An Ontario Court justice who wore a Donald Trump-inspired “Make America Great Again” ball cap to court has since apologized, but many are arguing that it’s not enough.
“It seems entirely inappropriate for a judge to make such a display in a Canadian courtroom, and in particular because his actions appear in support of Donald Trump’s win as president and that on its own would be problematic — to just bring partisan politics into the courtroom — but to associate yourself with someone who has become so associated with Islamophobia and misogyny and racism is another level,” says Kim Stanton, legal director of LEAF, the Women’s Legal Education and Action Fund.
“If you were to appear in front of him in court whether as a litigant, as an accused person, as a witness or as counsel, you would have to wonder whether he can adjudicate in an unbiased manner.”
On Nov. 14, five days after Justice Bernd Zabel entered the courtroom wearing the red hat with the campaign slogan used by president-elect Donald Trump in the recent U.S. election, LEAF submitted a letter of complaint to the Ontario Judicial Council.
Beyond appropriate sanctions for Zabel, Stanton says LEAF hopes the OJC will also ensure there is broader judicial training to restore the public’s trust in the judicial system.
“When the public sees a judge acting in a way that does not comport with impartiality, it really does hit the confidence of the public in the justice system,” she says. “We want the judicial counsel to take this seriously with an eye to addressing this loss of confidence."
Emmett Macfarlane, assistant professor, department of political science at the University of Waterloo, calls Zabel’s decision “profoundly foolish and inappropriate” and says it warrants the condemnation it has received.
“Whenever we talk about judicial independence, it’s about shielding or protecting judges and the judiciary from politics or political criticism, and we don’t sufficiently recognize that judicial independence is truly a two-way street,” he says.
If society is expected to buy into the notion that judges are neutral arbiters of the law, they can’t engage in this kind of behaviour, he adds.
“This is almost mind-blowing that this judge could even entertain this let alone follow through on doing something so silly.”
Zabel has since apologized for his actions in a statement in a courtroom in the John Sopinka Courthouse Tuesday morning, calling it a “misguided attempt to mark a moment in history by humour in the courtroom following the surprising result in the United States election.”
He said wearing the cap was a “lapse in judgment” and his intention was not to make a "political statement" or an endorsement of Trump’s controversial views.
"I apologize for any offence or hurt caused by my thoughtlessness," he said.
But for Stanton, while she acknowledges it’s important he acknowledges his actions were not appropriate, she says that’s not enough — and she’s not surprised he would apologize now given that there are complaints being made to the judicial counsel. She says LEAF has no intention of withdrawing its complaint and adds it’s incumbent upon the council to consider it regardless of the apologies.
“As with other aspects of equality law, the question isn’t really what the person intended when they acted in a concerning way, but the question is what was the impact of their action on the people in the courtroom.”
Macfarlane agrees the behaviour warrants some form of sanction, but he notes that if Zabel doesn’t have a track record, he doesn’t agree with those calling for his removal from office. He says that it is harsh for a one-off incident, but he adds that some official response is important because it’s not just about punishing one judge but about “making clear to the legal profession and society more broadly about why this is inappropriate and why judicial independence is important going both ways.
“Even if it was a plain cap with no logo or lettering, it would have been at a minimum odd but to a degree inappropriate,” he says. “If a lawyer walked in to a courtroom to speak before a judge wearing inappropriate attire, they could face sanction. The fact that it’s a cap of a political nature just exacerbates how absurd and problematic it is.”
The OJC is receiving a number of complaints, including one from the University of Windsor’s law school. David Tanovich, a law professor at the university, and 26 of his colleagues made a formal complaint on Nov. 15.
Stanton says she anticipates it will take a while for the judicial council to review the information from the multiple complaints and come to a decision regarding further action.
