Despite the headlines you might have read, Canada is not about to come to an end, Aboriginal title has not been found to “trump” private property in British Columbia, and there have been no “transfers” of land to the Cowichan tribes or anybody else arising from an 863-page

British Columbia Supreme Court ruling

that wrapped up last Thursday after 513 trial days.

The case has been awaiting resolution for more than a century and a half. It is a bit of a big deal, and a kind of a precedent has been set. But the ruling reveals very little that was not already obvious about the riddle that prevails in reconciling private property rights and Aboriginal land rights in all those places in Canada where the moral slovenliness and timidity of politicians has seen to it that there aren’t any treaties in place.

The status of private property in such places is a puzzle that has been vexing the courts for generations, especially west of the Rockies, where roughly 95 per cent of the land remains “unceded” by treaties. In her reasons for judgment in the Cowichan case, the Honourable Madam Justice Barbara Young has offered a way to muddle through it. It’s not nearly as frightening as it has been widely made out.

It’s complicated, but the first thing to notice is that in fact, the lands directly impacted by her decision are owned by the Crown in Right of Canada and the City of Richmond, and the privately-held properties that take up much of land successfully claimed by the Cowichan tribes were explicitly excluded from their case. The judge herself left the status of privately-owned land untouched. “The Cowichan have not made a claim for return of land from non-parties and the property rights of the private landowners are not undermined,” the judge declared.

The next thing to notice is that Judge Young suspended her own declaration for 18 months to allow the B.C. government and Ottawa to get themselves sorted, and in any case Aboriginal title cases like this are never settled by the B.C. Supreme Court. Premier David Eby’s attorney general has already announced an intention to take the case to the B.C. Court of Appeal, and it won’t be settled there, either. These cases never are. It may be years before the Supreme Court of Canada renders a decision, and as always, the can will be kicked back down the road to the politicians.

This is simply how it’s done. Which requires some explanation.

After B.C. joined Confederation in 1871, Ottawa chose to more or less avoid upsetting resource-industry apple carts and allowed generations of provincial governments in Victoria to get away with squandering the patrimony of a colony that had been a continental bastion of co-existence between Indigenous peoples and settler peoples. Until the Supreme Court of Canada definitively boxed their ears for them in the Delgamuukw decision in 1997, a succession of B.C. governments had kept on betting that there was no such thing as Aboriginal title to begin with.

It is customary for British Columbians to set their hair on fire whenever the courts remind them that they’ve been losing that bet as far back as the Calder case of 1973. This latest case involves a Cowichan fishing village on the Fraser River that Colonial Governor James Douglas had set aside from pre-emption that was swindled from the tribe only two years after Confederation by Richard Clement Moody, the former colonial commissioner of lands and works.

Not satisfied with deliberately overlooking the presence of a village that was home to as many as 1,000 Cowichan people during the fishing season, and then selling it off illegally in the province’s first rounds of land pre-emptions, Moody sold a big chunk of the old village site to himself via the connivings of a land agent.

Moody had no legal right to buy the village lands, it should go without saying — he ended up selling roughly 2,000 acres to himself in 11 different pre-emptions on British Columbia’s mainland — but the point is he had no right to sell the Cowichan land, either. The whole thing was illegal and unconstitutional.

While the federally-owned lands are no small matter — about 260 hectares are under the jurisdiction of the Vancouver Fraser Port Authority — it’s the City of Richmond that’s been shouting the loudest about Judge Young’s declaration. Richmond owns several lots and the entirety of the foreshore along the Fraser River at the site, which the judge described as “essentially undeveloped land that Richmond does not use.” Richmond acquired the land over the years mostly as “windfall” from municipal tax sales.

Judge Young said she agrees with Richmond’s lawyers that a declaration of Aboriginal title creates a degree of uncertainty about the fee-simple private properties in the 2,000-hectare claim area. However, “there is greater uncertainty if I do not declare that Richmond and Canada’s fee simple titles and interests are defective and invalid.”

