For over twenty years, Canadian courts have been prepared to order the Crown to fund the cost of retaining a lawyer to defend an unrepresented defendant at trial. The basis of these orders is that, in some exceptional cases, an unrepresented defendant’s Charter right to a fair trial will be infringed if the defendant is required to proceed to trial without the assistance of a lawyer. Known as Rowbotham orders (reflecting the name of the case in which this type of relief was first ordered), to this point they have been made when a defendant is facing a lengthy and/or complicated trial involving serious criminal charges and, although the defendant may have limited financial resources, the defendant is not entitled to receive legal aid.

The recent decision of the Alberta Provincial Court in R. v. Nason has the potential to expand the availability of Rowbotham orders. In Nason, the defendant is charged with provincial or regulatory Securities Act offences. If convicted, he is exposed to substantial fines and the risk of incarceration. On February 14, the trial judge accepted the defendant’s argument that, in order to obtain a fair trial, he required the assistance of a specialized securities lawyer (just not a “criminal lawyer”) at a cost that could be $50,000. He stayed the prosecution until state funding is paid into the securities lawyer’s trust account for the defence of the defendant.

What is novel in Nason is that the alleged offences, although serious in the sense of the defendant’s potential exposure if convictions are registered, are regulatory, not criminal.  In considering applications for Charter relief, that distinction has not been taken as insignificant by the courts, even though many regulatory offences expose a convicted defendant to the risk of incarceration in the same way as a conviction for a criminal offence. Convictions for criminal offences require a higher degree of moral blameworthiness than in the case of regulatory offences. That is because of the greater stigma associated with a criminal conviction in comparison to one for a regulatory offence. One large consequence of the distinction is that the courts have hesitated to apply Charter protections with the same force in regulatory prosecutions as they have in criminal proceedings. Perhaps the best example of that is the Supreme Court’s justification for the reverse onus inherent in regulatory offences requiring a defendant to disprove the presumed fault element (negligence) by establishing that it took all reasonable care, even though the reverse onus is accepted to infringe the presumption of innocence, protected by the Charter. In Nason, however, there is no mention of the distinction.

One would expect the Crown to seek a review of the trial judge’s decision. To let it stand unchallenged will expose the Crown to similar applications in a variety of  specialized regulatory settings, including environmental and workplace safety.

Here is a copy of the decision: (2014abpc33)