Perceptions Matter, but Reality Matters More

Judges are not immune from scrutiny, but we should be cautious in the manner in which we exert that scrutiny.

Sometimes that scrutiny is thrust directly into the public forum, as with Justice Zabel’s incident on Nov. 9, 2016, when he wore a hat from the American president’s election campaign.

Lawyers were upset, understandably, as there were legitimate concerns about political partisanship generally, but also about the appearance of bias towards any of the historically marginalized or radicalized groups that the presidential candidate had made offensive comments about. The public were even more concerned, especially where a Canadian judge appeared to be endorsing a controversial American president.

Although Justice Zabel issued an apology on November 15, 2016, the apology itself was inconsistent with audio recordings of the proceedings obtained by the media. These inconsistencies gave rise to concerns that any apology was disingenuous.

Ultimately 81 complains were made to the Ontario Judicial Council, the decision for which was released last week.

What assisted the panel was there was no dispute in the facts, Justice Zabel acknowledged that “his actions were contrary to the standard of conduct expected of a judge and contrary to the Principles of Judicial Office for judges of the Ontario Court of Justice,” and he agreed that the conduct warranted sanction from one of the penalties found under s. 51.6(11) of the Act.

The real issue in this decision was what the appropriate sanction should be, especially since the Ontario Judicial Council stated in their 2002 decision of Re Baldwin,

The purpose of judicial misconduct proceedings is essentially remedial. The dispositions in s. 51.6(11) should be invoked, when necessary in order to restore a loss of public confidence arising from the judicial conduct in issue.

…

It is only when the conduct complained of crosses this threshold [of a loss of public confidence] that the range of dispositions in s. 51.6(11) is to be considered. Once it is determined that a disposition under s. 51.6(11) is required, the Council should first consider the least serious – a warning – and move sequentially to the most serious – a recommendation for removal – and order only what is necessary to restore the public confidence in the judge and in the administration of justice generally.

The OJC identified several aggravating factor in this case, including the fact that this occurred while in courtroom as part of his official capacity. However, the mitigating factors appeared to be far more significant, including what the OJC described as his inadequate apology, efforts to change or modify his conduct, but most importantly, his “27 year record of unblemished and exemplary service on the bench.”

The OJC received 63 letters and two cards written in support of Justice Zabel, largely from the Hamilton bar and bench where he presides, describing him as “a valued, hardworking, fair minded and impartial judge.” What the OJC did not receive are additional complaints about other incidents of related conduct, which would be expected if this incident was reflective of a broader pattern of behaviour.

Ultimately the OJC concluded that “Perceptions matter… but reality also matters.”

Although they considered the incident to be very serious, and the least significant penalty of a warning was not appropriate, they were faced with the record and reputation that “he is an entirely fair minded and impartial judge who is dedicated to the highest ideals of his calling.”

Given this backdrop, the recommendation that he be removed from the bench was neither necessary nor warranted,

[67] In this case, a judge with a lengthy and stellar record of service committed a single aberrant and inexplicable act of judicial misconduct. A reasonable and informed member of the public, considering Justice Zabel’s conduct in the context of his entire career, and in the context of the evidence we have heard, would not think it necessary to remove him from office because of this single transgression in order to restore public confidence in the justice system. We add that absent the strong evidence of Justice Zabel’s long record of impeccable service as a fair and impartial judge, the result may well have been different.

The most serious penalty the OJC can impose short of removal is a suspension without pay for 30 days, and a reprimand for his conduct.

This discipline decision also highlights some of the broader importance of maintaining the decorum within the court. One of the defence counsel present attempted to engage in Justice Zabel while he was wearing the hat, joking that he would have worn his t-shirt, and then engaging with Justice Zabel around the inauguration day while discussing scheduling. This lawyer also wrote a letter of support for Justice Zabel,

I am in the unique position that I was in the courtroom the day of the hat incident. It is my view that Justice Zabel was joking. In fact, I was joking with him. It is my view that Justice Zabel’s conduct was likely just a bi-product of the collegial atmosphere that exists in Hamilton. I have no concerns running any of my future matters in front of Justice Zabel, I have no concerns about his impartiality, nor do I have any concerns about having a fair hearing.

There is no way to tell from this lawyer’s name alone whether he self-identifies with any of the historically marginalized groups that have been targeted during this presidential campaign or following. Even if he was, it does not detract from the fact that this occurred in a public forum, with other lawyers and members of the public present.

This lawyer’s defence of the conduct, in this manner, helps illustrate the manner in which the bar itself risks condoning inappropriate conduct through attempts of ingratiating themselves while in court. Lawyers are themselves particularly vulnerable to this type of pressure, as we frequently approach all matters delicately and with as much tact as possible when before the court in order to obtain the relief we seek on behalf of our clients.

The very concept of collegiality in this context is an anathema to the concept of diversity, equity, and inclusion in the law. The closeness expressed by wrong-minded individuals serves to exclude and express hostility to those who properly value human rights and the legal underpinnings of our justice system.

While the penalty imposed by the OJC in this case was correct, in that Justice Zabel “is [already] paying a very public price for his transgression,” the complicity of those who allowed it to occur, or did not speak up on behalf of those who could not, is not within the purview of the OJC.

The bar is just as much in need of training and courses on these issues as the bench may be. Let’s not allow the perceptions of collegiality to blind us from the realities that our justice system is often inherently exclusionary. That reality matters even more.