Sanctions For Trump Hat In Courtroom 'Appropriate'

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The Lawyer's Daily


The hat that launched 81 complaints has led to a 30-day suspension without pay for Justice Bernd Zabel of the Ontario Court of Justice.

A four-person panel of the Ontario Judicial Council recommended the sanction Sept. 11 after an outcry surrounding Justice Zabel's decision to wear a red “Make America Great Again” hat to court the day after the election of U.S. President Donald Trump.

The hat was widely worn by supporters of Trump during last year’s presidential election. Justice Zabel said he wore the hat “as a joke” to mark a moment in history.

Of the resultant 81 complaints, nine came from legal organizations: the Women’s Legal Education and Action Fund (LEAF); the Ontario Bar Association; the Canadian Association of Black Lawyers (CABL); the Criminal Lawyers’ Association (CLA); the South Asian Bar Association of Toronto (SABA); the Canadian Muslim Lawyers Association (CMLA) jointly with the Canadian Association of Muslim Women in Law; the Rights Advocacy Coalition for Equality (RACE); the HIV & Aids Legal Aid Clinic of Ontario (HALCO) jointly with the Canadian HIV/AIDS Legal Network; and the Roundtable of Diversity Associations (RODA).

“The complainants state that Justice Zabel has associated himself with those views by his conduct and that women and members of various vulnerable groups would reasonably fear that they would not be treated fairly and impartially by Justice Zabel,” the panel said.

“[But] Justice Zabel insists that he did not intend to indicate his support for Donald Trump. He testified that he was trying to make a joke about a result few had expected and that he was not expressing support for Trump, but rather celebrating his prediction that Trump would win the election.”

The panel said the “appearance of impartiality is to be assessed from the perspective of a reasonable, fair-minded and informed person.”

“What would a reasonable member of the public think upon seeing Justice Zabel entering the courtroom wearing Trump’s signature red hat and state that he did so in celebration of an historic event?” the panel asked. “In our view, and indeed as Justice Zabel now acknowledges, a reasonable member of the public would think Justice Zabel was making a political statement and endorsing Trump’s campaign.”

Justice Zabel was appointed to the Ontario Court of Justice on April 2, 1990 and has served as a judge in Hamilton for 27 years. Prior to his appointment to the bench, he practised criminal and family law for 11 years. The panel noted there have been no previous findings of judicial misconduct against him and he is considered to be a "valued, hardworking, fair-minded and impartial judge."

“On the one hand, Justice Zabel’s conduct on Nov. 9 was a serious breach of judicial ethics,” the panel said. “On the other hand, it is difficult to imagine how or why a judge of Justice Zabel’s experience and record of service conducted himself as he did and there appears to be no risk that he would ever be motivated by any of the political views that he appeared to endorse.”

The panel then imposed what it called "the most serious sanction permitted by law short of removal from office” — a suspension of 30 days without pay.

“Combined with the suspension, we also reprimand Justice Zabel for his breach of the fundamental principle of judicial conduct that judges should refrain from conduct that, in the mind of a reasonable, fair-minded and informed person, could give rise to the appearance that the judge is engaged in political activity,” the panel said.

Justice Zabel’s counsel, Hamilton lawyer Giulia Gambacorta, said the judge made a mistake and has been “remorseful and truly contrite from the first day he received word about the public reaction to his behaviour.”

“The first day he had the opportunity to come back to court he gave a full public apology,” she said. “It’s been the biggest public reckoning of his career.”

Gambacorta said Justice Zabel was “floored” with the reaction to his actions, particularly at being labelled racist and misogynistic.

“Those are not his attributes and it’s unfortunate he put that target on his head by wearing that hat,” she said. “It just shows the fallibility of everyone, including judges. They make mistakes too.”

Faisal Bhabha, an associate professor at Osgoode Hall Law School who has done research into legal ethics, agreed that sanctions should have been imposed against Justice Zabel, saying a judge shouldn’t be politically partisan in a courtroom “period.”

“Judges are human and are free to take political positions. It’s what they do with those positions that matters,” he said. “You’re definitely not supposed to display them in a courtroom. It’s not just improper in terms of their personal integrity, but also in terms of the way it raises the perception and risk of actual bias.”

Although the council had the option of removing Zabel from the bench, Bhabha said such a move would have been “too extreme.”

“I don’t take a strong view on if 30 days was appropriate, give or take some other amount,” he said. “I don’t think the punishment itself matters as much as what it represents. And a one-month suspension without pay is a pretty serious censure and an appropriately serious sanction for a real lapse of judgment.”

Stephen Pitel, a professor at Western University School of Law, said he did not believe a reprimand by itself would have been sufficient in Justice Zabel's case, but agreed was “very unlikely” they would have recommended removal.

“So they were left with some variant of a reprimand plus some financial component,” he said. “And that’s what they’ve done with the 30 days.”

Pitel said he was “heartened” by the fact the panel said it had to mindful Justice Zabel’s action was a “single incident from a judge who otherwise has a clean record over a long period of time.”

“That suggests they’re right about not thinking about recommending removal,” he said.

The panel in its decision noted many of the complainants felt Justice Zabel's conduct “represented an unacceptable expression of partisan political views by a judge. Most complainants indicate a heightened concern as they perceive many of the things Trump said during his campaign to indicate misogynistic, racist, homophobic, and anti-Muslim attitudes.” But Bhabha said making a reference to the perceived themes of the Trump campaign led him to worry about “sliding into a judicial ethics evaluation of the content of a message.”

“I worry that kind of reasoning tracks way too closely to the logic of the reasoning behind the proposed law in Quebec that would ban judges from wearing so-called religious symbols,” he said. “If a group of people hates what a Trump hat represents and that’s enough to sanction a judge, what happens if a significant number of people hate what a hijab represents?”

Bhabha, who does not necessarily agree the slogan “Make America Great Again” is by itself a hateful one, said he believed discipline would also have been appropriate if Justice Zabel had worn a shirt supporting former president Barack Obama after the 2008 U.S. presidential election.

“The point is a judge doesn’t have a right to express political views in a courtroom while performing his duties,” he said. “This judge got too comfortable in his office and so for that reason I do think the discipline is appropriate.”

In its decision, the panel said maintaining confidence in the judiciary is "essential to our democratic form of government."

“The separation of politics from the judiciary is a cornerstone of the rule of law and our democratic system of government,” the panel said. “One of the most basic and fundamental principles of our justice system is that the judiciary is independent from politics. Judges must at all times remain above the political fray and they must conduct themselves so as to avoid any perception that the administration of justice will be influenced by their political views. Citizens must feel secure the judge will decide their fate according to the law.”

Pitel said “there’s no doubt in mind that [conduct such as Justice Zabel's] does actually cause members of the Canadian public to think less of the judiciary and the administration of justice.”

“We do not want judges engaged in any kind of partisan political activity and we have very strong reasons for saying that,” he said. “And I think absolutely the sanction goes toward remedying that, largely because of the alternative. I think it would say very poor things about our administration of justice if we didn’t act on the complaints that are brought and impose some measure of sanction.”

The Ontario Judicial Council hearing panel on Justice Zabel was led by Justice Robert Sharpe of the Ontario Court of Appeal, alongside Justice Leslie Pringle of the Ontario Court of Justice, lawyer Christopher D. Bredt of Borden Ladner Gervais LLP and community member Farsad Kiani.