Hamilton judge who wore Trump hat in court no longer being assigned cases

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A judge under investigation after wearing a Donald Trump campaign hat into court is no longer being assigned to hear cases.

Justice Bernd Zabel of the Ontario Court of Justice in Hamilton is the subject of several complaints to the Ontario Judicial Council that he improperly made a political statement, raising questions about his neutrality, when he donned a scarlet baseball cap emblazoned with the words "Make America Great Again" on the day after the U.S. election in November.

Under the judicial council's rules, a judge and a community member investigate complaints and make a recommendation to a larger review panel.

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A spokeswoman for Ontario Court Chief Justice Lise Maisonneuve issued a brief statement in response to a query from The Globe and Mail asking whether Justice Zabel has stopped hearing cases.

"Justice Zabel stopped being assigned to preside in court December 21, 2016," Kate Andrew, a court spokeswoman, said in an e-mail. Under Ontario law, the assignment of cases is the responsibility of the chief justice and the regional senior judge. Ms. Andrew declined to answer who made the decision not to assign him cases, or why.

The lack of detail contrasts with the statement posted promptly on the website of the Federal Court in Ottawa last year when Justice Robin Camp's conduct during a sexual-assault trial became public (he had asked a complainant why she didn't keep her knees together). That court's chief justice said Justice Camp would not be assigned cases in which sexual conduct was an issue. Two weeks later, the Federal Court's chief justice said publicly that Justice Camp would not be assigned any new cases. A disciplinary body has since recommended Justice Camp's removal from the bench.

Daniel Brown, a criminal defence lawyer, said that, given the nature of Justice Zabel's conduct, it is appropriate his role as a judge be limited until the judicial council's investigation is complete. But he said the public should be told what is happening.

"In the interests of transparency, it is troubling that neither the public nor the participants in the justice system are being provided with any explanation about Justice Zabel's status as a judge," Mr. Brown said in an e-mail. The Toronto-based lawyer is a director of the Criminal Lawyers' Association, which has complained to the Ontario Judicial Council about the judge. Other known complaints are from Osgoode Hall law professor Gus Van Harten, 27 professors at the University of Windsor Law School and the Women's Legal Education and Action Fund.

Hamilton lawyers were surprised to discover that – without any notice – Justice Zabel vanished from cases last month after proceedings had already begun.

"One day another judge stepped in and said 'Zabel won't be back. We can't tell you any more,' " a criminal defence lawyer who practises in Hamilton said, speaking on the condition of not being identified. (Several lawyers in Hamilton have said they are concerned of drawing the ire of judges in the city if they make negative comments about Justice Zabel.) The lawyer has another case before Justice Zabel that has been left up in the air. "There's no return date. He's gone. No one's told us anything. I don't know when he's returning or if he's returning or what happened. We all expected him to return that morning. Everything was normal, but all of a sudden the next day, no judge."

A phone call to Justice Zabel's office was not returned. In November, the judge apologized for his conduct, saying he had meant to be funny, not to make a political statement. The judge, who has been on the bench for 25 years, is paid $285,000 annually. The Ontario Court of Justice said judges have non-presiding responsibilities including judgment writing, judicial education and special projects. The court did not respond to a question about whether the judge is still being paid while he is not being assigned cases.