April 5th, 2025 Toronto – Dear Friends and Colleagues who have supported our constitutional challenge to Ontario’s Tamil Genocide Education Week Act:
Summary
The Sri Lankan Canadian Action Coalition (SLCAC), together with the Sri Lanka Canada Association of Brampton (SLCAB), filed a case in Ontario Superior court challenging the Tamil Genocide Education Week Act, which falsely claims that Sri Lanka’s Sinhalese Buddhist centric government perpetrates genocide against Tamils, and Ontarians should learn about it. Dr. Neville Hewage filed a separate case. In June 2021, the community decided to entrust the case to a well-respected and actively practicing law firm with a strong track record in Canadian Constitutional Law.
SLCAC & SLCAB, together with some other community organisations raised a total of $246,760 through GoFundMe campaigns to fund legal fees for the Cambridge LLP legal team, led by Dr. Scott Fairley and Mr. Nicolas Rouleau (of Nicolas Rouleau Corporation). An additional $67,800 in private funding was later raised to cover legal fees for the appeal at the Court of Appeal. Separately, Nevil Hewage conducted his own fundraising to finance his legal representation. Given the nature the courts heard our cases at the same time.
The core objective of the two legal challenges was not to determine whether genocide occurred, but rather to argue, on constitutional grounds, that the Tamil Genocide Education Week Act infringes upon the division of powers between provincial and federal governments and violates the Canadian Charter of Rights and Freedoms.
On March 27th, the Supreme Court of Canada dismissed our Application for Leave to Appeal the Ontario Court of Appeal’s decision from September, which upheld the constitutionality of the Act, however it dismissed that TGEWA has an educational value. This outcome is disappointing. Our community invested significant effort and resources in an attempt to have this deeply troubling and offensive law repealed from Ontario’s legislation. Unfortunately, the Supreme Court does not provide reasons for declining to hear our case as well as Hewage’s case.
In short, while ruling against our community in the overall result, the legal system has in some important ways reduced the effect from what the Ontario legislature has done.
Next Steps
Despite the disappointment, we are proud of our efforts to fight against many odds from the beginning to seek justice for Sri Lanka. It is also fair to say that the Court of Appeal made some important findings in the case, which must be emphasized to all of you who have supported the pursuit of justice for our community. The explanation below been prepared with the input of our legal counsel who have assisted us at all three principal levels of the Canadian court systems: Nicolas Rouleau and Dr. Scott Fairley.
Throughout this case, we argued that (i) the Tamil Genocide Education Week Act (TGEWA)’s recognition and proselytization of a genocide was outside of the Province’s jurisdiction; and (ii) the TGEWA infringes the right to free expression of Sinhalese-Ontarians by suppressing their expression and by shutting down the marketplace of ideas (namely, by imposing the false narrative that a genocide had been inflicted on the Tamil population in Sri Lanka).
In a 167-paragraph decision released on September 5th, 2024, the Court of Appeal for Ontario upheld the TGEWA as a constitutionally valid law, thereby affirming the decision of Akbarali J of the Ontario Superior Court of Justice (June 2022 verdict). However, the Court of Appeal upheld the law for very different reasons than the justification for the TGEWA pleaded by the Attorney General of Ontario and accepted by Akbarali J.
As per section:
Argument on the division of powers
The Court of Appeal accepted our argument that the TGEWA’s purpose is not “to educate the public about what the Ontario Legislature has concluded is a Tamil genocide.” The Court noted that the TGEWA’s Preamble does not mention the term education. And while s. 1 of the TGEWA does mention education, the Court concluded: “[W]e disagree with the [trial judge’s] characterization of the Act as ‘educative’.” This short statement undercuts the truth of the TGEWA’s proposition that a genocide actually occurred. Rather, the Court of Appeal characterized the TGEWA’s purpose as being “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”. Nowhere does the Court affirm the existence of a genocide. While the Court acknowledges that the words of the Act make that allegation, the unanimous judgment goes on to say that “Anyone who cites the TGEWA to marginalize Sinhalese Ontarians, as perpetrators of supporters fo the “Tamil Genocide” or otherwise, does so in error.” This is a very important statement protective of our community in the event that the survival of the TGEWA as a matter of law is mobilized against us.