It’s the Cowichan victory in its fishing-rights arguments that are likely of greater significance, and it was because of those assertions that the Cowichan claim was opposed by the Tsawwassen and Musqueam nations. As for the precedent the decision sets, it’s in Judge Young’s explicit finding that a provincial Crown grant of fee-simple title is not sufficient to extinguish Aboriginal title. That’s a power available only to the federal government, and only according to a fairly severe test of justification in the interest of a valid public purpose.

“Neither Aboriginal title nor fee simple title is absolute,” the judge noted “Aboriginal title and fee simple interests are not unqualified interests.” And they can coexist, or rather they already do coexist. The provincial Land Titles Act doesn’t apply to Aboriginal title. It never did. Both Crown title and Aboriginal title can underlie private property without the world coming to an end.

But how all this will come out in the wash will depend largely on the sophistication and the stamina of the provincial and federal governments. And that’s a matter that’s very much worth worrying about. If the Cowichan decision is handled badly, we may all end up paying very dearly. Still, it doesn’t have to be this way. Where the pattern of settlement and the advance of Crown sovereignty failed in Canada, it was in the breach of an Aboriginal rights doctrine that stretches back to 1763 and in the slovenliness of politicians who preferred the easy way.

It always catches up to us, eventually.

“Depend on it,” John Robson, the New Westminster Columbian editor who went on to become premier, wrote in 1864, “for every acre of land we obtain by improper means we will have to pay for dearly in the end, and every wrong committed upon those poor people will be visited on our heads.”

National Post

• Caroline Elliott: B.C. Supreme Court takes an axe to private property rights
• Jamie Sarkonak: This is what reconciliation looks like — the end of property rights

Watch the full video directly below.

Last Thursday, anti-Israel protesters

recorded

themselves outside of former foreign affairs minister Mélanie Joly’s residence in Montreal

— crossing the line between her public and private life.

The words, “Melanie war criminal — every time Melanie lies a child in Gaza dies. Israel terrorist. Melanie complice (complicit)” were projected onto her condo building. A woman with a megaphone decreed: “Canada’s arming of Israel during this genocide is the greatest stain of our generation. Ms. Joly’s actions warrant immediate consequences.” She did not elaborate on what she felt those consequences should be.

Earlier this month, it was announced that our current foreign affairs minister, Anita Anand, had closed her constituency office in Oakville, Ont., citing safety concerns related to anti-Israel protesters. 

The tactics used by these demonstrators appear to be escalating, despite Prime Minister Mark Carney’s promise to, under certain conditions, recognize Palestine as a state.

In this video, political strategist Anthony Koch and the Post’s Terry Newman discuss whether these events, and the historic ties between FLQ terrorists and the Palestinian Liberation Organization, suggest that Quebec could see an escalation of political violence, as it did during the October Crisis of 1970.

• Terry Newman: Quebec’s anti-Israel protesters mimicking early tactics of FLQ terrorists
• Anthony Koch: Gaza — the Palestinian state that could have been

Think you own your private property? Well think again, as a recent court decision has thrown the entire basis of property ownership into chaos in British Columbia.

In the ultimate “land acknowledgement,” the B.C. Supreme Court released a bombshell

judgment

last week declaring Aboriginal title for the Cowichan Tribes of Vancouver Island to around 325 hectares on the mainland, in the city of Richmond.

This is the first time a court has declared Aboriginal title over private land in the province, setting a deeply concerning precedent if the ruling is not successfully overturned following an appeal

promised

by B.C.’s attorney general.

In another troubling precedent, the court also declared that fee simple land titles — the typical form of private property ownership in Canada — in the area are “defective and invalid,” on the basis that the Crown had no authority to issue them in the first place.

As constitutional law professor Dwight Newman

points out

, if past fee simple grants in areas of Aboriginal title claims are inherently invalid, “then the judgment has a much broader implication that any privately owned lands in B.C. may be subject to being overridden by Aboriginal title.”

