Ricardo G. Federico In The News

Judge who wore Trump hat makes final plea for leniency

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FEATURED: The Globe and Mail | WRITTEN BY: Sean Fine | August 24, 2017

A judge who wore a Donald Trump campaign hat into court on the morning after the U.S. election says he is not the horrible person portrayed in the record 81 complaints to a judicial disciplinary body.

“The man depicted in those complaints is not me,” a calm, composed Justice Bernd Zabel of the Ontario Court in Hamilton told a four-member panel set up by the Ontario Judicial Council. “I’m not a racist, I’m not a bigot. I’m not a misogynist.” He said he had only wanted to “lighten things up with the hat that looked ridiculous on me,” and was shocked by the complaints, which he described as “heard around the world,” and the most unexpected event of his life.

“What I learned was something I thought was humorous can be interpreted in a much different way.”

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The 69-year-old judge, who has 27 years on the bench, agreed with the complainants that he committed misconduct by violating the judicial code requiring impartiality when he briefly wore the hat in court. The question now for the judicial council is whether he deserves a warning, or a suspension, or even a recommendation to Ontario Attorney-General Yasir Naqvi that he be removed. It is believed to be the first case of a Canadian judge whose job is at stake over alleged partisanship.

The panel, which includes two judges, a lawyer and a community member, reserved its decision.

A key issue will be the panel’s interpretation of a comment Justice Zabel made at the end of the court day, which by the description of his lawyer, Ricardo Federico, he did not expect would be picked up on the court’s audio equipment. In response to a prosecutor’s comment about the hat, he said that other judges in the courthouse were “pissed off” Hillary Clinton lost the U.S. election, and that he was the only Trump supporter. » At the disciplinary hearing, he explained he had been “gloating” to his colleagues over having predicted a Trump victory, and was not expressing true support for Mr. Trump.

Linda Rothstein, a lawyer presenting the case against him, challenged Justice Zabel’s interpretation, saying that “he has made a career making sure words matter.” Those words “celebrated” Mr. Trump’s election victory, she said.

She accused the judge of withholding information about the comment, which had not been included in initial news coverage of his conduct that day, when he made a public apology on Nov. 15, and when he made a statement to the Ontario Judicial Council in January. This failure to be upfront aggravated his offence, she said.

“His statement minimized his conduct.” She said the Supreme Court of Canada has described judges as the “pillar” of the justice system, and said they must embody the values protected by the Canadian Charter of Rights and Freedoms.

Another issue is whether wearing the Trump hat was a more serious offence than it would have been to wear a hat of a different political stripe. Ms. Rothstein said it was. She said he had associated himself with a politician who has expressed racist and misogynist views.

“Many if not most Ontarians would view Trump as inconsistent with Canadian values.”

Another issue is whether his stated intention of being funny actually matters. Ms. Rothstein said what counts is how his conduct appears to an objective, reasonable observer. His lawyers, after playing audio showing that at least one lawyer in the courtroom laughed when Justice Zabel entered, stressed that the people in attendance understood he was not being political.

“It would not have been funny, not even by lawyer standards, to laugh at the endorsement of racism, misogyny or bigotry,” said Giulia Gambacorta, his co-counsel.

An issue raised by Mr. Federico in the judge’s defence is whose views matter more – those in the 81 complaints, which included organizations representing black, South Asian and Muslim lawyers, a women’s group, law professors and community members, or those reflected in character references. (Those character references included four from Ontario Superior Court judges, 10 from Ontario Court judges, 34 from lawyers, seven from court staff, five from community members and two from life benchers of the law society.)

Mr. Federico said none of the 10 accused people who came before Justice Zabel that morning complained about the judge’s conduct. And those who know him best, a Hamilton lawyers group, did not complain.

“Justice Zabel is a fantastic judge, a well-loved judge, a man who goes out of his way to help the community, a man who is kind,” he said.

The panel also heard that Justice Zabel received a warning of sorts before he went to court. Outside an elevator, already wearing the hat, he ran into Ontario Court Justice Marjoh Agro. “Are you out of your mind?” she testified that she asked Justice Zabel. She added, “I deeply regret not ripping that hat off his head.”

She said the Hamilton courthouse has been in “havoc” since his “unassignment,” and the death of a colleague. Justice Zabel stopped hearing cases on Dec. 21, including at least one he had started, which now faces an application for a stay over unreasonable delay, Justice Agro said.