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Mississauga First Nation made history this week by successfully prosecuting its own laws in provincial court — earning a trespassing conviction against an alleged drug dealer who repeatedly disregarded an order by chief and council to stay off the reserve.
Roberta Witty of Blind River, Ont. pleaded guilty to two counts of trespassing and a single count of failing to comply with an order in council during a hearing in Elliot Lake Wednesday. Witty — who is not a member of Mississauga nor a status Indian under the Indian Act — has also been slapped with fines totalling $1,000 made payable to the First Nation for violating its Land Code and Community Protection Law.
“It’s a step in recognizing our laws that have been developed for the First Nation,” said Chi-Naakinagewin Director Wilma Bissiallon, who leads Mississauga’s constitution department.
Witty was initially sent a letter by Mississauga First Nation in February 2020, advising that her right to be on reserve was rescinded in accordance with its Community Protection Law.
“She continued to be on our First Nation, and it was as if she just disregarded everything. This has been going on for a couple of years, where we have been trying to get her off the reserve,” Bissiallon said.
In 2022, Mississauga First Nation made a successful application to the Prosecution Pilot project offered by the Ministry of the Attorney General and Justice Canada, which provided one-time funding to First Nations in order to retain legal counsel to act as private prosecutors in the enforcement of First Nation laws.
Mississauga then retained Jay Herbert of Falls Law Group, a law firm based in Bracebridge, Ont., to prosecute its case. Herbert advised First Nation staff to compile evidence and enter into what’s known as a pre-enquete, a court hearing where a presiding judge or justice determines whether a case has been made.
The matter subsequently proceeded as a private prosecution — a process where a party attempts to have another party charged and brought before court through reasonable grounds — with the case against Witty being heard in the Ontario Court of Justice this past June.
Speaking with SooToday Friday, Herbert said First Nations throughout Canada often have “great difficulty” in getting police to enforce their laws. And having laws without enforcement, he added, leads to difficulties with governance.
“With this decision, which was brought based on a private prosecution, First Nations now have confirmation that they can use the private prosecution process, which allows them to bring their law before an Ontario Court of Justice and get convictions on their trespass laws,” said Herbert. “This law was specifically related to a land code, so now any land code First Nation can use this as a precedent to say, we passed laws related to our land code to control trespass — and hopefully, use that to get enforcement by police. But if not, they can bring their own prosecutions.”
Herbert said the successful court case, resulting in the banishment of an alleged drug dealer, now brings First Nations to a “new area of enforcement.”
“It is telling not only law enforcement, but other First Nations, that enforcement is a possibility,” he said. “And I know for many First Nations for several years, they’ve been told enforcement is not a possibility — so I think this is a huge step forward for First Nations.”
Mississauga First Nation has been approved for a second round of funding for 2025, made possible through the Tripartite Collaborative Technical Table on the Enforcement and Prosecution of First Nations Laws.
“One of the things that we are hoping to do is create better relationships, not only with the court system, but we are also looking at putting a process into place so that it’s a lot easier for First Nations to go forward with their laws being recognized in the courts, and by the province,” Bissiallon said.
Another trespassing case that’s being prosecuted by Mississauga First Nation is currently before the courts. A bench warrant was issued after the accused failed to attend a scheduled first appearance.