The only thing preventing the judge from making a similar declaration over privately held land in the new Aboriginal title area is the fact that the Cowichan did not ask for a declaration to this effect.

But nothing prevents that from happening in the future if the judgment stands. The judge actually contemplates this very scenario, writing that, “Fee simple interests … will go unaffected in practice when Aboriginal title is recognized over that land, unless or until the Aboriginal title holder successfully takes remedial action in respect of the fee simple interests.”

In short, while most private landowners assume their title to their own land is bulletproof, the ruling states: It “cannot be said that a registered owner’s title under the (Land Title Act) is conclusive evidence that the registered owner is indefeasibly entitled to that land as against Aboriginal title holders and claimants.”

It’s worth noting that the claim was

contested

by two mainland Indigenous groups, the Musqueam and Tsawwassen First Nations, both of whom lay claim to the same land. This highlights the issue of competing claims in a province where the vast majority of the land mass is claimed as traditional territory by one or more of B.C.’s 200-plus Indigenous groups.

While two previous decisions by the Supreme Court of Canada recognized Aboriginal title in British Columbia (

Tsilhqot’in

in 2014 and

Nuchatlaht

in 2024), neither declared it over privately held lands as this one does.

Even as the B.C. government has promised to appeal the decision, it has been pursuing similar policies outside the courts. The province controversially overlaid Aboriginal title on private land with its

problematic

Haida Nation Recognition Act in 2024. The act was specifically referenced by the plaintiffs in the Cowichan case, and the judge agreed that it illustrated how Aboriginal title and fee simple can “coexist.”

This is a questionable assertion given the numerous legal

concerns

. As one analysis explains, private property interests and the implementation of Aboriginal title are ultimately at odds: “The rights in land which flow from both a fee simple interest and Aboriginal title interest … include exclusive rights to use, occupy and manage lands. The two interests are fundamentally irreconcilable over the same piece of land.

While the government claims it adequately protected private property rights in the Haida agreement, Aboriginal title is protected under the Constitution, while private property rights are not. When these competing interests are inevitably brought before the courts, it’s easy to imagine which one will prevail.

The fact that B.C. Premier David Eby said last year that he intended to use the Haida agreement as a “

template

” for other areas of B.C. stands in marked contrast with his

sudden interest

in an appeal as a means of preserving clear private property titles in the wake of this politically toxic ruling.

Indeed, Eby’s government continues to negotiate similar agreements elsewhere, including with the shíshálh Nation on B.C.’s Sunshine Coast, even as government documents

admit

that Aboriginal title includes the right to “exclusively use and occupy the land.”

Eby’s commitment to an appeal suggests he may have learned from his costly refusal to appeal a 2021 B.C. Supreme Court

decision

, which found that excessive development had breached the treaty rights of the Blueberry River First Nation. Eby’s government chose to pay out a $350-million settlement to avoid further litigation, a move that ultimately

backfired

when the two parties ended up back in court.

But for now, the consequences of the Cowichan decision have created considerable uncertainty for property owners, businesses and general market confidence. The judge’s own words sum it up: “The question of what remains of Aboriginal title after the granting of fee simple title to the same lands should be reversed. The proper question is: what remains of fee simple title after Aboriginal title is recognized in the same lands?”

If there’s one positive aspect to this decision, it’s that it is so extreme, it will force the Eby government’s radical Indigenous policies onto the public agenda as awareness builds over what’s at stake.

From its incessant

land acknowledgements

, to MLAs referring to non-Indigenous British Columbians as “

uninvited guests

,” to its embrace of the United Nations Declaration on the Rights of Indigenous Peoples and its land back policies, to

undemocratic

land use planning processes and the

overlaying

of Aboriginal title on private lands, B.C. government policy has long been headed in exactly this direction.

Now, a reckoning is coming, and it’s of the government’s own creation. The broader issue will soon overtake all others in the public eye, and the premier must decide now whether he’ll start walking things back, or double down on his disastrous course.

