The Hamilton Spectator
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
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.