Feminist strategic litigation (FSL) involves engaging in Canada’s legal system, which, like many other systems in Canada, is far from perfect.
Why wouldn’t someone want to use Canada’s legal system?
- It carries and reproduces sexism, racism, colonialism, heterosexism, ableism, Anglo-dominance, transphobia, and other oppressive structures
- It can be expensive and time-consuming
- It can be retraumatizing for survivors
- It might not offer the kinds of solutions that someone is looking for
- Justice doesn’t always prevail
So, why are we here? Shouldn’t we turn our backs to the legal system?
- Justice can mean something different for everyone, and some people, including survivors, may choose to seek justice through the legal system
- Court decisions have impacts on the lives of those involved, and they can also have wide-ranging impacts (which we will get into later)
- Some people may not have a choice:
- If a lawsuit is brought against them
- If going to court is the only way to settle a legal matter (for example, a custody agreement)
- If they are charged with a crime
Reflection question: Are there any other pros and cons of using Canada’s legal system that you can think of?
While many issues exist within Canada’s legal system, feminists have been able to use it to create positive change, both for survivors going through the courts, as well as for survivors, their families, and their communities more broadly. Here’s a timeline of some FSL wins that you may be familiar with:
Supreme Court recognized sexual harassment as a form of discrimination.
Supreme Court recognized the concept of "battered woman syndrome" as a valid consideration in self-defense cases.
Supreme Court recognized that when it comes to consent, only yes means yes.
Supreme Court adopted a framework that ensures single mothers and their children get the child support they’re owed.
Supreme Court ruled that if someone consents to sex with a partner on the condition that the partner wears a condom, but the partner doesn’t wear one, then the sex is non-consensual.
Where do you come in?
Lawyers and judges may be experts in law, but are often not experts in gender equality or issues that impact survivors and their communities. Your expertise can help:
- Combat harmful myths and stereotypes
- Make sure courts understand how their decisions will affect the communities you work with
- Uplift the perspectives of the communities you work with
- And more!
Legal decisions don’t just affect the people directly involved in a case. Your voices can bring important facts and perspectives that might otherwise be left out.
Here’s a quote from a GBV advocate that illustrates how and why legal organizations and GBV advocates could come together to bring positive change for survivors through FSL:
Now, hear from three GBV advocates on why they do FSL:
Next, let’s apply your expertise to a court case.
Pick one of the following court cases. What is the systemic issue(s) in the case? What would you want the courts to know about the issue(s)? You can use the guiding questions as a starting point for your reflections, then read what LEAF argued in each case.
1) Sparks v. Nova Scotia
The Facts: Brenton Sparks lived with his spouse Rosemary Sparks and their three children. The family received income assistance in one cheque payable to Mr. Sparks. The assistance was made up of personal allowances for Mr. and Ms. Sparks, and a shelter allowance based on the size of the family.
A caseworker found that Mr. Sparks had failed to comply with the job search requirements of Nova Scotia’s employment services program by failing to attend an appointment with his employment counsellor. Under Nova Scotia’s social assistance legislation, this meant that the family’s entire income assistance was suspended.
- What are the impacts that this rule has on families receiving income assistance?
- What are some of the ways in which gender and poverty are linked?
- What gender equality considerations do you think income assistance rules should take into account?
- If a person unreasonably refuses to participate in employment services, only that person’s portion of income assistance should be suspended – not the income assistance for the entire family
- The decision to hold all members of a family responsible for the actions of one of its members has a disproportionate impact on children and their caregivers, in a context in which women experience continued disadvantage socially and economically
- Pausing income assistance only for the person who refused to participate in employment services is the only interpretation consistent with the legislation’s purpose, Charter values, and Canada’s international human rights obligations.
Read more about the case here.
2) Ahluwalia v. Ahluwalia
The Facts: A tort is a legal term for when a person does something wrong that causes harm or loss to another person. If someone commits a tort, the victim can go to court to receive damages, or compensation. There are different kinds of torts that are recognized by the courts, such as battery and assault.
A judge established a new tort of family violence after finding that Ms. Ahluwalia experienced significant physical, emotional, and psychological trauma as a result of spousal violence. The Ontario Court of Appeal disagreed and said that the new tort was not necessary.
- How is family violence different from other kinds of violence?
- What would be the benefits of having a tort of family violence?
- What impacts, if any, would a tort of family violence have on your clients, members, or community?
- Courts need to consider access to justice when deciding whether to create a new tort
- The values underlying section 7 of the Charter – the right to life, liberty, and security of the person – support recognizing the tort of family violence
- Courts should provide clear guidance on how the tort of family violence should be considered, analyzed, and proven
Read more about the case here.
3) R. v. Jarvis
The Facts: Ryan Jarvis, a male high school teacher, used a camera pen to secretly film his female students’ cleavage. He was charged with the Criminal Code offence of voyeurism.
To be guilty of voyeurism, Mr. Jarvis must have recorded his students:
- for a sexual purpose, and
- in circumstances in which they had a reasonable expectation of privacy.
The trial judge said it was not clear that Mr. Jarvis had made the recordings for a sexual purpose, so acquitted him. The Ontario Court of Appeal said that was wrong, and that the recordings were for a sexual purpose. But they said that the students had no reasonable expectation of privacy in the school. The Crown appealed to the Supreme Court of Canada.
- How can a gendered lens help the Court understand the effects of voyeurism and other forms of technology-facilitated violence?
- Does a person’s right to privacy stop as soon as they leave their home?
- What kinds of privacy expectations should women, girls, trans and non-binary people be able to have?
- Voyeurism is a highly gendered crime – it is not just a violation of privacy, it also violates a person’s sexual integrity and autonomy
- Women need meaningful privacy rights in public so that they can fully participate in social, cultural, and political life
Read more about the case here.
As we hope this activity demonstrates, GBV advocates and workers have rich expertise that can help illuminate issues that may be complex for those without the experience and knowledge that you have. In the next module, you’ll learn about four ways to participate in FSL, and exactly how you can apply your expertise.