Judges make mistakes. Is there a way complainants don't have to pay for them?

Smoldering outrage a week after the mistrial of police officer Doug Snelgrove has advocates demanding change in Newfoundland and Labrador courtrooms.

Last Friday, after the second attempt at a trial ended without a verdict for Snelgrove — who's accused of sexually assaulting an intoxicated woman while he was on duty in 2014 — protesters and women's rights activists began calling for a kinder justice system, one that factors the distress of complainants enduring trials into its decisions.

Those requests are currently being heard in Ottawa.

"In the wake of the #MeToo movement that we've seen over the past three or four years, people are really understanding the need to make the justice system more hospitable and open and welcoming and transparent for people who are survivors of sexual assault," said Arif Virani, MP for the Toronto riding of Parkdale.

Virani is one of the main advocates for legislation tabled in the House of Commons last week. Bill C-3, an Act to amend the Judge's Act, would explicitly require any judicial applicant to take specific training in sexual assault and consent.

Both of Snelgrove's trials so far have been thrown out due to errors made on the bench. Snelgrove was found not guilty in the first trial, but that result was dismissed on appeal because the trial judge had not instructed jurors to consider that Snelgrove may have induced consent through his position of authority as a constable.

In the latest trial, the judge should have dismissed the additional jurors through a lottery system. Instead, he dismissed the last two jurors to be sworn in.

As a result of those errors, advocates have questioned how much importance those in the legal system place on complainants and their wellbeing during a trial.

"The courtroom environment is not a hospitable environment, regardless of the type of case," Virani said in a phone interview.

"It is adversarial. It can be sometimes quite aggressive."

Those traits are required for the exercise of truth-seeking, he said. But as a consequence, they may re-traumatize survivors and deter some from wanting to engage in court procedures.

"That doesn't necessarily make it an inviting place for people that come forward with complaints of any kind. If you throw sexual assault into the mix, something that is very indecent, very tragic, [and] already by definition victimizes the person ... it makes for, oftentimes, a very unpleasant experience."

Defense counsel Randy Piercey, in his closing argument for Snelgrove's re-trial, suggested the complainant had retained a civil litigation lawyer to go after the accused for financial gain, and tried to diminish her credibility by appealing to the jurors' "common sense," claiming people do not attain her testified level of drunkenness from five coolers.

Providing training for judges

While Bill C-3 emphasizes the rights of survivors, some of its contents already exist in Canada.

Federally-appointed judges — including those in the Supreme Court of Newfoundland and Labrador — can already access training on sexual assault, and are required to devote 10 days a year to sharpening their general education.

Each judge is responsible for their own training through the Canadian Judicial Council.

The council told CBC News that new judges have been required to take social context and sex assault training since 2004, and regularly receive refreshers in jury instructions to reduce errors.

Despite the ongoing education, judges still make mistakes, at which point either a trial must be thrown out or an appeal may be launched.

"The appeal process is the proper venue for addressing those errors of law," the spokesperson said.

Federally-appointed judges aren't generally removed from the bench for making mistakes when they apply the law. That would require a vote in both the Senate and the House of Commons.

They also need to preserve their independence and maintain the fundamental principle of justice: the right of the accused to a fair trial. That means, necessarily, following the rules of court proceedings to the letter.

Taking complaints seriously

Legal experts have told CBC that randomizing the jury is essential to that premise, and that the jury in Snelgrove's re-trial had been compromised by the error, leaving the justice little choice but to call a mistrial. It's not clear whether any additional sexual assault training could have altered the outcome.

Virani says Bill C-3 isn't meant to enforce a doctrine on justices or change the principles of law, but to show survivors that courts will take their complaints seriously.

"One of the biggest issues of sexual assault is that there's a vast amount of underreporting," Virani said.

"If we can improve both the appearance and the reality of that environment, and people understand that they will receive an objective and fair hearing from people that are fully conversant in the most recent status of the law — that can help to encourage people to come forward with what they believe is a valid claim."

Of every 1,000 sexual assaults in Canada each year, the vast majority of which are not reported to police, only six are prosecuted, according to data from a 2012 University of Ottawa study.

"If people aren't coming forward," Virani said, "then one, we don't know the nature of the problem, the true scope of the problem. And secondly, we're not actually providing justice and a remedy for people that deserve one."

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