Did Politics Trump Justice Zabel’s Sentence?

Yesterday, the Ontario Judicial Council sentenced Justice Bernd Zabel, a trial judge sitting in Hamilton, to a 30-day suspension without pay for having brought a Donald Trump “Make America Great Again” cap into court the morning after the 2016 U.S. presidential election, and for telling the public assembled in court that he had “voted” for Mr. Trump and that the other judges hadn’t.

At his discipline hearing, he testified that he did not actually support Mr. Trump and that the incident was a clumsy attempt at courtroom humour.  Justice Zabel admitted the gesture was inappropriate, given the divisive campaign involving the president-elect’s treatment of Latinos, muslims, women, people with disabilities, etc.  Many members of the bar, myself included, had supported a review of the judge’s conduct on the basis that it could be construed by members of the public, especially from minority groups, that they would be discriminated against in court.

One part of the judge’s reported comments that didn’t make sense to me at the time the original story broke was Justice Zabel’s comment in court that all the other judges voted for Hillary, and he was the only one who voted for Trump.  If he meant ‘vote’ in a political sense, that would imply that all the judges sitting in the Hamilton court house were dual nationals holding American Citizenship.  The comment, taken literally, made no sense.  But many of us chose to ignore this incongruity in our haste to judge the judge.

Justice Zabel has now clarified that ‘vote’ meant something equivalent to a water cooler poll and that he did not, in fact, support Trump or his campaign slogans.  He had simply predicted Trump to win.  If so, perhaps Justice Zabel was more aware of social and demographic shifts in North America than his judicial colleagues in Hamilton.  Ms. Clinton, for her part, misjudged the mood of many displaced working-class citizens in the United States.

Bringing the hat into court was an obvious lapse worthy of public sanction.  However, now that we have heard the judge’s explanation, we have to ask ourselves whether we are comfortable with the idea he was given the harshest sentence short of removal from the bench, under s. 51.6(11) of the Courts of Justice Act.  Yes, we must hold judges to a higher standard, but the standard exists within the same body of law that governs everyone.

Perhaps 30 days without pay sounds like a red card in soccer (removal from the pitch followed by several games suspension).  If we think the maximum penalty short of dismissal is too light, it is for the Ontario legislature to make that decision.  Handing out the penultimate sentence for the judge’s faux pas defies numerous principles of the law of penal sentencing with regard to general and specific deterrence.  These principles apply to everyone, even if they protect those holding public office.

Even 30 days “less a day,” a common sentencing device to stop a case from being equated with a more serious category of offences, would have given effect to the principle of justice in a democracy that it is the people, in sentencing one of its own in applying the law, who must show fairness and recognize the guilty party’s contrition.  Whatever one’s politics, Justice Zabel deserved better from us.

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