Prime Minister Justin Trudeau could face a subpoena to testify as a witness during a trial scheduled to begin this month for a class-action lawsuit seeking reparations for the cultural devastation wreaked by residential schools, court records show.
Lawyers representing 325 First Nations — more than half of all recognized First Nations in the country — are seeking to subpoena Trudeau and Crown-Indigenous Relations Minister Marc Miller to take the witness stand via Zoom and face questions on the sincerity of residential school-related statements they’ve made in the past.
These include statements by both Trudeau and Miller that Canada’s policy on residential schools was to “assimilate.”
“There appears to be a contradiction between what the prime minister has said publicly and the positions that Canada is taking in court,” said shíshálh Nation Coun. Selina August.
“We and the courts need to know what Canada’s actual positions are.”
The shíshálh Nation and Tk’emlups te’ Secwepemc initiated the legal action a decade ago.
Justice Canada to oppose subpoenas
A motion on seeking the subpoenas is expected to be filed by the end of the week, said John Phillips, from the Toronto-based firm Waddell-Phillips, one of three firms involved in the case.
Justice Canada indicated in a letter filed with the Federal Court it plans to oppose the subpoenas.
“Canada’s position is that such subpoenas cannot be granted without leave and that such leave should not be provided in the circumstances,” said the letter, signed by Lorne Lachance, senior counsel with Justice Canada.
However, Miller’s office said in an emailed statement that Justice Canada has not been given any instructions “on how Canada would respond to the issuance of the subpoenas.”
The statement said the federal government is “committed to justice and healing” from the “trauma experienced as a result of residential schools,” which it said was “shameful.”
The Prime Minister’s Office referred to the statement from Miller’s office.
First class action of its kind
The trial is scheduled to begin before the Federal Court in Vancouver on Sept. 12 and run until November. The first phase of the process will revolve around arguments to establish Canada’s liability, and the second phase will focus on damages.
This is the first residential school-related lawsuit seeking reparations from the federal government for the impact residential schools had on Indigenous nations as a whole.
The legal action states Canada benefited from the impact of residential schools, which fractured communities, destroyed culture, suppressed languages and weakened the hold of Indigenous nations over “their traditional lands and resources.”
All previous residential school-era related litigation focused on compensation for harms and abuse suffered by individuals.
The claim for reparations was originally part of a broader lawsuit filed in 2012 by the Tk’emlups te’ Secwepemc and shíshálh Nation in B.C. — along with residential school survivors known as day scholars — who were forced to attend Kamloops Indian Residential School and Sechelt Indian Residential School.
The class-action lawsuit, certified in 2015, was split into two claims — one for day scholars and one for the First Nations seeking reparations — in August 2020. The federal government announced a settlement with day scholars in June 2021.
WATCH | Settlement reached in residential school ‘day scholars’ lawsuit:
‘Canada needs to bear the burden’
Phillips said Trudeau and Miller need to testify because Justice Canada lawyers have refused to confirm or deny whether their statements on the impacts of residential school are true.
“These statements from Trudeau and Miller go directly to the issue of liability,” said Phillips.
“They say that Canada had a policy, they say that Canada’s policy caused damage to the individuals and to the collectives and communities … and Canada needs to bear the burden.”
For example, on June 25, 2021, Trudeau said Canada’s residential school policy “ripped kids from their homes, from their communities, from their culture and their language and forced assimilation upon them.”
On Jan. 27, 2021, Miller said residential schools aimed to “assimilate” and were “layered with a religious fervour … to convert peoples who still have vibrant cultures — in some cases that have been ripped away from them.”
In court filings, the federal government has denied the existence of “a single residential school policy,” and said that any impacts on cultures and languages “were not as a result of any unlawful acts or omissions of Canada or its employees or agents with respect to the operation of residential schools.”
August says her nation lives with the direct impact of the federal government’s actions every day. She said the last of her nation’s fluent Sháshíshálhem speakers have died and all they have left are recordings, a legacy directly traced to residential schools.
“It is going to take up to seven generations to restore all of that. That is how long it took to take it away from us,” she said.
“I don’t know what it’s going to take to make us whole and complete. I just know it will take a long, long time.”