Ont. judge who wore 'Make America Great Again' hat said no malicious intent
A supporter wears a hat at a Republican presidential candidate Donald Trump campaign event at Dubuque Regional Airport in Dubuque, Iowa on Jan. 30, 2016. (AP / Paul Sancya)
Paola Loriggio, The Canadian Press
Published Wednesday, August 23, 2017 6:40AM EDT
Last Updated Wednesday, August 23, 2017 4:30PM EDT
TORONTO -- An Ontario judge who wore a hat in court bearing a slogan used by U.S. President Donald Trump told a disciplinary hearing Wednesday he was shocked to discover that what he meant as a joke was viewed as a political statement.
Justice Bernd Zabel told an Ontario Judicial Council panel in Toronto he meant to "lighten things up" by wearing a baseball cap with the slogan "Make America Great Again" while walking into court on Nov. 9, 2016 -- the day after Trump won the U.S. election.
Zabel, 69, testified that it was only after his actions made headlines that he realized some believed he was showing support for the controversial American president and his policies.
"I had no malicious intent," said Zabel, who vowed never to wear the hat in court again.
Zabel admitted his actions were contrary to the standard of conduct expected of a judge and constitute judicial misconduct.
An agreed statement of facts shows Zabel wore the hat while walking into a courtroom and said it was "just in celebration of a historic night in the United States." He then took it off and placed it on the dais until the break, when he took it back to his office, the document says.
While leaving the courtroom at the end of the day's proceedings, Zabel was asked about the hat's disappearance by a prosecutor, according to the agreed statement of facts.
He replied: "Brief appearance for the hat. Pissed off the rest of the judges because they all voted for Hillary, so. I was the only Trump supporter up there, but that's OK."
Zabel later apologized publicly for his behaviour, calling it a "lapse in judgment."
The judge testified Wednesday that he misspoke in discussing the hat in court, and meant to say he was marking an unprecedented historic event rather than celebrating Trump's victory.
He maintained he is not a Trump supporter but was simply "gloating" at having predicted the outcome of the election better than his colleagues.
Presenting counsel Linda Rothstein suggested that even if Zabel believed he was making a joke, the election was no laughing matter for many Canadians, who felt "devastated" by the victory of someone whose values they do not share.
She asked the judge if he understood why some might be offended that he appeared aligned with Trump, whose policies have often targeted immigrants and other vulnerable groups, and why they may question his impartiality as a result. Zabel said he did in hindsight but had not foreseen that possibility at the time.
In her closing submissions, Rothstein said the judicial council panel must assess Zabel's actions -- which she described as "very serious" misconduct -- rather than his intentions. She said steps must be taken to restore the public's trust in the justice system, noting the judge's apology "did not go far enough" to achieve that goal.
Zabel's lawyers argued his behaviour did not merit extinguishing an "otherwise unblemished" career.
The panel must decide what penalty, if any, to order. It may impose a number of sanctions or recommend Zabel lose his job. A decision was not delivered Wednesday and no date was given for the ruling.
The judicial council said it received 81 complaints about Zabel's behaviour, with some suggesting his apology was not consistent with his earlier comments in court. None of the complaints came from people who were in court that day.
Sixty-two character references have been filed in the case, lauding Zabel as a sensitive and compassionate judge.
The Ontario Court of Justice said in January that Zabel, who is based in Hamilton, was no longer being assigned cases.
One of Zabel's colleagues, Justice Marjoh Agro, said his absence has put a strain on courthouse operations and caused scheduling headaches in several trials.
Agro was one of the few to see Zabel with the hat on when they ran into each other near the elevators before court, she testified. She asked if he was out of his mind, to which he responded that it was a joke, she said.
"I deeply regret not ripping that hat off his head," she said.