It has been an important week. So important in fact, that one Hamilton judge decided to walk into court, fully robed in judicial attire, wearing a “Make American Great Again” baseball cap.
Never mind that Hamilton, Ontario is based on the north side of the border. The openly political statement by a judge in a courtroom has raised some concerns among some members of the bar,
“The clerk said ‘all rise’ and the door opens and Justice Zabel comes out. He is in a black silk robe with the crimson sash and the white tie. He has a poppy on his lapel. And he is wearing a scarlet-coloured baseball cap that says Make America Great Again. And we all stand because we are supposed to stand when the judge comes in and he looks at everyone and said he was wearing the hat ‘because last night was an historic occasion…
He took the hat off and put it on the bench so everybody could look while he continued his court business. He didn’t put it away. It was sitting on the bench.”
As an Ontario Court of Justice judge, Justice Berndt Zabel is subject to the complaint process under s. 49 of the Courts of Justice Act. The Ontario Judicial Council has developed criteria for continuation in office and standards of conduct “Principles of Judicial Office,” which states,
3. The Judge in the Community
3.1. Judges should maintain their personal conduct at a level which will ensure the public’s trust and confidence.
3.2. Judges must avoid any conflict of interest, or the appearance of any conflict of interest, in the performance of their judicial duties.
The commentary to this principle says that “Judges must not participate in any partisan political activity. Judges must not contribute financially to any political party.”
The question as to whether this act constituted as partisan political activity, for a party in a political election in another country, is certainly debatable. There has been little interpretation of these Principles since they were created, and they are only intended to be advisory in nature. What seems less unclear is the impropriety of a judge wearing this piece of paraphernalia in the court room he was presiding over.
Further clarification may be gained from the Canadian Judicial Council’s “Ethical Principles for Judges.” Although this body does not govern over provincially appointed judges, these Ethical Principles have been examined in further detail. The section on political activity reads as follows:
D. Political Activity
1. Judges should refrain from conduct such as membership in groups or organizations or participation in public discussion which, in the mind of a reasonable, fair minded and informed person, would undermine confidence in a judge’s impartiality with respect to issues that could come before the courts.
2. All partisan political activity must cease upon appointment. Judges should refrain from conduct that, in the mind of a reasonable, fair minded and informed person, could give rise to the appearance that the judge is engaged in political activity.
3. Judges should refrain from:
(a) membership in political parties and political fund raising;
(b) attendance at political gatherings and political fund raising events;
(c) contributing to political parties or campaigns;
(d) taking part publicly in controversial political discussions except in respect of matters directly affecting the operation of the courts, the independence of the judiciary or fundamental aspects of the administration of justice;
(e) signing petitions to influence a political decision…
Justice Dube of the Federal Court governed over a motion for recusal in Fogal v. Canada, on the basis that the application was directed at the Government of Canada, and the particular case involved Jean Chrétien as a potential witness. Justice Dube had a career as a federal politician and a Cabinet member, prior to his appointment by Pierre Trudeau.
He rejected the motion for recusal, and stated,
 Judges do not descend from heaven. They come from various fields of activities. Some of us are former academics, others were in the public service, others practiced law in small towns or large firms. And some of us were in politics. The variety of our individual careers is a rich source of knowledge and experience for the courts. Once we took our oath of office, we divorced ourselves from our past and dedicated ourselves to our new vocation. Our duty is to render justice without fear or favours.
This passage was also cited in Hijos v. Canada for a judge who refused to recuse himself on the basis of being a former employee of a party, as well as in Chaudhry v. Canada, where a tribunal member appeared to share a faith with one of the issues being spoken on.
In the latter case, Justice Harringon stated,
 Allegations of bias are most serious in that they go to the root of our system of justice, a fair hearing before an impartial decision maker…
An allegation that Justice Zabel would be biased simply because he wore a hat would also be very serious, and would have to meet the stringent test laid out in R. v. RDS,
113 Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly.
Nonetheless, judges should be held to the highest standards of impartiality (para 118), and judges owe a duty to the community, not only to render impartial decisions, but also to appear impartial (para 120).
Reasonable apprehension of bias has been rejected where the political activity was historic and has since ceased, or where political donations were made prior to appointment. There does not appear to be any dispute about current or ongoing political activity once appointed.
The Supreme Court of Canada affirmed a presumption of impartiality in Wewaykum Indian Band v. Canada. Where reasonable apprehension of bias has been found, it is often in conjunction with other statements and contextual factors at hand.
In Yukon Francophone School Board, Education Area #23 v. Yukon, the Supreme Court of Canada reviewed the conduct and statements of a trial judge, which included numerous accusations and attacks on counsel. It was only in light of all of the incidents, as taken together and viewed in their context, that lead to a conclusoin that a reasonable and informed person would consider the conduct as giving rise to a reasonable apprehension of bias.
The RDS case also emphasized at para 114 that whether reasonable apprehension of bias arises depends entirely on the facts of the case.
Given the wide myriad of facts and cases which Justice Zabel could face, a public explanation for the hat is likely warranted, especially in light of the wide number of enumerated and analogous groups attacked through use of this political symbol, or the hundreds who have been publicly insulted.
A failure to do so could impact the public trust and confidence in the justice system.