Interveners before the Supreme Court of Canada (SCC or the Court) take on an important yet delicate task. Their role is to bring a unique and helpful perspective to the issues before the Court without introducing new legal issues or supplementing the evidentiary record. Seeking leave to intervene can thus require strategic choices about whether and how to press at the edges of an appeal.

Both the promise and perils of intervention are readily apparent when interveners make submissions about the social context of an appeal, including the prevalence of systemic discrimination. Such interventions have contributed to the development of the law to better reflect and account for social realities, though there is still a long way to go. However, they also run up against the prohibition on expanding the scope of the appeal, especially where they invite the Court to consider lived experiences and structural harms that are not well captured by the appeal record or existing case law.

West Coast LEAF is part of a rich tradition of Supreme Court of Canada interveners who navigate these tensions while advocating on behalf of equality-seeking groups. For more than a decade, West Coast LEAF has been intervening before the SCC, as well as before British Columbia’s courts and tribunals, to address the impacts of the law on the substantive equality of people who experience gender-based discrimination. Our mandate means that we cannot shy away from situating legal issues within their gendered social context, even where this context was not squarely raised by the parties to the litigation. Instead, we see our efforts to contextualize appeals as integral to our feminist perspective on how the law should develop and be understood. While the impacts of our intervention work can be difficult to measure, the SCC has repeatedly affirmed the relevance of social context to questions of law. Further, it has a long history of taking up equality considerations raised by interveners, including in its recent family law decisions Michel v. Graydon, 2020 SCC 24, Colucci v. Colucci, 2021 SCC 24, and Barendregt v. Grebliunas, 2022 SCC 22.

As West Coast LEAF’s understanding of the intersectional dimensions of substantive gender equality has evolved, so too has our approach to intervention. In crafting our submissions, we now consider the ways in which a gendered social context encompasses multiple and intersecting axes of marginalization, including Indigeneity, race, immigration status, disability, sexual orientation, gender identity, age, and socioeconomic status. However, we must also remain mindful of our ability to breathe life into an intersectional legal analysis without supplementing the evidentiary record. We continue to grapple with questions of how to raise intersectional experiences without allowing the constraints on our role to flatten or distort them.

West Coast LEAF’s approach to intervention also reflects an evolving understanding of our responsibilities toward our communities. Given our privileged voice within the legal system, it is incumbent upon us that we do not make assumptions about the interests or experiences of those most affected by gender-based discrimination. It is equally important that in avoiding this misstep, we do not render their lives overly abstract. Our most effective advocacy is therefore community-engaged advocacy. Achieving this goal, however, is a long-term process. West Coast LEAF’s legal team is actively working to build and deepen our relationships with our community members, including through participating in grassroots advocacy coalitions. We are also prioritizing joint interventions with frontline organizations that bring an “on-the-ground” perspective to our submissions.

Intervening before the SCC often feels like walking on a tight rope, and finding the right balance can be elusive. However, West Coast LEAF remains committed to making the law more alive to lived realities one 10-page factum and 5-minute submission at a time.