National Post

Caroline Elliott is a senior fellow with the Aristotle Foundation for Public Policy and sits on the board of B.C.’s Public Land Use Society.

• Caroline Elliott: B.C.’s land reforms treat non-Indigenous people like uninvited guests
• Caroline Elliott: Closures of B.C. parks to non-Indigenous visitors a sign of things to come

The Toronto International Film Festival has taken a deeply troubling stand — revoking an invitation to producers of a new film about October 7, citing video clearance issues and potential “threat of significant disruption.”

This isn’t about artistic differences or legal technicalities. It’s censorship, plain and simple. And it denies audiences the right to witness the unfiltered reality of Hamas’s brutality.

“The Road Between Us” focuses on retired Israeli general Noam Tibon, whose story was widely covered in the days after the attacks. Tibon made a daring rescue of his two granddaughters from the Nova Music Festival, driving into danger to save them from the Hamas assault. His journey is both deeply personal and emblematic of the chaos and heroism of that day.

The most contentious element of the documentary is video taken directly from the body cameras of Hamas terrorists. I witnessed the horrors of the Hamas footage during a recent trip to Israel with the Exigent Foundation. The Israel Defense Forces assembled 55 minutes of video footage from body cams and security cameras taken during the October 7 massacre of 1,200 people, mostly civilians. It is chilling. It’s hard to watch. But it must be shown. The Hamas filmed video I saw showed terrorists shooting randomly as young people fled for their lives through the fields, and firing into the portable toilets lined up at the festival site, where dozens of festival-goers had taken refuge. They shot through the structures one at a time, as screams from inside were audible. You can see the fear in the eyes of the young festival-goers as some are taken hostage, thrown into the back of pickup trucks while their abductors celebrate. It’s horrifying to watch and horrifying to imagine what those kids suffered. It also shows the joy the terrorists took in doing so.

Pro-Hamas activists don’t want the terrorist-filmed videos widely shown because they leave no room for euphemism or denial. It makes the attackers’ intent unmistakable: to kill Jews and destroy Israel. These were not acts of resistance. They were acts of barbarism.

Filmmaker Barry Avrich agreed to TIFF’s demand to change the title of his documentary from “Out of Nowhere: The Ultimate Rescue” to “The Road Between Us.” TIFF also reportedly asked the filmmakers to identify the source of violent footage live-streamed by Hamas and to confirm legal clearance — another roadblock to keep the film from being screened. Disclosure: I worked with Avrich on a different documentary about 15 years ago.

TIFF’s rationale — that cancelling the screening is about “clearing rights” from terrorists — collapses under scrutiny. This isn’t about intellectual property. It’s about suppressing truth that some people find politically inconvenient. As the filmmakers themselves say: “We are not political filmmakers, nor are we activists; we are storytellers. We remain defiant, we will release the film, and we invite audiences, broadcasters, and streamers to make up their own mind, once they have seen it.”

Film festivals should defend artistic freedom, confront audiences with hard truths, and spark difficult conversations. Instead, in a statement TIFF pointed to the need to disqualify films that could pose a “potential threat of significant disruption.” That same logic was cited last year when TIFF canceled Russians at War after massive protests — even though, at first, the festival defended its inclusion. Eventually the film was shown after the festival when the crowds had gone home, and under heavy security.

In uninviting Avrich’s film, TIFF has betrayed its mission — and robbed audiences of the chance to confront the reality of October 7. The truth should be seen, not buried, even if it’s hard to watch.

Leslie Roberts is a former television journalist and news anchor.

• André Pratte: PQ byelection victory heralds the return of Quebec separatism
• Gage Haubrich: Chopping gun confiscation program a good place to start cutting government spending

After the past provincial election in Quebec three years ago, the Parti Québécois was nearly left for dead, with only three members in the 125-seat National Assembly and a lowly 14.6 per cent of the votes. How things have changed since!

