More con­cerns about Hamil­ton judge who wore Trump hat to court

Man ac­cused in as­sault case wor­ries Jus­tice Bernd Za­bel may feel pres­sured to rule against him

The Hamilton Spectator - - FRONT PAGE - MOLLY HAYES mhayes@thes­pec.com 905-526-3214 | @mol­ly­hayes

Af­ter a Hamil­ton judge was blasted for wear­ing a Don­ald Trump cam­paign hat in court, lawyers in an as­sault case he is pre­sid­ing over have ex­pressed con­cern about his po­ten­tial bias — not against women, but in favour of them.

De­fence lawyer Larissa Fedak asked the judge for an ad­journ­ment Fri­day — in the mid­dle of the trial of her client, who is charged with as­sault­ing his wife — be­cause her client “wishes to file an ap­pli­ca­tion to re­move ( Jus­tice Bernd Za­bel) as the trial judge on the grounds of rea­son­able ap­pre­hen­sion of bias.”

The client’s con­cern is that Za­bel, un­der con­sid­er­able scru­tiny for his per­ceived sup­port of pres­i­dent-elect Don­ald Trump, might feel pres­sured to rule in favour of the fe­male com­plainant — not be­cause he is bi­ased, but to prove he is not bi­ased.

An­other lawyer will step in to pur­sue the ap­pli­ca­tion for ap­pre­hen­sion of bias, Fedak said, be­cause of her po­ten­tial con­flict of in­ter­est in the tight-knit le­gal com­mu­nity.

Michael Lacy, pres­i­dent of the On­tario Crim­i­nal Lawyers’ As­so­ci­a­tion, will han­dle the ap­pli­ca­tion on Dec. 2.

Reached by phone Fri­day, Lacy con­firmed that he is “in the process of re­view­ing the sit­u­a­tion, and whether or not this is an ap­pro­pri­ate sit­u­a­tion to ask the judge to re­cuse him­self.”

Last week, Za­bel walked into a John Sopinka court­room wear­ing a bright red “Make Amer­ica Great Again” cam­paign hat to mark what he called a “his­toric” elec­tion.

Nu­mer­ous com­plaints were launched against the judge to the On­tario Ju­di­cial Coun­cil. Ward 3 Coun. Matthew Green has pub­licly called for Za­bel to step down or be re­moved from the bench.

In court Tues­day, the judge apol­o­gized and said it was not meant to be a po­lit­i­cal state­ment or an en­dorse­ment of the con­tro­ver­sial pres­i­dent-elect.

But a small group of pro­test­ers in Za­bel’s court­room Fri­day said “sorry” is not enough.

“We wanted to come and add our voices … to be vo­cal and not com­pla­cent in the face of in­jus­tice,” ex­plained Rabbi Denise Hand­larski.

The group had planned to hold up small signs in protest but say se­cu­rity at the front doors took them away. They were also told to cover their home­made protest T-shirts.

Even with­out their props, Hand­larski says they were com­mit­ted to be­ing there “to look the judge in the face, and tell him ‘no.’”

“It’s one more piece of per­mis­sion for peo­ple who are hate­ful to take up big­ger space. When a judge can do this, this is per­mis­sion,” Deb­o­rah Chard says of the in­ci­dent. “Sorry is not enough. I want an essay.” An ap­pre­hen­sion of bias ap­pli­ca­tion is rare. And oddly, the process is such that it would be the judge him­self who would rule on his own po­ten­tial bias.

Lorne Sossin, dean of the Os­goode Hall Law School in Toronto, says that while those in the court­room Nov. 9 for the hat in­ci­dent might have had a “par­tic­u­larly compelling case” to sug­gest bias, to make such an ap­pli­ca­tion now — par­tic­u­larly af­ter the apol­ogy — would be more broad-reach­ing.

If the claim is sus­tained, he can’t imag­ine a sce­nario in which Za­bel could con­tinue as a judge: “I think it means Jus­tice Za­bel ef­fec­tively will be on leave with pay in­def­i­nitely.”

“The chal­lenge in this case is that, if prior to hear­ing a case, lit­i­gants can have Jus­tice Za­bel re­moved due to con­cerns over bias, wher­ever the sub­ject mat­ter re­lates to some­thing that has a nexus with the Trump cam­paign, this will in ef­fect mean he can­not con­tinue in the role,” Sossin said.

He ac­knowl­edges the judge is un­der con­sid­er­able scru­tiny now, par­tic­u­larly given the pend­ing com­plaints.

“The con­cern, once a com­plaint is not only be­ing in­ves­ti­gated but widely re­ported in the me­dia, is that what­ever de­ci­sion he reaches in cases will be scru­ti­nized through the fil­ter of the sub­ject mat­ter of the com­plaint. This puts pres­sure not just on Jus­tice Za­bel but the court as a whole.”

The case will be back in front of Za­bel on Dec. 2.

JOHN RENNISON, THE HAMIL­TON SPEC­TA­TOR

Pro­test­ers ex­press dis­may Fri­day over Jus­tice Bernd Za­bel wear­ing Trump cam­paign hat in court.

Za­bel: said sorry in court

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