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Heritage-Awareness - Tamil Genocide Education Week Act, 2021 Cases. 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 dismissed application (JR?) for a "declaration of constitutional invalidity", dealing with the 'Tamil Genocide Education Week Act, 2021' - what I call a 'heritage/awareness statute':[1] This appeal concerns the constitutional validity of the Tamil Genocide Education Week Act, 2021, S.O. 2021, c. 11 (the “TGEWA”). The Act’s preamble purports to recognize that the Sri Lankan state perpetrated a genocide against the Tamils leading up to and during the Sri Lankan Civil War. The Act’s operative provisions proclaim the week ending May 18 (the date in 2009 on which the civil war ended) as “Tamil Genocide Education Week”, and encourages Ontarians to “educate themselves about, and to maintain their awareness of, the Tamil genocide and other genocides that have occurred in world history” each year during that week.
[2] The Sinhalese people comprise a majority of Sri Lanka’s population. The Sri Lankan Canadian Action Coalition and Sri Lanka Canada Association of Brampton (collectively, the “Coalition Appellants”) are community organizations that advocate for the interests of Sinhalese Ontarians.
[3] The appellant Neville Hewage is an Adjunct Professor and Research Fellow at the International Centre for Interdisciplinary Research in Law at Laurentian University. He is a member of Ontario’s Sinhalese community.
[4] The Coalition Appellants and Mr. Hewage oppose the TGEWA. They dispute its factual predicates and fear that it further marginalizes Ontario’s small Sinhalese diaspora. They sought to have their perspectives included in the TGEWA before it was enacted. After the Act received royal assent, they applied for a declaration of constitutional invalidity. They argued that the TGEWA is ultra vires Ontario, and that it infringes their rights to free expression and equality under ss. 2(b) and 15(1) of the Canadian Charter of Rights and Freedoms.
[5] The respondent Attorney General of Ontario (“Ontario”), and the interveners, the National Council of Canadian Tamils, the Canadian Tamil Academy, the Canadian Tamil Youth Alliance (collectively, the “Tamil Canadian Coalition”) and the Tamil Rights Group sought to uphold the TGEWA. Collectively. they argued that the Act constitutes a valid exercise of provincial power that neither suppresses the appellants’ expression nor discriminates against them. Ontario and the Tamil Canadian Coalition argued that the TGEWA advances the substantive equality of Tamil-Ontarians,[1] who have suffered from intergenerational trauma and stigma in the wake of the Sri Lankan Civil War.
[6] The application judge upheld the TGEWA. She determined that the Act has an “educative” purpose that falls within Ontario’s powers under s. 93 of the Constitution Act, 1867. She further held that the Act does not infringe the appellants’ rights to free expression and equality.
[7] The appellants submit that the application judge mischaracterized the purpose of the TGEWA. They say that its purpose is to recognize and declare a genocide, a purpose which they submit is reserved exclusively to Parliament. Mr. Hewage further contends that the application judge erred in holding that the TGEWA does not breach their rights to free expression and equality.
[8] We dismiss the appeal but, in upholding the constitutionality of the Act, our analysis differs in certain respects from that of the application judge.
[9] We agree with the application judge that the TGEWA is intra vires Ontario, but we disagree with her characterization of the Act as “educative”. We conclude 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. Ontario may legislate to recognize the experiences of local communities by way of commemorative days observed solely within the province. This power derives from the provinces’ authority over “local matters” under s. 92(16) of the Constitution Act, 1867.
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B. BACKGROUND AND PROCEDURAL HISTORY
(1) Historical Context
[11] We are not being asked to decide whether the TGEWA is a wise use of government power. Our decision should not be interpreted as such.
[12] Nor are we being asked to decide if a genocide occurred in Sri Lanka. As the application judge emphasized, this case is not about whether a Tamil genocide occurred. The application judge was not called upon to decide, nor are we, the character of the acts of violence and marginalization that took place in Sri Lanka, who is responsible for them, nor the intent with which they may have been committed.[2] To this end, our discussion of the Sri Lankan conflict is limited to the undisputed facts necessary to understand the historical context underlying the TGEWA.
[13] As noted, 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.
[14] From 1983 to 2009, a civil war occurred between the Sri Lankan state and an organization called the Liberation Tigers of Tamil Eelam (“LTTE”).[3] The people of Sri Lanka suffered greatly. Thousands were killed or displaced.
[15] Many Sri Lankans fled to Canada. Ontario is now home to one of the largest Tamil diasporas outside of southeast Asia. There is also a significant – though much smaller – Sinhalese community in Canada, including in Ontario.
[16] 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.
[17] The Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1984, 78 U.N.T.S. 277 (entered into force 12 January 1951) (the “Genocide Convention”) – a United Nations treaty to which Canada is a party – criminalizes acts of genocide under international law. Article II defines genocide to mean “[any of five listed] acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.[4] Canada has enacted a domestic offence that largely replicates this language: Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, s. 4.
[18] To date, however, the International Court of Justice has not found the Sri Lankan state responsible for a genocide. According to the appellants’ expert, Dr. Schabas, there has been no international recognition of genocide, with respect to the Tamils in Sri Lanka, by political declaration of United Nations organizations or a judicial finding by an international court.
