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Constitution (Non-Charter) - Foreign Affairs. 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 federal (though unlisted in division-of-powers list in s.91 of The Constitution Act, 1867) 'foreign affairs' power:[120] Finally, the TGEWA does not encroach on any federal jurisdiction over foreign affairs.
[121] While the Constitution Act, 1867 does not expressly assign foreign affairs powers to any level of government, the federal executive has the power to enter into agreements with other states by virtue of the Royal Prerogative: Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at paras. 33-35. In the exercise of such a power Canada became a signatory to the Genocide Convention. It is clear that the federal government does not have exclusive jurisdiction over all matters that might be understood in some sense as relating to foreign affairs.
[122] The TGEWA is not an exercise in the conduct of foreign affairs, nor can it be said to interfere with the federal government’s jurisdiction over foreign affairs. While the Act purports to recognize the Tamil genocide, it does not do so for the purpose of engaging in international relations or to give effect to any international obligation. Further, it does not bind Canada to a treaty with a foreign state or encroach on the federal power to enter into treaties with foreign states on behalf of Canada. In any event, even if the TGEWA could be said to interfere with the federal executive’s treatymaking powers, that would not alone render the Act ultra vires. The provinces are entitled to incidentally affect matters of federal jurisdiction while exercising their own heads of power.
[123] We therefore conclude that the TGEWA is not an exercise of any federal head of power nor does the Act interfere with any such power. We turn now to the appellants’ Charter arguments.
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