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Criminal - Extradition (2). United States v. Wickramasinghe [basics]
In United States v. Wickramasinghe (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown extradition appeal, here brought against the granting of "an application to stay the extradition proceedings against him on the basis that they constituted an abuse of process".
Here the court usefully summarizes the typical extradition process:[24] The Extradition Act facilitates Canada's international obligations to surrender persons so that they will face prosecution, or serve sentences imposed, in another country. The extradition process is rooted in principles of reciprocity, comity, and respect for differences in other jurisdictions: M.M. v. United States of America, 2015 SCC 62, [2015] S.C.R. 973, at para. 15; Canada (Minister of Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170, at para. 51.
[25] The extradition process has three stages:(1) First, upon receiving an extradition request from a foreign state, the Minister decides whether to proceed with the request, and if so, issues the ATP.
(2) Second, if the Minister issues an ATP [SS: 'Authority to Proceed'], an extradition judge determines whether to order committal for extradition. This is the only stage that is judicial.
(3) Third, if the extradition judge orders committal, the case moves back to the Minister to determine whether to “surrender” the individual sought for extradition to the requesting state: Extradition Act, ss. 15(1), 29(1)(a), 29(3), 40; M.M. at paras. 19-26. [26] The functions of the Minister and the extradition judge are distinct. As Watt J. described, “the Minister and the extradition judge occupy two different solitudes”, with neither intruding into the other’s areas of responsibility: Germany (Federal Republic) v. Schreiber, 2000 CarswellOnt 5257 (Ont. Sup. Ct), at para. 74. . United States v. Wickramasinghe [SOR for extradition stay]
In United States v. Wickramasinghe (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown extradition appeal, here brought against the granting of "an application to stay the extradition proceedings against him on the basis that they constituted an abuse of process".
The court considered the appellate SOR for stays, here in an extradition context:[23] A decision to stay a proceeding is discretionary and attracts significant appellate deference. Intervention is not justified unless the appellant can establish that the extradition judge misdirected himself or the decision is so wrong that it amounts to an injustice: R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 117, 118; United States v. Khadr, 2011 ONCA 358, 106 O.R. (3d) 449, at para. 53, leave to appeal refused, [2011] 3 S.C.R. v (note); United States of America v. Talashkova, 2014 ONCA 74, 118 O.R. (3d) 622, at para. 7. . United States v. Wickramasinghe
In United States v. Wickramasinghe (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown extradition appeal, here brought against the granting of "an application to stay the extradition proceedings against him on the basis that they constituted an abuse of process":[1] The United States of America seeks the extradition of the respondent, Mr. Wickramasinghe, to stand trial in South Dakota on the equivalent of child luring charges. The extradition request came after lengthy proceedings in Ontario, in which the respondent pleaded guilty to child luring and child pornography offences.
[2] The respondent brought an application to stay the extradition proceedings against him on the basis that they constituted an abuse of process. He based his abuse of process primarily on the failure by the Ontario Provincial Police (the “OPP”) and the Crown[2] to disclose ongoing communication and information-sharing that the OPP engaged in with authorities in the United States. He claims that this information would have been material to his decision to plead guilty in the Ontario proceedings.
[3] The extradition judge agreed with the respondent. He determined that the conduct of the OPP, the Crown, and the Attorney General of Canada (“AGC”) amounted to an abuse of process and ordered a stay of the extradition proceedings.
[4] The AGC, acting on behalf of the United States of America, appeals from this stay. The Attorney General of Ontario (“AGO”) and the Criminal Lawyers’ Association (“CLA”) were granted intervenor status on the appeal.[3]
[5] In my view, the extradition judge was without jurisdiction to order the stay. Any unfairness in respondent’s decision to plead guilty should have been addressed through an appeal of his conviction on the ground that his guilty plea should be set aside. The issues of concern relating to his extradition were within the purview of the Minister of Justice (the “Minister”) at the surrender stage of the extradition process, not within the circumscribed role of the court at the committal stage.
