Zabel, 69, a provincial judge in Hamilton for 27 years, strode into his courtroom Nov. 9 wearing his judge's robes to conduct the court's business of the day. People in the courtroom laughed and snickered at his choice of headwear: a bright red cap, newly iconic during the election with Trump's campaign slogan, “Make America Great Again.”
Some Canadians did not find it amusing. The Ontario Judicial Council, which enforces the conduct of its presiding justices, received 81 complaints from the public, including from lawyers and minority rights groups and citizens. People voiced concerns that Zabel's stunt was a political endorsement in the wake of an acutely divisive presidential election whose ramifications for matters such as the future of NAFTA and European alliances were felt across the border.
After a one-day hearing in August, a judicial panel Tuesday handed down its second-most serious rebuff — suspension of 30 days without pay and a formal reprimand — after the panel found that Zabel “violated the fundamental principle that the judiciary must remain above and removed from politics,” according to a summary of the council's decision. Only removal from office would have been more severe, the summary noted.
“The decision is what is it. We’re happy with part of the result. I would’ve been happier with [just] a reprimand,” one of Zabel's lawyers, Toronto-based Ricardo Federico, told The Washington Post.
Media reports fueled countrywide complaints, leading to a Nov. 15 apology from Zabel, his first day back in court following a Nov. 11 Globe and Mail report.
“What I did was wrong. I wish to apologize for my misguided attempt to mark a moment in history by humor in the courtroom, following the surprising result in the United States election,” Zabel said, according to the decision.
“This gesture is 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,” he added.
Federico sought to correct media inconsistencies and said Zabel wore the hat only once, not twice, as some reports suggested, and for less than a minute before taking it off to place it on the dais with the phrase facing the courtroom. Audio recordings of that moment prove there was not much reaction beyond scattered laughter, he said.
The connection to Trump's often charged statements sparked complaints that Zabel appeared to endorse “misogynistic, racist, anti-Muslim, anti-immigrant, and homophobic views, which are completely at odds with Canadian values,” the decision said.
“The complainants submit that individuals who might suffer discrimination would fear that they would not be fairly treated by a judge who expressed support for Donald Trump’s candidacy,” the document added.
Zabel fled Germany as a “refugee from communism,” according to his statements. The panel considered 62 letters of support and heard testimony from colleagues, including fellow justice Marjoh Agro, who said Zabel was a fair and impartial judge.
Agro saw Zabel before he entered the courtroom and was bewildered by what he was about to do, according to the CBC.
“I looked at him and said, ‘Are you out of your mind?'” she testified. “I remember the day all too well because, frankly, I deeply regret not ripping that hat off his head.”
The panel also weighed mitigating factors, the decision said, including nearly three decades of “unblemished and exemplary service on the bench” and “enviable reputation as a highly professional, competent, courteous, fair minded, and compassionate judge” made clear through the letters of support.
“He has a great sense of humor, and he's looking forward to going back to work,” Federico said of Zabel from his car. He said they met last year when Zabel gave him a book on the Innocence Project, an initiative that seeks to overturn convictions based on faulty DNA evidence, and praised Federico's work to bring a similar model from the United States to Canada.
Zabel wanted to discuss how to become involved over a hearty tomahawk steak, a cut of a beef with a prominent rib bone resembling a hatchet, Federico said. On Tuesday evening, Federico was on his way to re-commemorate that meal with Zabel following the arrival of the judicial body's decision.
“I’m going to have another tomahawk steak with him right now,” he said.