Monday evening, the PQ won a third byelection in a row, by a wide margin, despite their candidate facing strong opposition from the leader of the Quebec Conservative Party. “This reminds me of the Parti Québécois of the 1970s,” stated péquiste leader Paul St-Pierre Plamondon. Indeed, leading in the polls for several months now, the sovereigntist party has clearly become THE alternative to the unpopular government led by François Legault.

The byelection was held in the region of Arthabaska, situated between Montreal and Quebec City. Arthabaska-L’Érable is a semi-rural conservative riding, comprising the city of Victoriaville (population: 48,000).

Éric Duhaime, leader of the provincial Conservative Party, was hoping to win so that his small party would finally be represented in the National Assembly. Most commentators predicted a close race between Duhaime and the PQ candidate, journalist Alex Boissonneault. In fact, Boissonneault won easily with over 46 per cent of the vote, compared with 35 per cent for Duhaime. It is the first time since 1998, 27 years ago, that the riding has elected a Parti Québécois candidate.

Campaigning from door to door, Duhaime and the other candidates tried to tap in some voters’ fear of a third referendum on separation, as promised by Plamondon if the PQ forms the next government. In vain. To the contrary, there appears to be a surge of enthusiasm for independence, at least amongst young Quebecers.

This summer, surveys by two different polling firms put the support for separation at close to 50 per cent among voters aged 18 to 34 years old, a leap of some 15 percentage points compared with earlier polls. It is not clear what caused this sudden rise, but if it reflects reality, this will infuse the separatist movement with a tremendous amount of energy and enthusiasm. For a time seen as an outdated project, Quebec’s independence appears to be making a comeback, perceived by an increasing number of young people as an idea of the future, a solution to the province’s many problems (and theirs). Some even think that an independent Quebec would be in a better position to negotiate with Donald Trump, as baffling as that may sound.

The other major provincial parties did not fare well in the Arthabaska-L’Érable byelection, and their poor performance is a clear signal that they need to redress the boat quickly if they want to be competitive in the next general elections, scheduled for October 2026. The ruling Coalition Avenir Québec, which had previously won the riding with 52 per cent of the vote, saw its share of support crash down to seven per cent. This catastrophic score, combined with very poor polling results, brought Premier Legault to acknowledge Monday evening that Quebecers are not satisfied with his government. Legault, who appears set to continue to lead his party notwithstanding, will announce a major shuffle of his cabinet next month in the hopes that this may begin to turn things around. It is true that the outcome of the past federal election shows that nothing is impossible in politics; however, the premier cannot ignore the fact that that outcome was only made possible by a change at the helm of the Liberal Party of Canada.

Despite running a good local candidate and having a new, well-known leader in former federal minister Pablo Rodriguez, the Quebec Liberals received only 9.3 per cent of the vote in Arthabaska. This was sufficient to overtake the CAQ candidate in third place. Nonetheless, it was a very disappointing score for a party that currently forms the Official Opposition in the provincial parliament.

In his victory speech, PQ Leader Plamondon was careful to emphasize the issues that most Quebecers care about — the cost of living, the poor performance of public services, the government’s huge deficit — rather than separation. The péquistes can be counted on to propose concrete, original solutions to those problems. What ideas will the Liberals and other parties put forward? The Libs, in particular, will be tempted to use their time-tested strategy of agitating the referendum bogeyman in order to scare Quebecers away from the Parti Québécois; the results in Arthabaska-L’Érable are a clear indication that nowadays, such a simplistic tactic is not sufficient.

Polls show that despite the trend in favour of separation among young people, 60 per cent of Quebecers would vote NO to a referendum on independence (the same percentage as in the 1980 referendum). Still, Plamondon is steadfast in his commitment to hold a public consultation on sovereignty if he is chosen to lead the province’s next government. And Brexit has shown that once the referendum ball begins rolling, anything can happen.