In upholding the TGEWA as a matter of provincial jurisdiction, the Court of Appeal seized on provincial jurisdiction over “matters of a local and private nature in the province”. The Court characterized this power over local matters as “broad”, and found that the Act’s purpose of affirming and commemorating the experience of a local community is done “by way of a commemorative week observed solely within the province”, which renders the Act “inherently “local””. This analysis totally missed our lawyers’ the point that the basis for commemoration is the uninformed and demonstrably wrong assumption that a genocide occurred in Sri Lanka. However, taking this distorted message out of the educational realm is an important win in an otherwise disappointing result.
Having characterized the legislation as “local”, the Court went on to reject our lawyers’ arguments that the TGEWA, unconstitutionally invaded federal jurisdiction over foreign affairs. Here, the Court mischaracterized the federal power at play as being to legislate on the “subject” of a genocide rather than on the “recognition” of a genocide. The decision of the Court was also contrary to the clear evidence on the record, which is that there has been no finding of genocide by the Government of Sri Lanka at international law, which the Preamble to the TGEWA invokes as the raison d’être for the law. Again, this was very disappointing; however, we go back to the Court’s clear statement that the legislative rhetoric does not attach to or stain our community. We wish the result could have been better, but this recognition is something that has made this fight worthwhile.
Argument on freedom of expression
On freedom of expression, the Court accepted that the dissent of Sinhalese individuals concerning the occurrence of a Tamil genocide has expressive content and that it is not excluded from s. 2(b) protection under the Canadian Charter of Rights and Freedoms. The Court also accepted our lawyers’ argument that this freedom of expression claim is a “negative rights” claim, which is important because, as the Court states, “diminished effectiveness might be enough to amount to a limit of s. 2(b) in its traditional negative orientation”. And the Court also appeared to accept our community’s evidence that: (i) certain government actors had cited the TGEWA to exclude dissenting voices from public discussions concerning the Sri Lankan Civil War; and (ii) there were incidents of anti-Sinhalese bullying during which the perpetrators cited the existence of a purported Tamil genocide but did not reference the TGEWA.
Yet the Court ultimately found that the TGEWA does not diminish the effectiveness of our community’s expression in a manner the breaches s. 2(b). It justified its conclusion on two grounds. First, it found that the TGEWA does not “deprive” anyone of “their ability to communicate effectively”. Second, it found that there is no sufficient nexus between the TGEWA and the profoundly negative impacts on our community.
Again, this is a disappointing result, but with important findings that have vindicated our community’s concerns prompting us to bring this case. In particular, the Court’s decision decisively shows that the TGEWA does not preclude our community’s point of view within the educational system, which some school boards, for example thought it did. And we believe that the educational environment for our children is now less toxic than it became immediately following the enactment of the TGEWA. This is clearly another “win” we can be proud of even though this terrible law has survived on Ontario’s statute books. We believe it will become an increasing embarrassment to the Province to the extent it receives further public attention. Hopefully, it will not be invoked to the further injury of our community given the damage the Court of Appeal has contained if not entirely removed.
Conclusion
We wish that the legislation we challenged could have been invalidated altogether. The fact that it was not and the fact that the Supreme Court of Canada declined to hear our case further are clear disappointments, despite being up against formidable the political forces that the Tamil community marshalled against us.
Nevertheless, the Court explicitly declined to agree with the Ontario legislature that a genocide did occur, and strongly implied it was not very wise to say so. It also did not question the very strong and uncontroverted evidence we presented from Dr. William Schabas, perhaps the world’s greatest authority on the subject of genocide, who provided evidence that the TGEWA is, in fact and law, a false declaration of genocide.
Anura Ferdinand
President
Sri Lankan Canadian Action Coalition
Sena Munasinghe
President
Sri Lanka Canada Association of Brampton
More information:
info@srilankancanadian.ca
Watsapp 613-700-4849
Main References:
1. William Shabas sworn Affidavit #1 on Tamil Genocide Education Week Act
2. William Shabas sworn Affidavit #2 on Tamil Genocide Education Week Act
3. Application Case (28th June 2022)
4. Ontario Court of Appeal Decision (5th September 2024)
5. Canada Supreme Court Decision (27th March 2025)
6. August 8, 2022 joint statatement by SLCAC & SLCAB
7. Talk with Chamuditha
8. Talk with Chathura
