Dear CMLA Members
Re: Disciplinary Ruling Regarding Justice Zabel
This is a case summary and comment in relation to the Ontario Judicial Council Disciplinary Ruling released September 11, 2017 concerning Justice Zabel of the Ontario Court of Justice, Central West Region.
81 complaints were filed to the Ontario Judicial Council regarding Justice Zabel including by the CMLA.
The complaints filed originated from public interest organizations, law professors, lawyers, paralegals, and members of the public. In addition to the CMLA, nine complaints came from other legal organizations including LEAF; the Ontario Bar Association; the Canadian Bar Association of Black Lawyers; the Criminal Lawyers’ Association; Rights Advocacy Coalition For Equality; South Asian Bar Association of Toronto; the HIV & Aids Legal Aid Clinic of Ontario jointly with the Canadian HIV/AIDS Legal Network; and the Roundtable of Diversity Associations.
The complaints were in response to the following incident. On November 9, 2016, the day after the United States presidential election, Justice Zabel went into criminal court in Hamilton wearing a red “Make America Great Again” baseball hat, the campaign signature of Donald Trump. After the clerk registrar announced that court was in session, Justice Zabel stated: “Just in celebration of a historic night in the United States. Unprecedented.” He took off the hat and placed it on the dais with the phrase on the hat visible to those in the courtroom. There were several matters on the criminal case docket that were to be dealt with that day. Later in the day after the lunch break, Justice Zabel returned to the bench without the hat. When asked by the Crown about the hat, he responded “Brief appearance for the hat. Pissed off the rest of the judges because they all voted for Hillary, so [sic]. I was the only Trump supporter up there, but that’s okay.” 
The Judicial Council noted that the common theme of the complaints is that “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. 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.”
At the hearing, Justice Zabel stated that by wearing the hat he was trying to make a joke about an election result few had expected and that he was not expressing support for Trump. Instead, he was celebrating his prediction that Trump would win the election. He was also apologetic and claimed that he did not share any of the discriminatory views of the Trump campaign.
However, the Council held that Zabel J.’s intentions were only one part of the analysis. The objective effect of his conduct also had to be considered in whether there was a breach of conduct expected for a judge:
While Justice Zabel’s intentions are relevant, his conduct must be measured by an objective test. As the Canadian Judicial Council states at p. 27 of its Ethical Principles for Judges: “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 enter the courtroom wearing Trump’s signature red “MAKE AMERICA GREAT AGAIN” hat and state that he did so “in celebration of an historic event”? In our view, and indeed as Justice Zabel himself now acknowledges, a reasonable member of the public would think that Justice Zabel was making a political statement and endorsing Donald Trump’s campaign.
On September 11, 2017, the Council held that Justice Zabel’s conduct breached the Principles of Judicial Office and Judicial Ethics. After considering his prior good character and track record as a jurist together with the aggravating features of his misconduct, the Council imposed a disposition of 30 a day suspension. The Council also considered that Justice Zabel had been suspended with pay since December 2016.
The Council’s ruling and disposition reflect that the collective complaints of judicial misconduct were objectively valid. The reasons also demonstrate an acknowledgement that the Trump hat and its symbolism has no place in our Courts.
The disposition balances the judge’s prior good conduct, apology, and pro-active remedial steps with the need to specifically deter and penalize this type of misconduct.
However, the ruling and disposition misses the mark in at least one critical area.
There is an important social context and aggravating feature that was not identified by the Council in their ruling. The criminal justice system already has a broader problem with systemic discrimination against visible minorities. Second, Islamophobia is rampant in both America and Canada.
Justice Zabel’s misconduct may have added to these problems. As a criminal jurist, Justice Zabel is responsible for making life altering decisions for individuals that appear before him concerning Charter rights, guilt or innocence, and whether to impose jail terms and related punitive orders.
A criminal judge that openly supports in a court of law a presidential candidate that engages in blatant discriminatory conduct against numerous groups should not be able to resume his duties after a 30 day suspension. Specific to our community, we should not forget that candidate Trump’s discriminatory conduct included calling for a Muslim ban on immigration and a database to track Muslims in America.
Even if Justice Zabel’s specific intent was not to support the candidate’s discriminatory platform, his misconduct was negligent and creates an appearance of bias that results in a long term loss of confidence by at least some counsel, clients, and members of the public that will inevitably appear before him.
Lawyers and clients that are the target of the Trump campaign and administration’s discriminatory platform may have a continuing basis to be concerned that Justice Zabel may not be impartial, even on a subconscious level. Likewise, they may have a valid basis to be concerned that there continues to be an appearance of bias to a reasonable observer, mindful of the social context.
The issues are complex and it will be up to counsel and their clients to determine the best manner to deal with this issue moving forward.
Unfortunately, this may not represent an isolated incident moving ahead. It is important to remain vigilant in protecting clients’ rights in the face of any appearance of bias. It is also important that our members continue to stand up for their own rights to be treated equally.
Overall, our membership should continue to work together. Please contact us if you have concerns about judicial misconduct in the future that you believe we may be able to assist with.