National Post

• André Pratte: Pablo Rodriguez has won over the Quebec Liberals. That was the easy part
• André Pratte: Energy East is still a pipe dream. Quebec support won’t last

If Prime Minister Mark Carney is looking for ways to save money, he can start by shooting fish in a barrel: He can scrap the gun confiscation program that law enforcement leaders and academic experts say won’t work.

Carney’s government says it’s working super hard on a spending review. Finance Minister François-Philippe Champagne told the rest of cabinet to

come

up with “ambitious savings proposals” to control government outlay.

Public Safety Minister Gary Anandasangaree doesn’t have to hunt very far for his savings proposal; all he needs to do is cancel Ottawa’s gun confiscation scheme and save taxpayers potentially billions of dollars.

The letter from Champagne called on ministers to assess “whether existing programs within their departments are meeting their objectives.” And in the case of Ottawa’s gun confiscation and payment program, that’s a big fat no.

All the scheme has accomplished so far is increasing costs to taxpayers. And that’s all that it looks likely to do.

When Ottawa originally

announced

its buyback program in 2020, the government banned 1,500 different makes and models of guns. After additional waves of bans, the list now contains more than 2,000 different models.

The feds have only recently started to seize firearms from businesses, and the government has yet to take a single firearm away from individual gun owners.

The

government

said in 2019 that the program would cost $200 million. Now it has decided to spend more than $342 million on the program just this year, according to the

Main Estimates

. Some other projections by firearm policy experts put the total

cost

to taxpayers at $6 billion. Scrapping the program today would allow the government to cut its losses and stop wasting any more money on this unsuccessful venture.

The government’s plan to seize guns from licensed Canadian firearm owners is a colossal failure from every angle.

It’s not a failure just because it was designed incorrectly and needs more work, it’s a failure because it was never going to work in the first place. That’s because those individuals who are willing to commit crimes with guns aren’t going to participate in a government program to take their firearms away.

That’s simple logic, but it also echoes what the facts and the experts are saying.

“Buyback programs are largely ineffective at reducing gun violence, in large part because the people who participate in such programs are not likely to use those guns to commit violence,”

said

University of Toronto professor Jooyoung Lee, who studies gun violence in Canada.

The police are saying the same thing.

“The majority of gun crime in Canada is committed with illegal firearms that are traced back to the United States,” 

said

Brian Sauvé, the president of the National Police Federation (NPF), the union that represents the RCMP.

The NPF also says that Ottawa’s confiscation program “diverts extremely important personnel, resources and funding away from addressing the more immediate and growing threat of criminal use of illegal firearms.”

Since the government made it illegal for Canadians to use the banned firearms in 2020, gun crime in Canada has

increased

.

The government of New Zealand took guns away from its citizens in 2019, and its ban was even more far-reaching than Ottawa’s. There were 379 more violent firearm offences in 2023 in New Zealand,

compared

with 2018, the year before its confiscation program began.

Canadians don’t believe this program is the most effective way to reduce gun crime either. Fifty-five per cent of Canadians think introducing tougher measures to stop the smuggling of guns into Canada from the United States is the most effective way to reduce gun crime, according to

Leger

polling.

Ottawa’s gun confiscation is expensive, it’s failing to achieve its goals and Canadians don’t think it’s likely to work.

So, when Anandasangaree presents his plan for savings to Champagne, scrapping the gun ban and confiscation scheme should be at the top of his list.

Special to National Post

Gage Haubrich is the Prairie Director for the Canadian Taxpayers Federation.

• FIRST READING: Internal report shows Ottawa doubtful that wildly overbudget gun ‘buy back’ will ever work
• Liberals add nearly 200 more firearms to prohibited weapon list

It is tempting to dismiss a court challenge over a Saskatchewan pronoun law as a waste of legal resources and time, a squandering of taxpayers’ money and a misreading of the Charter of Rights and Freedoms.

