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Charter - s.15 Discrimination (4). Sri Lankan Canadian Action Coalition v. Ontario (Attorney General)
In Sri Lankan Canadian Action Coalition v. Ontario (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an application (JR?) for a "declaration of constitutional invalidity", dealing with the 'Tamil Genocide Education Week Act, 2021' - what I call a 'heritage/awareness statute'.
Here the court considers the Charter s.15 'discrimination' protection:[10] As for ss. 2(b) and 15 of the Charter, we agree with the application judge that the TGEWA does not infringe the appellants’ free expression and equality rights. The Act does not suppress expression, directly or in its impact. Nor does the Act draw an adverse distinction cognizable under s. 15(1). The TGEWA attributes responsibility to the Sri Lankan state at the time of the civil war, not Sinhala-Buddhists, for what it deems a “Tamil genocide”. Anyone who cites the TGEWA to marginalize Sinhalese Ontarians, as perpetrators or supporters of the “Tamil Genocide” or otherwise, does so in error.
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(3) The Right to Equality
i. General Principles and the Reasons Below
[153] Section 15(1) of the Charter states:Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. [154] To establish a breach of s. 15(1), a claimant must demonstrate that the impugned law or state action:i. Creates a distinction based on enumerated or analogous grounds, either on its face or in its impact; and
ii. Imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage.
R. v. Sharma, 2022 SCC 39, 165 O.R. (3d) 398, at para. 28. [155] The application judge held that the appellants’ s. 15(1) claims failed at both stages. She rejected the appellants’ submission that the TGEWA drew a racial distinction against Sinhala-Buddhists by accusing them of having collectively committed a genocide. At most, the Act lays blame on the Sri Lankan state by identifying it as the perpetrator of a genocide. A claim that a state is responsible for a genocide does not tar everyone who shares the same nationality, ethnicity or religious affiliation as those comprising the majority of the state.
[156] The application judge further found that the TGEWA had no discriminatory impact. The focus of the appellants’ challenge was on the assertions in the preamble of the Act. But the preamble creates no rights or liabilities that could amount to legal benefits or detriments that disfavour Sinhala-Buddhists. Moreover, the operative provisions of the TGEWA declaring a commemorative week are purely symbolic.
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iii. Analysis
[162] We dismiss this ground of appeal.
[163] We reject Mr. Hewage’s submission that the TGEWA draws an express racial distinction against Sinhala-Buddhists. The impugned portions of the TGEWA’s preamble state 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.
[164] Additionally, we agree with the application judge 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. Further, the Act’s operative provisions are purely symbolic. 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.
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