights by the provincial Crown was brought to its attention, but rather than investigating, responding or explaining, the provincial Crown simply dismissed the matter.

[114] These actions, by both Crowns, are not in accordance with their obligations. Unlike in Ahluwalia, the Crowns have not even acknowledged the incomplete disclosure and there is no evidence that the Crowns made even “limited inquiries” into the breach of Charter rights. Repeating Doherty J.A., the Crown owed Mr. Wickramasinghe, and the Court, “a fuller explanation than it chose to provide.”

[115] Furthermore, as I have noted, the AGC has not taken the position, or filed any evidence suggesting that the provincial Crown was unaware of the American investigation or of the continuing contact between the United States investigators and the OPP. Indeed, the absence of any explanation or responding evidence on this application strongly supports the inference I have drawn that the provincial Crown was aware of the information obtained from and shared with the United States authorities during the domestic proceedings, and that the Crown made a deliberate decision not to disclose that information. Consequently, I find that the provincial Crown did not act in good faith. It knowingly breached the Applicant’s Charter rights in failing to disclose relevant information to the Applicant, and in that context improperly exercised its discretion to the Applicant’s disadvantage by choosing to charge him with child pornography offences and not charges relating to K.M. specifically.

Remedy

[116] In Khadr, Sharpe J.A. stated at para. 51 that “the jurisdiction to stay proceedings on the grounds of abuse of process lies at the heart of the courts’ integrity and the independence of the judicial process.” However, a stay is a discretionary remedy that should only apply to the “clearest of cases”: Jewitt at para. 25, Young at p. 551.

[117] Khadr noted that the discretion to stay “is ordinarily exercised to ensure procedural fairness”, but it also applies to the residual category which, as stated by L'Heureux-Dubé J. in R. v. O'Connor, at para. 73, addresses "the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process". In such circumstances, a stay of 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”: Khadr, para. 32.

[118] The test for granting a stay for abuse of process is well-established and is the same whether the prejudice is to the accused or to the integrity of the justice system. It will only be appropriate when: (1) the prejudice caused by the abuse in question “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”; (2) no alternative remedy is reasonably capable of redressing that prejudice; and (3) “where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court must balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system against ‘the interest that society has in having a final decision on the merits’”: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 32, citing R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 at paras. 54 and 57.

[119] In one sense, the prejudice in this case is to the integrity of the administration of justice, as the Applicant cannot point to any procedural unfairness he will suffer in the extradition process itself. However, the Applicant was prejudiced by the prosecutorial misconduct and the breach of his Charter rights in the domestic proceeding. He entered a guilty plea without a full understanding of his jeopardy which was known to the Crown. As his trial counsel stated, had he been made aware of that information, the Applicant might have pursued a different path, such as refusing to plead guilty in the absence of a global resolution, which might have caused the Crown to proceed differently, which would have avoided extradition. This committal hearing, therefore, is directly linked to the Crown’s misconduct and the prejudice suffered by the Applicant.

[120] Further, the Crown’s failure to inquire into and explain the breach of the Applicant’s Charter rights, despite the admonition in Ahluwalia to make inquiries and provide an explanation, and the urging of this Court to consider an alternative solution now proposed by the Applicant, neither of which appears to have been considered by the Crowns, has a direct link to the fairness of these committal proceedings. Nor can it be ignored that the a consequence of the Crowns’ actions, if unchecked, is that the Applicant is almost certain to face a very lengthy jail term in the United States.

[121] In my view, these factors support a finding that this is a “clearest of cases” in which permitting the committal proceeding to continue will contravene “fundamental notions of justice” and undermine the integrity of the judicial process. The justice system and the integrity of the Court have been tainted by the Crown’s actions. Yet the Court is now asked to commit the Applicant to stand trial in the United States without an explanation of the breach of the Applicant’s Charter rights or any reconsideration of the Crown’s actions. For the Court to proceed in such circumstances would approve of the Crown’s misconduct and make the Court complicit in it. This cannot be accepted.

