Judiciary should clarify what’s going on with Trump hat judge: law professors

A legal expert says the provincial body that handles complaints about judges should be more open about the case involving a Hamilton justice who wore a Donald Trump campaign hat to court.

Justice Bernd Zabel hasn’t been assigned cases since Dec. 21 but his future on the bench is unclear.

Numerous complaints have been filed against Zabel with the Ontario Judicial Council since the Nov. 9 incident, but the council won’t confirm an investigation is underway.

There is a need to balance transparency with fairness to the parties involved, but it would be helpful for either body to elaborate on what the action taken in this case means, Lorne Sossin, dean of Osgoode Hall Law School, said Wednesday.

“Is it meant to indicate how seriously (the council) views the complaint, or that the complaint is likely to result in a formal public hearing, or that public confidence in this case required some interim response while the process unfolds?” he said in an email.

Zabel continues to be paid but is not currently tasked with any court duties, said an Ontario Court of Justice spokesperson. The spokesperson wouldn’t say how long he’ll be away from court or whether his absence is a suspension.

Richard Devlin, a professor at Dalhousie University’s law school, said the judicial council is acting “excessively defensive.”

“To refuse to even acknowledge that they’re investigating a complaint … seems to me to be problematic,” he said. “The ultimate idea here is to promote public confidence in the judiciary, and that will also require they have mechanisms that are relatively transparent.”

Zabel, who has been a judge since 1990, could not be reached for comment. A week after the Trump hat incident, he apologized for his behaviour in court, calling it a “misguided attempt to mark a moment in history by humour.”

That explanation clashed with a declaration of support for Trump the same day of the incident, according to a certified transcript obtained by The Toronto Star.

While it’s not clear what disciplinary action will be taken against Zabel — if any — the Ontario Judicial Council has measures available to it that its federal counterpart does not, noted Gavin MacKenzie, a Toronto litigation lawyer.

The provincial body can issue a warning or order a judge to attend treatment, while the only option available to the Canadian Judicial Council is recommending removal from office. “I was strongly of the view … that the Canadian Judicial Council should have that range of options,” said MacKenzie, who chaired a task force of the Canadian Bar Association that made submissions to the federal body on reform.

All complaints filed to the Ontario Judicial Council are assigned to a two-person subcommittee made up of a judge and a community member for a private investigation.

The subcommittee can make a recommendation to the Regional Senior Justice that the judge be suspended with pay or reassigned elsewhere until the complaint is dealt with, a document posted on the council’s website notes. The subcommittee report is then put before a four-person panel for review.

From there, the complaint can be dismissed, referred to the Chief Justice of Ontario (who will speak to the judge) or examined in a public hearing. There’s no timeline for when the panel must reach a decision. If a judge is found to have committed professional misconduct, possible sanctions include a reprimand, suspension or recommendation to the attorney general that the judge be removed from office.