As a refresher, feminist strategic litigation (FSL) is a systems-change strategy that uses the courts and Canada’s legal system to address issues impacting survivors and their communities. For a quick introduction to (or refresher on) Canada’s legal system, watch our Courts 101 series to learn about where laws in Canada come from, what “court” is, and what going to court can look like.
Now, onto what participating in FSL can look like.
There are four ways to get involved in FSL:
- Bringing a case: This means starting a court case.
- Intervening: This means getting involved in a court case as a third party who provides their own perspective on a legal issue(s) being considered.
- Testifying: Testifying is when a witness provides oral or written evidence as part of a legal proceeding. It helps judges and juries to understand the facts in a case
- Supporting a party or intervener: There are many ways to support a party or intervener. You can share your expertise, produce educational resources or social media content about a case, or tell the people you serve or your members about a case or decision.
Here’s an easy way to remember these four strategies: BITS!
- Bringing a case
- Intervening
- Testifying
- Supporting
Next, let’s test your knowledge.
Take a look at these four examples of FSL, and determine what part of BITS they are:
1) More than 20 years ago, the province of British Columbia cut legal aid funding for family law by 60%. An advocacy group of single mothers sues the province of British Columbia and Legal Aid B.C., arguing that the province’s legal aid funding for women fleeing abuse is inadequate and puts them further at risk.
This is an example of bringing a case – where one party starts a court case against another – and is based on a real case.
2) In a human rights tribunal case about a university’s response to sexual violence, a gender-based violence advocate provides a written report on what survivors need in terms of institutional responses and processes.
This is an example of someone providing testimony, in this case expert testimony. The gender-based violence (GBV) advocate is an expert who provides the tribunal with information about how institutions respond to sexual violence and how those responses affect survivors. In this example, the evidence is provided in a written report, but expert evidence can also be presented orally.
3) A court rules that self-induced extreme intoxication (which is different from being very drunk, high, or blacking out in that it requires a person to be so intoxicated that their actions are not something they can control) can be used as a defence in assault and sexual assault offences. The ruling clarifies that drunkenness alone cannot be used as a defence in sexual assault cases. It is misinterpreted by some, and misinformation spreads on social media. A sexual violence organization creates a series of social media posts to counter this misinformation and assure their community that drunkenness cannot be used as a defence in sexual assault cases.
This is an example of providing support by disseminating factual information about a case that impacts survivors. This is a real-life scenario that played out after the ruling of R. v. Sullivan; R. v. Chan (2020) was released. You can see the social media posts that Consent Comes First and LEAF put together on the ruling here.
There are a few other examples of this partnership too:
4) During sexual assault trials, the defence may sometimes have private records related to the complainant (like emails or text messages) that they want to use as part of their case. In 2018, Parliament created rules so that accused persons could no longer surprise complainants with those records. A person accused of sexual assault says the rules violate his right to a fair trial. During the case, a gender-based violence organization gets involved to talk about how the rules are necessary to respond to ongoing harmful myths and stereotypes in the criminal justice system.
This is an example of an intervention. A third party, the gender-based violence organization, gets involved in a court case to provide their perspective on survivors’ experiences in sexual assault cases. Unlike providing testimony, which focuses solely on evidence, interventions include a legal angle or argument that GBV organizations often work with lawyers to formulate. This example is based on a real case.
In our next four modules, we’ll take a closer look at how you can partake in each of the four FSL strategies, or BITS.