[6] For the reasons that follow, I would allow the appeal, set aside the stay of proceedings and remit the matter to the Superior Court of Justice for a new extradition hearing. Here the court outlines the distinct roles of the extradition court and the Minister of Justice:[27] Section 29(1)(a) of the Extradition Act exhaustively defines the limited role of the extradition judge at the committal stage. That role is to determine two matters: whether there is evidence admissible under the Extradition Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the ATP; and, whether the person before the court is the person sought by the requesting state: M.M., at paras. 22-23. As described in M.M., at para. 36, this is an “important, but circumscribed and limited screening function”. The extradition hearing is intended to be expeditious and efficient: M.M., at para. 64; United States v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at para. 131.
[28] By contrast, the Minister’s role at the surrender stage is broad, discretionary and essentially political in nature. The Minister must account for Canada’s international obligations and the requirement to act as a responsible member of the international community in responding to the request of an extradition partner: M.M., at para. 25.
[29] The Minister’s discretion at the surrender stage is not, however, unfettered. Pursuant to s. 44-47 of the Extradition Act, the Minister must order surrender only if satisfied that extradition is more appropriate than domestic prosecution, having balanced all factors that the Minister finds relevant in the circumstances: Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3. S.C.R. 609, at paras. 11-14. While the jurisprudence has identified numerous factors guiding the Minister’s discretion, none are individually dispositive, nor do they need to be weighted equally: United States v. Lake, 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 30. Further, the Minister may yield to the interest of the requesting state in prosecuting the individual sought even where prosecution would be unlikely to succeed domestically: Sriskandarajah, at paras. 13-14.
[30] Jurisdiction to consider Charter issues is likewise divided between the Minister and the extradition judge.
[31] An extradition judge’s jurisdiction to consider Charter issues flows from s. 25 of the Extradition Act, which provides jurisdiction to consider Charter issues that “pertain directly to the circumscribed issues relevant at the committal stage of the extradition process”: United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 57. The focus is the committal hearing in Canada and not the eventual trial in the United States: United States v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, at p. 603. There is no “plenary” jurisdiction of a Superior Court judge to adjudicate claims of Charter violations in extradition cases: Logan v. United States of America, 2015 NBCA 60, [2015] N.B.J. No. 226, at para. 17, leave to appeal refused, [2015] S.C.C.A. No. 503.
[32] That being said, through the “residual category” of the abuse of process doctrine, the extradition judge may consider circumstances where the alleged misconduct, while not impacting the procedural fairness of the committal hearing itself, would nevertheless make proceeding with the committal proceedings amount to an abuse of process: Khadr, at para. 50; R. v. Larosa (2002), 2002 CanLII 45027 (ON CA), 166 C.C.C. (3d) 449, at para. 52. However, there must be sufficient “nexus” between the alleged misconduct and the committal hearing to ground a stay of proceedings through the residual category: Khadr, at para. 45; United States of America v. Whyte, 2016 ONCA 624, at para. 36; United States v. Lane, 2014 ONCA 506, 121 O.R. (3d) 721, at para. 45, leave to appeal refused, [2014] S.C.C.A. No. 425; Logan, at para. 18.
[33] A sufficient nexus has been found, for example, where evidence introduced at the committal hearing was obtained through misconduct of the requesting state (Khadr); where the committal hearing itself was a result of misconduct of the requesting state (United States of America v. Tollman (2006), 2006 CanLII 31732 (ON SC), 271 D.L.R. (4th) 578 (Ont. Sup. Ct)); and where threats were made to force a person to abandon the right to a committal hearing (Cobb).
[34] The Minister’s jurisdiction to consider Charter-based claims at the surrender stage is much less constrained. Section 44(1)(a) of the Extradition Act requires the Minister to refuse surrender if it would be unjust or oppressive or where surrender would be contrary to the principles of fundamental justice under s. 7 of the Charter.
