David M. Tanovich is a professor at the Faculty of Law, University of Windsor
According to media reports, Justice Bernd Zabel appeared in his courtroom in Hamilton last week wearing a "Make America Great Again" hat. He told all those present that he was wearing the hat – a key symbol of Donald Trump's presidential campaign – because "last night was an historic event." According to one observer, he "took the hat off and put it on the bench so everybody could look while he conducted his court business. … It was sitting on the bench." By doing so, he signaled to all that it was now part of his courtroom and a symbol of his judicial power and attitude.
By engaging in this conduct, Justice Zabel was making a clear political statement. Indeed, his stated purpose was to celebrate an "historic event." It violated one of the most basic rules of judicial ethics – the prohibition on partisan political activity. As Principle 3.2 of the Ontario Judicial Council's "Principles of Judicial Office" states judges "must not participate in any partisan political activity." As the Canadian Judicial Council's "Ethical Principles for Judges" observes, "a judge who uses the privileged platform of judicial office to enter the political arena puts at risk public confidence in the impartiality and the independence of the judiciary." Justice Zabel's celebration of this "historic event" took place in his courtroom creating an even stronger appearance of conflict with the obligation to maintain integrity and impartiality.
What political statement was Justice Zabel making? As a Canadian who could not be said to have benefited politically or economically in any way from Mr. Trump's victory, the judge was really celebrating and endorsing the "historic" triumph of Trump values. But perhaps more fundamentally, regardless of his intent, the reasonable perception out there is that he has brought Trump values into a Canadian courtroom.
Mr. Trump's campaign slogan "Make America Great Again" has become synonymous with bigotry and hate; with white supremacy and the KKK; and, with misogyny and violence against women. Trump values also represent a repudiation of the rule of law. There are many examples of this including his attack on the impartiality of Judge Gonzalo Curiel because of his Mexican heritage; his plan to deport millions of individuals to Mexico; to ban Muslim immigrants; and to document all Muslim Americans.
Using a symbol of a political campaign that has become synonymous with intolerance, violence and repudiation of the rule of law as part of your judicial attire and on the judicial bench violates virtually every principle of judicial ethics. It is a shocking and flagrant breach of the judicial oath and duty to "establish, maintain, encourage and uphold high standards of personal conduct and professionalism so as to preserve the independence and integrity of their judicial office and to preserve the faith and trust that society places in the men and women who have agreed to accept the responsibilities of judicial office." ("Principles of Judicial Office")
By bringing Trump values into his courtroom, Justice Zabel has caused significant harm to the integrity and repute of the administration of justice in Ontario. It is conduct that has the potential to irreparably shake public confidence in the judiciary if not properly addressed. It sends a chilling message to sexual assault survivors in his jurisdiction and to the diverse population of his region including the many seasonal agricultural workers who are from Mexico. It also sends a chilling message to his female and racialized colleagues. This is particularly so given Mr. Trump's attack on Judge Curiel. This is something that judges in Canada have had to face over the years with explicit challenges to their competency based on their race or gender.
Justice Zabel's conduct has created a reasonable perception that a litigant, witness or lawyer from an equality-seeking group will not receive a fair and impartial hearing. The 2012 case of R v Blesic, where Justice Zabel refused to label the assault of a Sikh man that was accompanied by a threat to desecrate his turban as a hate-motivated crime, is further evidence of this concern.
On Tuesday, more than 20 of my colleagues and I at Windsor Law will be filing a complaint with the Ontario Judicial Council. We call on the council to issue a strong condemnation of Justice Zabel's conduct and to impose a penalty commensurate with the seriousness of his conduct and the degree of harm that it has caused to the administration of justice, to the public and to future parties that will appear before him.