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Sean Kilpatrick/Sean Kilpatrick 2008

A group of Quebec immigrants has succeeded in striking down a controversial law that barred their children from entering English-language elementary schools.

In a 7-0 ruling today, the Supreme Court of Canada said Quebec must pass a less "excessive" provision within a year if it intends to replace the dead prohibition.

Within minutes, Quebec's minister responsible for language, Christine St-Pierre, touched off what promised to be a day of political discord in the province by saying that she was "disappointed and angry" at the ruling. The ruling upheld a 2007 Quebec Court of Appeal decision that struck down the law, which prevented a child from attending a non-subsidized English-language elementary school for a year or less and then transferring into the English public school system.

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Under the law, the siblings of any child that qualified for an English-language education also qualified.

A group of families had challenged the law as a violation of their constitutional linguistic rights. They argued it was not only unfair to them individually, but it endangered the entire English school system by reducing the number of students that could enter it.

The Charter provision used by the litigants guarantees that any child who is or has received instruction in the language of the linguistic minority may have all their children receive primary and secondary school instruction in that same language.

Under Quebec's Charter of the French language, French is the common official language of instruction in elementary and secondary schools. However, it provides for children who have received most of their elementary or secondary instruction in English to enter a public or subsidized English-language private school in Quebec.

In 2002, the province passed Bill 104 as a response to what it perceived as the growing use of "bridging schools" (écoles passerelles) by immigrants seeking a quick way of getting their children into English schools. The bill stated that periods of attendance at the schools are not counted when determining if a child is eligible to receive instruction in the publicly funded English-language school system.

Under the bill, the same blanket prohibition was applied to education that a child had already received under a special authorization in cases where the child has a serious learning disability, is a temporary resident in Quebec, or has a serious family or humanitarian situation.

The Court said yesterday that the Bill was a disproportionate response to the problem.

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"The prohibition ... against taking a child's pathway in a UPS into account is total and absolute, and it seems excessive in relation to the seriousness of the problem of bridging schools being used to make obtaining access to minority language schools almost automatic," it said.

The Court criticized the fact that periods spent in the bridging schools are effectively "struck from the child's educational pathway as if they had never occurred.

"The inability to assess a child's educational pathway in its entirety in determining the extent of his or her educational language rights has the effect of truncating the child's reality by creating a fictitious educational pathway that cannot serve as a basis for a proper application of the constitutional guarantees," Mr. Justice Louis LeBel wrote for the majority.

However, he also made it clear that the province's objectives in enacting the legislation were "important and legitimate." The province can take another run at closing the purported loophole, but it must be more carefully tailored in reaching its objective, Judge LeBel said. He added that the trick for legislators will be screening out those who are exploiting the system to circumvent the province's orientation toward French-language education, while at the same time taking into account the nuances of each individual child and family.

"It is necessary to review the situation of each institution, as well as the nature of its clientele and the conduct of individual clients," Judge LeBel said.

He noted that the blanket provision preventing siblings from entering the same English-language school harms the constitutional goal of family unity, in that it "makes it impossible for children of a family to receive instruction in the same school system."

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The Court joined two separate appeals into one ruling in the case. Judge LeBel was joined in the majority by Madam Justice Beverley McLachlin, Mr. Justice Ian Binnie, Mr. Justice Morris Fish, Madam Justice Rosalie Abella, Madam Justice Louise Charron and Mr. Justice Marshall Rothstein.

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