[19] Nor have the parties brought to our attention any case suggesting that a Canadian court has found anyone associated with the Sri Lankan state, or who participated in the civil war, guilty of genocide.[5]
(2) Legislative History
[20] MPP Vijay Thanigasalam introduced the TGEWA in the Legislative Assembly of Ontario on April 30, 2019 as a private member’s bill. The Act’s preamble and operative provisions are relatively brief, providing in relevant part as follows:Preamble
The Tamil community in Ontario is one of the largest concentrations of Tamils outside southeast Asia. It stretches across the province but the highest concentration is in the Greater Toronto Area. Tamil-Ontarians play an important role in the social, economic and political fabric of the province.
Tamil-Ontarians have families still suffering in their homeland in the north and east of the island of Sri Lanka. They have lost their loved ones and have been physically or mentally traumatized by the genocide that the Sri Lankan state perpetrated against the Tamils during the civil war which lasted from 1983 to 2009, and especially so in May of 2009. Genocide is the deliberate and organized killing of a group or groups of people, with the intention of destroying their identity as an ethnic, cultural or religious group. Acts of genocide against the Tamils started in 1948 after Sri Lanka gained its independence and were perpetrated through Sinhala-Buddhist centric government policies, pogroms, land grabs and ethnic cleansing. The United Nations Organization estimates that in May 2009 alone about 40,000 to 75,000 Tamil civilians were killed. Other estimates place the death toll at 146,679 civilians. These figures only reflect the death toll in 2009 leading up to May 18, the day on which the civil war ended. The loss of Tamil civilian lives during the genocide, which continued for decades in Sri Lanka, is much higher.
In addition, the Sri Lankan state has systematically disenfranchised the Tamil population of their right to vote and to maintain their language, religion and culture. For example, the Sinhala Only Act of 1956 made Sinhalese the official language of Sri Lanka ignoring the 29 per cent of the population whose primary language was Tamil, thereby putting them at a serious disadvantage for participating in the public service of Sri Lanka.
It is important for many reasons to acknowledge publicly that the killings and all aspects of the genocide constitute a heinous act. Not only does this acknowledgement honour the lives that were lost, but it gives a sense of hope to those who have suffered since it represents the first step to healing and reconciliation. Most importantly, by recognizing the Tamil genocide, we affirm our collective desire to maintain awareness of this genocide and other genocides that have occurred in world history in order to prevent such crimes against humanity from happening again.
Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
Tamil Genocide Education Week
1 (1) The seven-day period in each year ending on May 18 is proclaimed as Tamil Genocide Education Week.
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(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. [21] During the first reading, MPP Thanigasalam stated:This May, the Tamil community will be remembering the lives lost in the Tamil genocide perpetrated by the Sri Lankan state. At this time, the passing of the Tamil Genocide Education Week bill by the government of Ontario will give them some hope. The Tamil community in Ontario [has] suffered mental, physical and emotional trauma from the genocide. By recognizing the Tamil genocide, it will allow for the community to begin a healing process and continue to contribute to Ontario.
Education is the most powerful weapon in the world. By educating, we can change the world. The aim is to educate Ontarians about not only the Tamil genocide but also others across the world.
Legislative Assembly of Ontario, Official Report of Debates (Hansard), 42nd Parl., 1st Sess., No. 98 (30 April 2019), at p. 4629. [22] We will examine the legislative debates on the TGEWA more closely when analyzing its pith and substance below. At this stage, we simply note that it passed unanimously without amendment. It received royal assent on May 12, 2021.
[23] The appellants say that they sought to have their perspectives included during the debates on the TGEWA, but their efforts were ignored or rebuffed.
(3) The Aftermath
[24] 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.
[25] 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”: House of Commons, Official Report of Debates (Hansard), 44th Parl., 1st Sess., Vol. 147, No. 74 (18 May 2022), at p. 5519. One year later, on May 18, 2023, Prime Minister Justin Trudeau made a public statement in which he noted:Today, we reflect on the tragic loss of life during the armed conflict in Sri Lanka, which ended 14 years ago. Tens of thousands of Tamils lost their lives, including at the massacre in Mullivaikal, with many more missing, injured, or displaced.
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The stories of Tamil-Canadians affected by the conflict – including many I have met over the years in communities across the country – serve as an enduring reminder that human rights, peace, and democracy cannot be taken for granted. That’s why Parliament last year unanimously adopted the motion to make May 18 Tamil Genocide Remembrance Day. Canada will not stop advocating for the rights and survivors of this conflict, as well as for all in Sri Lanka who continue to face hardship.[6]
The Right Honourable Justin Trudeau, “Statement by the Prime Minister on the First Tamil Genocide Remembrance Day” (18 May 2023), online: . [26] The appellants have submitted affidavits claiming that, since Ontario enacted the TGEWA, those disputing the occurrence of a Tamil genocide have been mistreated and excluded. For example, a teacher of Sinhalese descent who worked for the Toronto Catholic District School Board deposed that she was excluded from a Tamil Genocide Education Week Committee after she disputed the occurrence of a Tamil genocide. As justification, the School Board’s Superintendent of Diversity and Equity purportedly told the teacher that the Board “follows the narrative of the province”, as expressed in the TGEWA.
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