[35] Accordingly, the Minister may consider a broad range of possible misconduct. Concerns about the fairness of the eventual trial, potential double jeopardy, and disparities in sentencing regimes are also appropriately addressed by the Minister: United States of America v. Sriskandarajah, 2012 SCC 70 (CanLII), [2012] 3 S.C.R. 609, at para. 12; United States v. Magnifico, 2007 ONCA 535, 159 C.R.R. (2d) 315, at paras. 26-27, 32, leave to appeal refused, [2007] S.C.C.A. No. 452.
c. The extradition judge exceeded his jurisdiction
[36] In addressing the issue of jurisdiction, the extradition judge properly set out the limited scope of his role at the committal stage of the extradition process, including that he could assess the alleged Charter breaches “only in so far as the Charter breaches pertain directly to the circumscribed issues relevant to the committal stage”. He also correctly indicated that it was open to him to consider the abuse of process doctrine, including claims under the residual category. Further, he understood the requirement of a nexus between the conduct alleged to be an abuse of process and the committal hearing itself.
[37] However, respectfully, the extradition judge erred in his application of these principles. Specifically, in my view, the reasons reflect two related difficulties that require this court’s intervention: an overbroad understanding and application of the concept of “nexus” to the committal hearing; and a de facto appropriation of the functions and responsibilities of the Minister at the surrender stage. Although the errors are in effect two sides of the same coin, I address each turn.
i. Nexus and abuse of process
[38] I accept the AGC’s argument that the allegedly abusive conduct of the OPP the Crown, and the AGC in this case does not “pertain directly” to the circumscribed issues relevant at the committal stage. The alleged misconduct is not alleged to have impeded the ability of the extradition judge to determine whether there is admissible evidence of conduct that would justify committal for trial in Canada and whether the person before the court was the person sought: Kwok, at para. 85; Khadr, at para. 37. The previous domestic investigation had “no bearing” on the circumscribed role of the extradition judge mentioned above. See Lane, at para. 44.
[39] A stay of the proceedings therefore depended upon there being a sufficient nexus between the alleged misconduct and the fairness of the extradition proceedings. The extradition judge determined that there was. He stated:[I]n my view, the alleged breaches of the Crown’s Stinchcombe obligations, and the exercise of discretion in not charging the [respondent] with offences relating to K.M., have a nexus to these proceedings. As the [respondent’s] counsel argues, this committal hearing is held because of decisions by the Crowns taken in earlier proceedings and in this proceeding. There is therefore a nexus between the conduct in question and this hearing. As [the bail judge] pointed out at the bail hearings, it is the Crown’s exercise of prosecutorial discretion that has led to this situation and this hearing. [Emphasis added.] [40] The extradition judge took a cumulative view of what he saw as police and Crown impropriety in this case. He found that the conduct of the OPP and the Crown in the prosecution and investigation of the respondent, including their communication with the United States, their allegedly incomplete disclosure to the respondent, and the exercise of prosecutorial discretion to not pursue a domestic resolution, “led to” the extradition proceedings. This causal link constituted a sufficient nexus between the state misconduct and the committal hearing for a finding of abuse of process, in turn requiring stay.
[41] In my view, this stretches the concept of “nexus” to the committal hearing too far and resulted in a result that is so wrong that it amounts to an injustice.
[42] A finding of sufficient “nexus” to grant a stay under the residual category is rarely warranted in the committal context, reserved for exceptional cases involving egregious conduct with overwhelming evidence that the committal proceedings are rendered so unfair that they are contrary to the interests of justice: Logan, at para. 19. I note that in cases where a sufficient nexus has been found, it has been the conduct of the requesting state, not domestic authorities, that has been at issue. While it may be, as the extradition judge stated, that “the same scrutiny applies to domestic conduct which might threaten the court’s integrity”, the impugned conduct must pertain directly to the issues relevant at the committal stage. A close examination of the grounds relied upon by the extradition judge shows that this standard cannot be met on the misconduct alleged in these proceedings.
[43] The failure by the OPP and the Crown to disclose communication and information sharing to the respondent, “leaving him in the dark about what was going on behind the scenes” may well have born on the fairness of the guilty plea in the Ontario proceedings and could arguably have led to a successful appeal to have the Ontario convictions set aside: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696; R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307. But any such failure to disclose had no perceptible impact on the extradition proceeding itself. The fact that the failure to disclose related to dealings with the requesting state had no impact on the way the extradition proceedings were being conducted.
