On November 15, Justice Zabel issued the following apology:
“What I did was wrong. I wish to apologize for my misguided attempt to mark a moment in history by humour in the courtroom following the surprising result in the United States election…I apologize for any offence or hurt caused by my thoughtlessness,”
“As troubling as the initial conduct was, the apology that followed appeared sincere, insightful and reflective on the importance for judges to remain non-partisan to any political leanings. For me, that apology restores the confidence required of a judge to preside over cases for all Ontarians.”
However, On December 3, 2016, the Toronto Star reported: “Judge who wore Trump hat declared support for Republican candidate in court”. In referring to a certified Court transcript, Justice Zabel is quoted as saying, and in stark contrast to his subsequent apology:
“Brief appearance with the hat. Pissed off the rest of the judges because they all voted for Hillary, so. I was the only Trump supporter up there but that’s okay,”
Not only was the original act of wearing the Trump hat shocking, unprecedented, and entirely unacceptable for a Court (as stated in my original post below). It now appears at incompatible odds with his apology that followed.
If so, this is particularly offensive and aggravating to the Justice’s behaviour who, in his apology, appears to have deflected his behaviour as a joke and far-removed from a deliberate political statement in Court.
It is offensive to many, including me, who took his apology at face value that was buttressed by his inherent credibility as a Justice of the Court. I now look forward to the investigation that will no doubt be ramped up in light of this most recent discovery.
More than ever, it seems very clear that this action cannot be condoned and the Justice should consider resigning if the reports are true. If not, it is incumbent upon the Judicial Council to take appropriate measures to restore the confidence required of our Courts.
Here is my original post on why:
Justice Zabel and the Trump Hat in Hamilton (Original post):
On Wednesday morning, while millions of Americans were coming to terms with what the election of Donald Trump as their President meant, Justice Berdt Zabel strolled into an Ontario Court as he has done for decades after the clerk’s enunciated order to “All rise!”
But today was different. Instead of the stark, and revered attire of the Ontario Court of Justice, Justice Zabel adorned a “Make America Great Again” hat prominently and provocatively atop his head — the bright red symbol that many have come to fear and loath, complemented his red sash that otherwise symbolizes the gravitas, independence, and impartiality of our judiciary.
This was not an act of freedom of expression. This was not a celebration. This was a bright red middle finger to the idea of judicial independence from political influence from a judge who entirely disregarded known and required conventions for a properly functioning justice system.
All Canadians, including judges, have the right to express their opinions and beliefs as citizens, residents, and even visitors to our country.
However, this does not mean that we may say anything we wish, at all times, without consequence. Like all freedoms, there are limits and balances.
There are few, if any, roles in society where this is as important as it for judges acting under the authority and power of the Court. We each have a right to freedom of expressions as individuals; but we all have a constitutional right to an independent and impartial court or tribunal.
As such, judges true to their vows and role do everything in their ability to ensure that those that come before them are met with the appearance of impartiality, of fairness, and lack of political influence.
There is a constitutional duty to ensure that justice not only be done, but also manifestly be seen to be done. Justice is as much about the appearance of fairness, as the effect itself.
Having freedom of expression does not permit a judge, acting in that capacity, to wear a Trump hat any more than it does to wear an “I’m With Her” t-shirt, a “Real Change” button, or an NDP scarf. Politics has no place in Canadian courts by the very function it serves.
Yet His Honour’s political statement exacerbates all of this further when considered in the context of the Trump campaign.
It was a campaign dismissive of sexual violence and misogyny. Dismissive of truth, fact finding, and rational debate. Enabling and encouraging of xenophobia and incitement against particular ethnic and religious groups.
In essence, the campaign’s ethos ran counter to the very values the judges of the Ontario Court of Justice vow to protect and uphold.
So how the does a Muslim charged with a crime come before this judge with the mindset of receiving a fair trial? How does a victim of sexual assault feel on the stand testifying before him? How does a Latin agriculture worker plead to fashion a sentence that does not result in deportation should they find themselves convicted before him?
How does a woman lawyer feel making valid legal arguments in the face of a hat that silently retorts “nasty woman”?
Justice Zabel may have seen this as an act of defiance, or perhaps a tip of the hat to a movement that was long in the shadows.
Yet to me, this was an act of cowardice. An act that was fundamentally unbecoming, entirely uncharacteristic, and entirely unprecedented in the Ontario Court of Justice. It was a political whimper, in a non-political forum, where dissent is met with an implied threat of jail for contempt. It therefore comes at no surprise, that no one else felt the inclination to express their right to political views at that time.