The Curious Case of Judge Zabel

By: A. Scott Reid

November 9, 2016. The day after Donald Trump’s election in the United States. Judge Zabel enters a courtroom in the Ontario Court of Justice in Hamilton, Ontario wearing a “Make America Great Again” baseball hat. He declares that he is “celebrating a historic event” (the election of Donald Trump as President of the United States). He sets the hat on the judge’s dais and leaves it there while he conducts court proceedings.

For this egregious misconduct, Judge Zabel was subjected to an inquiry into his conduct. The ruling has just been released and the judge was suspended for thirty days without pay. Some have commented that the sanction wasn’t severe enough. Others have opined that it was too strong for something which was a nothing more serious than a poor attempt at a joke.

With great respect to both views, one thing is certain – Judge Zabel can never again preside over a criminal case, particularly any case involving any sort of visible minority, members of the LGBTQ community, or women. In other words, any criminal case. His effectiveness as a judicial officer has effectively been neutered, not only by the finding of judicial misconduct itself, but by his patently ridiculous testimony attempting to explain it.

Many people, including at least one of his colleagues, believe sincerely that Judge Zabel is neither a racist nor a misogynist. This view however, misses the point. By wearing that hat into court and proclaiming that he was “celebrating” Trump’s win, Judge Zabel aligned himself with the policies and personality of Donald Trump.

There is no serious argument to be made that Trump’s policies are not racially divisive. His comments about Mexicans being rapists and drug dealers, his vow to build a wall to prevent Mexicans from entering, his Muslim ban, his reluctance to condemn neo-Nazis and white supremacists and his insistence on equating antifa and other counter-protesters with the Nazis and supremacists when he finally did condemn them, as well as his pardon of Joe Arpaio, the notorious Arizona sheriff well known for his race-based police policies, clearly show his racially divisive rhetoric, and has spurred increases in flat-out racism among his followers.

But racial minorities are not alone in the vitriol they suffer. Lesbian, Gay, Bisexual, Trans, and Queer persons (LGBTQ) have notably suffered as well. His banning of Trans persons from serving in the military, “in any capacity”, has furthered the stigma and prejudice suffered by those groups.

Fully half the population of the world – women – should be concerned. Surprisingly, his pandering to the religious vote by vowing to eliminate funding for Planned Parenthood or possibly making getting an abortion a crime is not the most serious concern. Rather, his comments, made before he became a presidential candidate, about sexually assaulting women, and about being able to use his wealth and celebrity power to get away it, should cause everyone, not just women, to shudder in fear.

This is the candidate that Judge Zabel was “celebrating”. Whether he actually subscribes to any of these views is a secondary consideration. There is a palpable, indeed overriding appearance that he subscribes to them. Otherwise, why would he be celebrating? If he did not agree with Trump on some level, he would not have viewed Trump’s election win as something deserving of celebration. There is no evidence that Judge Zabel knows Trump personally, which if were the case would explain the support. The only possible explanation is that he supports some, or all, of Trump’s policies. Which ones he specifically adheres to is a murky question incapable being answered.

And to those commentators who assert that the judge was simply making a joke, albeit a misguided and inappropriate one, I respond with the following – his explanation was nonsensical and would be rejected by virtually every judge in virtually every criminal trial.

When pressed at the misconduct hearing about the language that he actually used in court, the judge’s stock response was that he misspoke, or used poor words to describe his position. Remember though, that Judge Zabel had been confronted by his colleague about wearing the hat, before appearing in court. He was therefore alerted to the possibility that it was inappropriate and, accordingly, he had time to think about what he was going to say. To consider the potential issue before he stepped into court. He then walked into court and said he was “celebrating” Trump’s win. I can assure you, no client of mine who has ever said at his / her trial, that the words he / she used were simply poorly chosen and didn’t reflect their actual meaning, has ever been believed. That explanation simply smacks of desperation and ex-post facto rationalization when he realized that what he had said was problematic.

Which brings me back to criminal trials and Judge Zabel’s inability to preside over them anymore. I cannot imagine a vigorous defence counsel, representing a hispanic, black, muslim, or any other racialized minority, LGBTQ, or female defendant, who discovered that the trial would be presided over by Judge Zabel, NOT bringing an application to have Judge Zabel recuse himself from the trial. There is clearly an appearance of bias, and appearances matter. Justice must not only be done, it must also be seen to be done, and in order to be seen to be done, the arbiter of justice, the presiding judge, must be seen to be unbiased. It is difficult to see how Judge Zabel could possibly be seen to be unbiased in light of his explicit endorsement of Trump.

But this issue does not stop with defence counsel. Crown counsel should have the same concerns. What are they to do when they are prosecuting a white male but their witnesses or complainants are muslims, hispanics, or any of the other marginalized persons Trump consistently rails against? How could the Crown have any confidence that Judge Zabel can impartially assess those witnesses’ evidence? It seems unfathomable.

At its core, this issue is not about whether Judge Zabel is racist or not, anti-LGBTQ or not, misogynist or not. It is about the appearance of fairness and the ability for the participants to obtain a trial that appears to be, and is, fair. Regardless of the sanction imposed and irrespective of whether that sanction was too severe or doesn’t go far enough, the sanction is secondary. Once Judge Zabel serves his thirty-day suspension, he can no longer be permitted to preside over criminal cases.