America Stop Your Whining – EH!

A Hamilton, Ontario judge who wore a pro-Donald Trump Make America Great Again hat to court has been suspended for 30 days without pay.

A four-member discipline panel of the Ontario Judicial Council also ordered Tuesday that Ontario Court Justice Bernd Zabel be reprimanded.

He has not been hearing cases since December.

“He’s looking forward to getting back to work, and serving his community and dealing with the backlog (of cases) in Hamilton,” said Zabel’s lawyer, Ricardo Federico.

The panel heard last month that 81 complaints had been filed against Zabel, who wore the hat briefly to court the morning after the U.S. election.

Many of the complainants expressed concern that his actions would leave individuals from marginalized communities wondering if they could get a fair hearing before Zabel.

“Any display of political or ideological affiliation while presiding in a court proceeding is antithetical to the modern and informed view of the role of the judiciary,” wrote the president of the Criminal Lawyers’ Association, Anthony Moustacalis, in a complaint.

“The fact that the particular politic in issue is perceived by some members of the public to be inconsistent with values and principles that are the bedrock of the administration of criminal justice in Canada only aggravates the situation.”

He also said in court that it “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.”

Zabel later apologized, saying the hat was an attempt at humour, and that he is not a Trump supporter.

He told the discipline hearing last month that what he meant by his comments in court was that all the other judges thought Hillary Clinton would win the presidency, but he was the only one who correctly predicted Trump.

An unblemished 27-year record, until now

On top of the complaints, the council also received 63 letters of support about Zabel from his judicial colleagues, members of the bar, court staff and members of the public. Zabel has been a judge for 27 years, and has never been the subject of any Ontario Judicial Council hearings.

“Justice Zabel is praised for his hard work, professionalism, integrity, and for being helpful to other judges and to counsel,” the decision reads.

Duff Conacher, a law and political science professor at the University of Ottawa and co-founder of the advocacy group Democracy Watch, said that Zabel’s penalty feels appropriate, given his decades of service without complaints or appearance of bias.

“Though I would like to see him suspended for longer,” Conacher said. “Our system of government is based on having independent judges. It is fundamental to our democracy.

“If he had worn a Justin Trudeau hat, I think reaction would have been just as strong.”

“But I don’t think that it justified firing.”

Many on social media have complained that the outcry surrounding the baseball cap incident would not have been as extreme had Zabel worn a hat aligned with a different political stripe — but Conacher says he doesn’t buy that argument.

With police officers stationed outside the hearing room, the panel heard that Zabel purchased five of the hats on Amazon in June 2016 as “historical memorabilia” when it became clear that Trump would clinch the Republican nomination for president.

He gave four to friends, and kept the fifth for himself and wore it briefly in the judges’ common room, where he said his colleagues laughed.

After having had only a few hours of sleep following Trump’s surprise win as president, Zabel made his way into courtroom 208 at the Hamilton courthouse on Nov. 9, wearing the hat “to lighten the proceedings.”

But before going down in the elevator, he ran into his colleague, Justice Marjoh Agro, who testified at the discipline hearing Wednesday that she said to him: “Are you out of your mind?”

marjoh-agro[1]
Justice Marjoh Agro, who testified at Justice Bernd Zabel’s discipline hearing Wednesday, said she regretted “not ripping that (Trump) hat off his head.”

“I remember the day all too well because frankly, I regret not ripping that hat off his head,” Agro testified, looking directly at Zabel, seated with his lawyers.

Zabel said he regretted not taking Agro’s words to heart before going into the courtroom. The panel heard he wore the hat for about a minute in the courtroom, eliciting laughter from lawyers, and then placed it on the dais in front of him. Zabel said he took it back up to his chambers at the morning break.

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