Law Times

Law Times • November 21, 2016 Page 3 www.lawtimesnews.com Judge's Trump hat sparks complaint to judicial council BY MALLORY HENDRY Law Times A n Ontario Court jus- tice who wore a Don- ald 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 inappro- priate for a judge to make such a display in a Canadian court- room, and in particular because his actions appear in support of Donald Trump's win as presi- dent and that on its own would be problematic — to just bring partisan politics into the court- room — but to associate yourself with someone who has become so associated with Islamopho- bia and misogyny and racism is another level," says Kim Stan- ton, 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 unbi- ased 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. elec- tion, LEAF submitted a letter of complaint to the Ontario Judi- cial Council. Beyond appropriate sanc- tions 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 re- ally 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 politi- cal science at the University of Waterloo, calls Zabel's decision "profoundly foolish and inappro- priate" and says it warrants the condemnation it has received. "Whenever we talk about ju- dicial 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 be- haviour, 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 fol- lowing 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 "po- litical statement" or an endorse- ment of Trump's controversial views. "I apologize for any offence or hurt caused by my thoughtless- ness," 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 sur- prised he would apologize now given that there are complaints being made to the judicial coun- sel. She says LEAF has no inten- tion of withdrawing its com- plaint 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 be- haviour warrants some form of sanction, but he notes that if Za- bel doesn't have a track record, he doesn't agree with those call- ing for his removal from office. He says that it is harsh for a one- off incident, but he adds that some official response is impor- tant because it's not just about punishing one judge but about "making clear to the legal profes- sion 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 politi- cal nature just exacerbates how absurd and problematic it is." The OJC is receiving a num- ber 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 informa- tion from the multiple com- plaints and come to a decision regarding further action. LT Integrated Legal Marketing Solutions LawyerMarketingCanada.com/solutions Put Your Digital Marketing Tactics into High Gear Untitled-2 1 2016-11-14 2:51 PM NEWS Kim Stanton says when it comes to evalu- ating courtroom behaviour, the issue isn't what the person intended when they acted in a concerning way but the impact of their action on people around them. This is almost mind-blowing that this judge could even entertain this, let alone follow through on doing something so silly. Emmett Macfarlane

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