In a recent Ontario Court of Appeal Decision, Sri Lankan Canadian Action Coalition v. Ontario (Attorney General)1, the court dismissed the appeal, upholding the constitutionality of Ontario legislation titled: the Tamil Genocide Education Week Act, 2021, S.O. 2021, c. 11 (the "TGEWA"). The court engaged in a review of the principles of federalism and though it reached the same conclusion, grounded their decision in an analysis that differed in certain respects from that of the application judge.
Background
The background of this case calls for a review of historical context. As with many countries, Sri Lanka is comprised of different ethnic groups, Sinhalese and Tamil. A majority of Sri Lankans are Sinhalese. Tamils have historically comprised a minority of the population. Some factions of the Tamil minority have sought an independent homeland. The Sri Lankan state has resisted their efforts.
From 1983 to 2009, a civil war occurred between the Sri Lankan state and an organization called the Liberation Tigers of Tamil Eelam ("LTTE"). The people of Sri Lanka suffered greatly; thousands were killed or displaced. Many Sri Lankans fled to Canada and today Ontario is home to one of the largest Tamil diasporas outside of southeast Asia. There is also a significant – although much smaller – Sinhalese community in Canada, including in Ontario.
Some organizations have accused the Sri Lankan state of having committed a "genocide" against the Tamil minority leading up to and during the civil war. Both the lower court and the Court of Appeal were clear to establish that this case is not about whether a Tamil genocide occurred, and noted, to date, the International Court of Justice has not found the Sri Lankan state responsible for genocide.
The TGEWA was introduced as a private member's bill in April 2019. The preamble and the operative provisions are as follows: (1) The seven-day period in each year ending on May 18 is proclaimed as Tamil Genocide Education Week; (2) During that period, all Ontarians are encouraged to educate themselves about, and to maintain their awareness of, the Tamil genocide and other genocides that have occurred in world history.
Sri Lankan government officials expressed displeasure with the TGEWA shortly after its enactment. On October 8, 2021, Sri Lanka's Foreign Minister met with the High Commissioner of Canada to Sri Lanka partly to convey Sri Lanka's opposition to the Act. Later, on February 5, 2022, the Sri Lanka High Commission in Ottawa issued a press release in which it criticized Ontario for "caus[ing] strain in [Sri Lankan] intercommunity relations" with the passage of the TGEWA. Despite this criticism, on May 18, 2022, the House of Commons unanimously adopted a motion "acknowledg[ing] the genocide of Tamils in Sri Lanka and recogniz[ing] May 18 of each year as Tamil Genocide Remembrance Day."
The Applications
The Sri Lankan Canadian Action Coalition and Mr. Neville Hewage each applied for declarations that the TGEWA was constitutionally invalid. They argued the Act was ultra vires Ontario, and alleged the Act has the effect of stigmatizing Sinhalese-Ontarians on the basis of religion and national or ethnic origin, thereby violating their equality rights under section 15 of the Charter. The applicants further argued that the TGEWA infringes the freedom of expression of Sinhalese Ontarians by (i) infringing their freedom to contend that there was no Tamil genocide in public and institutional dialogue; and (ii) infringing their freedom to reveal their Sinhalese ethnic and Buddhist religious backgrounds without fear of threats or intimidation. Mr. Hewage also submitted that the Act violates section 2(b) of the Charter by subjecting Ontarians to "learn[ing] untruth", asserting in his affidavit that the Act is based on false information and false narratives. Their applications were heard together.
The Tamil Canadian Coalition and Tamil Rights Group successfully moved to intervene in the proceeding as parties. The interveners submitted that the applications were premised on a narrow and one-sided version of the history of the conflict in Sri Lanka, and as interveners they could assist by ensuring that a more balanced and fulsome factual record would be before the court on these issues. The interveners continued as interveners on appeal.
Constitutional Framework
Both the application and appeal decision are grounded in principles of federalism. The Court of Appeal decision provides an overview of the division of powers and both decisions provide an outline of the applicable test. Federalism is a "fundamental guiding principle" of our constitutional order; the goal is to reserve to Parliament powers better exercised in relation to the country as a whole, while allocating broad powers to the provinces in order to recognize their diversity. There are two stages to determining whether laws fall within the heads of power assigned to the enacting legislature, and courts apply the pith and substance doctrine to make this determination. First, the court characterizes the law in issue, then on the basis of that characterization, the court classifies the law by reference to the heads of power enumerated in the Constitution Act, 1867.