[44] As for the decision not to lay charges involving K.M. in Ontario, that was a matter of prosecutorial discretion to be exercised by the Crown, not the AGC. More importantly, the decision to defer prosecution to an extradition partner is a discretionary matter that did nothing to render the extradition proceedings unfair: United States of America v. Kavaratzis (2006), 2006 CanLII 13237 (ON CA), 208 C.C.C. (3d) 139 (Ont. C.A.), at para. 26, leave to appeal refused: [2006] S.C.C.A. No. 252; United States of America v. Jones, 2022 ONSC 1711, 505 C.R.R. (2d) 140, at paras. 39-42, 44.
[45] This leaves the decision to share the computer hard drive with authorities in the United States without apparent limitation or caveats. Even if wrongful, it is not apparent that the use of the hard drive to extract information relevant to the offences involving K.M. would have been inappropriate. In any event, assuming there is some nexus between this “breach” of the Charter and the development of the record in the case, it is not at all clear that such a transgression, standing alone, would have warranted a stay, even in the mind of the extradition judge.
[46] It is therefore my view that the extradition judge took too broad a view of the nexus requirement, resulting in an injustice. Care must be taken in this regard. Taking an overly expansive approach in identifying a nexus would significantly and impermissibly broaden the role of an extradition judge at the committal stage and the availability of a stay of proceedings under the residual category. In effect, committal hearings would require trial-like inquiries into exercises of prosecutorial discretion and communication between domestic authorities and the requesting state – an outcome expressly disavowed by the Supreme Court on numerous occasions.
[47] Indeed, as the Supreme Court noted in Dynar, at para. 122:[I]t cannot be forgotten that the hearing is intended to be an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canada's international obligations. As La Forest J. stated for the majority in McVey, supra, at p. 551, “extradition proceedings are not trials. They are intended to be expeditious procedures to determine whether a trial should be held”. In fact, in some contexts, a requirement for more “trial-like” procedures at the extradition committal stage may “cripple the operation of the extradition proceedings”. [48] The extradition judge’s expansive application of the concept of nexus would erode the expeditious nature and defined scope of the committal stage in the extradition process. I would not accept such an approach.
ii. The separate functions of the extradition judge and the Minister
[49] While the extradition judge acknowledged his circumscribed role in the committal hearing, in effect, he usurped the Minister’s authority at the surrender stage of the extradition process. Extradition judges must avoid taking an expansive view of their Charter jurisdiction when doing so would tread on Ministerial authority. The extradition judge failed to do so. This alone is sufficient to require that the stay be set aside.
[50] As noted above, at the surrender stage, the Minister must be satisfied that extradition is more appropriate than domestic prosecution and must refuse to surrender where the consequences would be contrary to the principles of fundamental justice under s. 7 of the Charter, or if the surrender would be unjust or oppressive, having regard to all of the circumstances: M.M., at para. 26; Sriskandarajah, at para. 12; Lake, at para. 31.
[51] Therefore, whether this is a case in which extradition should not proceed was an assessment for the Minister to make within the governing statutory framework. Parliament chose to give broad discretionary authority to the Minister at the surrender stage, and the separate functions of the extradition judge and the Minister must be maintained: Kwok, at paras. 32, 57.
[52] The concerns articulated by the extradition judge regarding OPP and Crown conduct were appropriately within the purview of the Minister. The alleged irregularities about disclosure, the sharing of the computer hard drive with authorities in the United States, and the exercise of prosecutorial decision not to charge the respondent domestically, were all matters for the Minister’s consideration at the surrender stage. So too were any alleged Charter violations flowing from this conduct.
[53] As submitted by the AGO, the breadth of the abuse of process doctrine ought not to be understood as collapsing the distinctions between various actors and their unique roles in the extradition process.