[122] Further, although I have inferred bad faith by the Crown in this case, “abuse of process does not require bad faith or an improper motive….It also captures conduct that falls short of bad faith but still risks undermining the integrity or the justice system”: United States v. Cavan, 2015 ONCA 664, 127 O.R. (3d) 430, at para. 52. As stated in Nixon, which dealt with the Crown’s repudiation of a plea agreement, the question is whether “the Crown’s repudiation conduct [is] so unfair or oppressive to Ms. Nixon, or so tainted by bad faith or improper motive, that to allow the Crown to now proceed … would tarnish the integrity of the judicial system?” (para. 59, emphasis added) In Babos, at para. 37, the example was given of repeatedly prosecuting an accused for the same offence after successive jury acquittals. The Crown may not have been acting in bad faith but the conduct could be abusive nonetheless.

[123] Here, even in the absence of bad faith, the cumulative effect of the Crown’s conduct taints these proceedings to the point that a stay is necessary to address the prejudice to the integrity of the courts. As the Supreme Court stated in Babos at para. 73:

Indeed, a judge who is required to balance several instances of misconduct against the societal interest in a trial will almost certainly wish to consider the conduct cumulatively and in its full context. As well, there may be cases where the nature and number of incidents, though individually unworthy of a stay, will require one when considered together.

[124] Unlike Babos, in this case there have been several instances of misconduct and Charter breaches each of which has prejudiced the integrity of the justice system. Furthermore, the actions cannot be seen as independent and unrelated wrongs. The lack of disclosure, the misleading actions of the prosecution and the sharing of the hard drive and the concealment of communications with the United States, followed by the failure of the Crown to even look into its prior action or consider an alternative resolution, are all part of a chain of events which are “offensive to societal notions of fair play and decency” (Babos, para. 35) and “society’s expectations of fairness in the administration of justice” (Nixon, para. 41). Cumulatively, the actions prejudice the integrity of the justice system that “will be manifested, perpetuated or aggravated” by the continuation of these proceedings.

[125] In my view there is no appropriate alternative to issuing a stay of proceedings. This is not a situation where there can be a retrial, or evidence can be excluded, as might be the case in a trial fairness situation. Although the Crown has disavowed reliance on certain evidence at the committal stage, it does not undo the abusive conduct, and the Americans have not disavowed reliance on any evidence in any subsequent trial.

[126] In this case, the lesser remedy, or alternative to a stay, is in the Crown’s hands. It was suggested by Code J. and offered by counsel for the Applicant – to lay an additional charge regarding K.M. to which the Applicant would plead guilty. The record supports the conclusion that the Crown failed to even consider such a resolution. The Court cannot direct the laying of a charge and is left, therefore, in a situation in which it must issue a stay in order to “dissociate the justice system from the impugned state conduct”: Babos at para. 39.

[127] Further, if I had any uncertainty about whether a stay is required based on the first two steps, balancing the need to denounce state misconduct and to preserve the integrity of the justice system against “the interest that society has in having a full decision on the merits”, I would favour a stay.

[128] The cumulative impact of the Crown’s conduct favours a stay. However, I also find that society’s interest in having a full decision on the merits is attenuated in this case. The Applicant has pleaded guilty to other counts of child luring and to the charge of possession of child pornography which includes images of K.M. – a charge which the provincial Crown chose to lay instead of charging him with luring offences relating to K.M. In effect, the Crown has made its choice of how the Applicant’s conduct would be addressed “on the merits” by our justice system. That action of the prosecution, as L’Heureux-Dube J. stated in R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601 at para. 12, “reflects… the interest of the community to see that justice is properly done.” Furthermore, the Applicant acknowledged his criminal conduct and is being punished for it. He continues to serve his sentence, albeit now on parole.

[129] Accordingly, applying the three-part test, this is an exceptional and clear case in which a stay of proceedings should be ordered.

Conclusion

[130] The application is granted. The proceedings shall be stayed.

Paul B. Schabas J.

Released: September 11, 2024

[^1]: When I state “Crowns” in the plural I am referring to both the provincial Crown and the federal Crown (the AGC).

[^2]: One Crown Brief Synopsis stated that the Applicant possessed three images “from a known child sexual abuse image series of a rescued victim from Seattle Washington, USA.” But this had nothing to do with K.M. nor did it appear to arise from any sharing of information in this investigation.

[^3]: I heard submissions on June 20 from counsel for Mr. Wickramasinghe for most of the day. Counsel for the AGC then sought an adjournment due to ill health, which I granted, concluding the matter on June 27, 2024.