But the apology from Justice Bernd Zabel of the Ontario Court of Justice in Hamilton – who has sat for more than a quarter-century – will not derail an investigation into his conduct. Two groups and an individual that made formal complaints against him to a judicial disciplinary body said the apology will not dissuade them from pressing on.
Justice Zabel said he had meant to be funny. “What I did was wrong,” he said in court on Tuesday. “I wish to apologize for my misguided attempt to mark a moment in history by humour in the courtroom following the surprising result in the United States election.”
He said a Globe and Mail article revealing his conduct was accurate, except that he had not returned with the hat after the morning break. The Globe reported that he entered court wearing a scarlet baseball cap emblazoned with the words “Make America Great Again.” He then placed the cap on the bench in front of him.
Digital audio from that morning, which The Globe obtained on Tuesday from the court, shows that Justice Zabel said, “Just a celebration of an historic night in the United States.” A male voice then replies, in a joking manner, “I should have worn my shirt, Your Honour.”
In his 216-word statement of apology and explanation, Justice Zabel appeared to explain why his apology was delayed: Tuesday was his first time in court since the incident. Wearing the hat, he said, “was not intended in any way as a political statement or endorsement of any political views and in particular the views and comments of Donald Trump. I very much regret that it has been taken as such.”
He went on to say: “I apologize for any offence or hurt caused by my thoughtlessness. I acknowledge that wearing the hat was a breach of the principles of judicial office and was a lapse in judgment that I sincerely regret. I apologize for my actions to the public I serve, the institution I represent, my judicial colleagues, members of the bar and all persons serving the administration of justice.”
He said he remains an impartial judge. “I will humbly continue to treat all persons that appear before me fairly and impartially as I have done since my appointment to this honourable bench in 1990.”
The Globe’s report prompted complaints to the Ontario Judicial Council, a disciplinary body, from Osgoode Hall law professor Gus Van Harten, the Women’s Legal Education and Action Fund, and 27 faculty members at the University of Windsor law school – Justice Zabel’s alma mater.
The judicial council will not confirm that it received those complaints or say whether any others have been received, citing its policy that complaints are private unless an investigation leads to a public hearing. Justice Zabel faces possible penalties ranging from a reprimand to a recommendation for dismissal.
Prof. Van Harten said by e-mail that Justice Zabel did the right thing by apologizing at this early opportunity. “I appreciate his clear statement of contrition and his acknowledgment that it was wrong to wear the hat in court. I would not wish to see his career ruined by one act of poor judgment.” He said he would maintain his complaint, but expects to change it.
Kim Stanton, the litigation director of Women’s LEAF, said the group will not withdraw its complaint.
“Whenever someone acts in a way that reduces access to justice for marginalized groups, it is not the person’s intention that is the issue. It is the impact those actions have. The concern we have here is with the impact that his actions have already had on the public’s confidence in the judiciary.”
David Tanovich, who is spearheading the University of Windsor complaint, said he and his colleagues will not withdraw their complaint for the same reasons mentioned by Women’s LEAF.
Matthew Green, a Hamilton city council member who had called for Judge Zabel’s removal from the bench, said in an interview that “you don’t wear a political symbol without trying to make a political statement. It just never should have happened.” He said he would like to see the disciplinary process play out.