[54] The trial judge’s application of the abuse of process doctrine would obscure the distinct roles of the extradition judge and the Minister. In my view, it was an error for the extradition judge to decide a broad abuse of process argument at the committal stage, pre-empting the Minister’s assessment and interfering in the responsibility of the executive: United States of America v. Jones, 2022 ONSC 11, 502 C.R.R. (2d) 106, at para. 30. . United States v. Mann
In United States v. Mann (Ont CA, 2024) the Ontario Court of Appeal dismissed an extradition JR of a surrender order, here where the applicant argued that "the Minister [SS: of Justice] fettered his discretion by adopting the committal judge’s reasons wholesale and also failed to meaningfully consult with the Minister for Immigration, Refugees and Citizenship Canada (IRCC), as required by s. 40(2) of the Extradition Act":[29] It is agreed that the standard of review of the Minister’s decision to order the applicant’s surrender is reviewable on a standard of reasonableness.
[30] The appellant argues that the Minister’s reasons on the private use exception relied exclusively on the committal judge’s reasons, which amounts to an impermissible delegation of discretion. We do not agree that the Minister did so. The Minister reviewed the appellant’s submissions and the record in front of him before agreeing with some of the committal judge’s conclusions. The Minister further noted that he must balance any absence of an equivalent defence in the U.S. against other criteria such as Canada’s treaty obligations. We see no basis to disturb the discretionary balancing engaged in by the Minister.
[31] The appellant further argues that the Minister’s decision was unreasonable because he failed to meaningfully consult with the IRCC, as required by s. 40(2) of the Extradition Act. While the appellant concedes that the Minister of Justice did consult with the IRCC, he argues that this consultation was insufficient because the latter concluded that it would be premature to conduct a risk assessment in relation to the appellant’s potential deportation to India following his extradition to the United States.
[32] We see no merit to this ground of appeal. The Minister of Justice provided the IRCC with relevant information respecting the appellant’s circumstances and the proposed extradition to the U.S. The IRCC subsequently provided the Minister with its assessment, which included information on the potential implications of the extradition proceedings on the appellant’s Canadian immigration status, a risk assessment for the U.S., and potential relief available to the appellant to resist removal from the U.S.
[33] It is true that the IRCC concluded that it would be premature to conduct a risk assessment with respect to the appellant’s potential deportation to India, as such deportation was not an entirely foreseeable consequence of his extradition to the United States. As the IRCC pointed out, even if extradited, the appellant still faced trial in the U.S. and potential incarceration if convicted before any removal to India could be contemplated. The IRCC’s finding of prematurity aligns with the Charter and Canada’s international human rights obligations, which require that a risk assessment be contemporaneous with a refugee claimant’s removal to the country against which they claim protection: Németh v Canada, 2010 SCC 56, [2010] 3 S.C.R. 281, at paras. 50, 103 and 114; Bulaman v. Canada, 2015 QCCA 1473, at paras. 62-69.
[34] The IRCC’s assessment was meaningfully taken into account by the Minister of Justice in his surrender decision. In particular, the Minister relied upon the information provided by the IRCC regarding avenues available to the appellant to challenge his potential removal from the U.S. The Minister made further inquiries with the U.S. Department of Justice about the removal process and the availability of mechanisms throughout to prevent deportation. All this information enabled the Minister to knowledgeably evaluate the appellant’s concerns regarding the possibility of his subsequent deportation to India if he were extradited to the U.S.
[35] The Minister meaningfully consulted with the IRCC, as required by s. 40(2) of the Extradition Act, and his surrender order was reasonable. We therefore dismiss the appellant’s application for judicial review of that order. . United States v. Mann
In United States v. Mann (Ont CA, 2024) the Ontario Court of Appeal dismissed an extradition appeal against a committal order [grounded on a dismissal of a request for disclosure, and a "finding that his conduct would have constituted an offence punishable under s. 163.1 of the Criminal Code" (child pornography)], and a JR of a surrender order.
Here the court considered the committal to trial in Canada issue:[24] .... The committal judge noted that extradition judges have a circumscribed and limited screening function. Their role is to determine whether there is a prima facie case of a Canadian crime having been committed, and not to become embroiled in questions about possible defences or the likelihood of conviction: M. M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at para. 38. ....
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