And yet one person
interviewed
by the CBC said that because of the law she had “kids come up to me saying they were afraid that they were going to die, basically, because of their homes being unsafe.”

Well, clearly, if teenage boys and girls feel they are going to die because parents aren’t using their preferred pronouns then obviously no expense should be spared.

On Monday, the Saskatchewan Court of Appeal decided to prolong this travesty of justice by sending a challenge over the provincial government’s pronoun policy back to a lower court.

The government passed its pronoun law using  section 33 of the Charter (the notwithstanding clause.) Nobody is challenging that the government didn’t have the right to do that.

Also, the court case started over the government’s original policy (before it passed a law.) That policy has been repealed so that part of the case is entirely moot.

However, the appeal court said the original judge did have the right to declare whether he thought Charter rights had been limited — but he didn’t have to. The judge can use his discretion about whether to make a declaration or not.

So the appeal court is saying the Saskatchewan government has done nothing wrong but a judge still has the right to scold it if he believes the Charter has been infringed in some way.

No one should be surprised if the headline on this article is: Judges uphold judge’s right to chide government.

And all this legal brouhaha is because the Saskatchewan government — quite sensibly — believes that schools shouldn’t be in the business of allowing young children to impulsively change their pronouns without telling their parents.

In 2023, the Saskatchewan government agreed on a policy that teachers and schools must get written consent from parents before using the preferred pronoun of a student under 16.

Premier Scott Moe
said
at the time that the policy was about “the rights of a parent to ensure they are involved in their child’s decision.”

When a non-profit group called the UR Pride Centre for Sexuality and Gender Diversity at the University of Regina launched a court challenge over the policy, the government put the pronoun policy into law and coupled it with the notwithstanding clause.

UR Pride claimed that the government’s policy was infringing students’ Charter rights under Section 7 (everyone has the right to life, liberty and security of the person) and Section 15 (every individual is equal before and under the law.) The group now also claims that Section 12 (everyone has the right not to be subjected to any cruel and unusual treatment or punishment) has been infringed.

A reminder: We are talking pronouns, folks.

At the Court of King’s Bench for Saskatchewan, the government argued that because it had invoked the notwithstanding clause the court had no jurisdiction to hear arguments about infringements of the Charter.

The judge ruled against the government. The government appealed. The appeal court sided with the original judge. The case now goes back to the lower court who may, or may not, reprimand the government.

Meanwhile, neither court has actually ruled on whether the government’s law infringes any Charter rights at all.

And so the case, about a perfectly legal law, concerning a very reasonable policy, relating to upholding parental rights, drags on.

Such is the interest in the case that intervenors included: The Advocates’ Society, an association of  6,000 judges, lawyers and advocates; Amnesty International Canadian Section; British Columbia Civil Liberties Association; Canadian Civil Liberties Association; Canadian Union of Public Employees, and the Canadian Teachers’ Federation.

A total of 29 lawyers were needed at the appeal court to represent everybody.

In allowing the case to go back to the lower court, the appeal court said, “The proper functioning of our constitutional democracy is enhanced, not impaired, if Canada’s citizens, and legislators alike, are made aware when legislation that is allowed to operate by virtue of s. 33 does so in a way that limits Charter rights and freedoms.”

In other words, the courts have the right to tell governments that although they are may be acting legally, they can still be wrong.

However, one judge disagreed with the court.

In his dissenting opinion, Justice Neal Caldwell said that once the government had invoked the notwithstanding clause, the courts had no say in the matter.

“The invocation of s. 33 of the Charter temporarily ends the debate between the judicial and legislative branches of government, leaving the political or policy merits of the Act or provision in question to the electorate to determine.”

A judicial finding of “let the people decide” is a welcome breath of commonsense. It is unfortunate that it is limited to one judge, but at least it’s a start.

National Post

• Terry Newman: Quebec’s anti-Israel protesters mimicking early tactics of FLQ terrorists
• Jamie Sarkonak: This is what reconciliation looks like — the end of property rights