The Application Decision
The application was heard in June 2022. The application judge dismissed the appellants' applications. Justice Akbarali held that the TGEWA was intra vires Ontario and that it did not breach ss. 2(b) and 15(1) of the Charter. She concluded the dominant characteristic of the law is to educate the public about what the Ontario legislature has concluded is a Tamil genocide. Further, given that her finding that the purpose is educative, Justice Akbarali found that the TGEWA falls squarely within Ontario's jurisdiction under s.93 of the Constitution Act, 1867 to "exclusively make Laws in relation to Education."
On appeal, the position of the appellants was that the dominant purpose of the legislation is to recognize or declare a genocide. The respondent's position remained that the pith and substance of the TGEWA is educational.
The Court of Appeal dismissed the division of powers ground of appeal, however they did so for different reasons than Justice Akbarali. The Court of Appeal concluded that Justice Akbarali mischaracterized the TGEWA by describing its pith and substance as "educative".
The court decided that the TGEWA's dominant purpose is to affirm and commemorate the Tamil-Ontarian community's experience of the Sri Lankan Civil War and thus promote, within Ontario, the values of human rights, diversity and multiculturalism. The court went on to conclude that this purpose constitutes a valid exercise of Ontario's powers over matters of a merely local or private nature in the province under s. 92(16) of the Constitution Act, 1867. The court came to this conclusion based on their evaluation of the intrinsic and extrinsic evidence. Intrinsic evidence refers to the Act's title, preamble, text, structure and any provisions setting out its purpose. Extrinsic evidence includes the Act's legislative history and the legislative debates surrounding its enactment. The court also cautioned against failing to maintain a clear distinction between the characterization and classification stages of the test and describing the pith and substance too generally. The court engaged in a detailed analysis of the preamble and second and third readings of the Act, and ultimately found that the TGEWA represents an act of affirmation towards a local community that has suffered historical marginalization, and any education that comes from it is but a means to this further end.
Both the lower court and the Court of Appeal also rejected the arguments advanced by the appellants that the TGEWA encroaches impermissibly on the federal government's power over foreign affairs, determining that the Act does not purport to establish a Tamil genocide, consistent with international criminal law requirements.
With respect to the Charter claims, Justice Akbarali held that nothing in the TGEWA restricts or limits the appellants' ability to dispute the occurrence of a Tamil genocide. She rejected the appellants' argument that the Act made their expression less effective in any way that could breach s. 2(b). She further noted that the government has no "duty to promote, enhance, or even preserve the effectiveness of anyone's political expression." The Court of Appeal similarly rejected the appellants s. 2(b) claims finding that the Act's text contains no provisions prohibiting or penalizing the form or content of, or access to, the appellant's messaging, and nothing in the legislative debates suggests that the Legislature intended for the Act to be used to prohibit dissent.
Furthermore, the Act was not found to be in breach of s. 15(1); Justice Akbarali held, and the Court of Appeal upheld, that the TGEWA's preamble states that the Sri Lankan government's allegedly genocidal policies were "Sinhala-Buddhist centric", not that Sinhala-Buddhists are, as a racial group, collectively responsible for them. Likewise, claiming that the Sri Lankan state "orchestrated" a genocide does not imply that Sinhala-Buddhists are collectively responsible for "executing" the alleged genocide. The appellants' argument that the TGEWA draws an express racial distinction against Sinhala-Buddhists was rejected. The Court of Appeal also agreed with Justice Akbarali that the TGEWA has no discriminatory impact. The focus of Mr. Hewage's claim – the Act's preamble – creates no rights or liabilities to the legal detriment of Sinhala-Buddhists. The court held that the Act's operative provisions are purely symbolic in that they merely encourage public reflection on a conflict for which the Act holds the Sri Lankan state – not Sinhala-Buddhists as a racial group – responsible.
Takeaways
The Sri Lankan Canadian Action Coalition case helpfully summarizes the fundamental principles of federalism and reinforces the nuances of the analyses required when applying the relevant tests. This case also serves to highlight the complexities of defining and framing provincial powers in today's increasingly diverse and multicultural society and while navigating political and cultural sensitivities.
Footnote
1. Sri Lankan Canadian Action Coalition v. Ontario (Attorney General), 2024 ONCA 657.
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