The separation of politics from the judiciary is a cornerstone of the rule of law and Canada’s democratic system of government.[1]

On November 9, 2016, the day after the United States presidential election, Justice Bernd Zabel entered a Canadian courtroom wearing a red “Make America Great Again” baseball hat, the campaign signature of the successful candidate, Donald Trump. The incident attracted media attention and public criticism of the judge.[2]

For a judge to appear to endorse Trump’s views would be perceived by the public to be an expression of opinion on issues of profound importance to Canadians.

– Ontario Judicial Council, Hearing Panel, September 11, 2017[3]

Overview

Canadian judges are held to a high standard. The Supreme Court of Canada described the judicial function as “absolutely unique.” Judges resolve disputes, determine rights, and defend the fundamental rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms. As the Supreme Court stated: the “judge is the pillar of our entire justice system”.[4]

Maintaining confidence in the judiciary is essential to our democratic form of government. This means that the public will demand virtually irreproachable conduct from anyone performing a judicial function, and that judges must be, and must give the appearance of being, an example of impartiality, independence and integrity.[5]

One of the most basic and fundamental principles of the Canadian justice system is that the judiciary is independent from politics.  Judges “must, at all times, remain above the political fray and they must conduct themselves so as to avoid any perception that the administration of justice will be influenced by their political views”: [6]

“Citizens must feel secure that the judge will decide their fate according to the law and the evidence. The expression of political views by judges, particularly in the courtroom, is inimical to these basic values”.

The act of wearing the baseball cap into the courtroom violated the fundamental principle that the judiciary must remain above and removed from politics.[7] The Ontario Judicial Council hearing panel said that a “reasonable” member of the public would have thought that Justice Zabel “was making a political statement” by bringing the cap into Court as the presiding judge.[8]

We have no hesitation in finding that Justice Zabel’s actions amounted to a serious breach of the standards of judicial conduct, that it had an adverse impact upon public confidence in the judiciary and the administration of justice.

– Ontario Judicial Council, Hearing Panel, September 11, 2017[9]

After a hearing before the Ontario Judicial Council, the four member Hearing Panel unanimously sanctioned Justice Zabel.[10] Justice Zabel has been suspended for 30 days without pay and reprimanded for his breach of the standards of judicial conduct (i.e. breach of a fundamental principle that judges be impartial and not express political views).[11]

Suspension without pay is the most serious sanction the Ontario Judicial Council can impose short of removal from office.

Upon careful consideration, the Ontario Judicial Council concluded that a recommendation for removal from office was neither appropriate nor necessary in the circumstances of this case. The Judicial Council held that this was “a single aberrant and inexplicable act of judicial misconduct” by a judge with “a lengthy and stellar record of service”. The Hearing Panel – lead by Ontario Court of Appeal Justice Robert Sharpe – noted 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”.[12]

Combined with the suspension, we also reprimand Justice Zabel for his breach of the fundamental principle of judicial conduct that 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.

– Ontario Judicial Council, Hearing Panel, September 11, 2017[13]

Complaints to Ontario Judicial Council

Eighty-one complaints concerning Justice Zabel’s conduct were filed after the incident. The Hearing Panel of the Ontario Judicial Council (“OJC”) was convened to hear the allegations of Justice Zabel’s misconduct pursuant to section 51.6 of the Courts of Justice Act.[14]

In December 2016, prior to the hearing taking place, the Regional Senior Justice suspended Justice Zabel with pay pursuant to s. 51.4(8) of the Courts of Justice Act (on the recommendation of an Ontario Judicial Council Complaints Subcommittee) pending the resolution of the complaints against him.[15]

[Judge] Zabel was initially suspended in December after he sported the red ball cap associated with supporters of President Donald Trump in a Hamilton court the day after the 2016 U.S. presidential election.

– Canadian Lawyer Magazine[16]

The hearing took place in August 2017 in Toronto. The Ontario Judicial Council’s decision was released on September 11, 2017.

Ontario Court of Justice

The Court of Ontario consists of two divisions, the Superior Court of Justice (made up of federally appointed judges) and the Ontario Court of Justice (made up of provincially appointed judges). [17]

The Ontario Court of Justice is a provincial court of record for the Canadian province of Ontario. The Ontario Court of Justice is composed of provincially appointed judges and justices of the peace, and oversees matters relating to family law, criminal law, and provincial offences and sits at more than 200 locations across the province.[18]

Who is Justice Zabel

Justice Zabel is a judge of the Ontario Court of Justice.

Justice Zabel is 69 years old, and immigrated to Canada from Germany as a young child in 1953. In his evidence, he described himself as a refugee from communism. Prior to his appointment to the bench, Justice Zabel practised criminal and family law for 11 years. He was appointed to the Ontario Court of Justice in April 1990, and has served as a judge in Hamilton for 27 years.[19]

There have been no previous findings of judicial misconduct, and Justice Zabel was highly regarded by his judicial colleagues and by members of the Hamilton bar, a city approximately one hour outside of Toronto. He was considered to be a valued, hardworking, fair minded and impartial judge.[20]

Ontario Judicial Council Proceedings

Pursuant to its complaints procedures, the Ontario Judicial Council provided Justice Zabel with copies of the complaints and gave him the opportunity to respond. Through his legal counsel, Justice Zabel responded very briefly and stated that he made a public apology on November 15, 2016, that he remained contrite, and that he was looking forward to resuming his judicial duties.[21]

The Ontario Judicial Council Complaints Subcommittee ordered that the complaints be the subject of a hearing pursuant to s. 51.6 of the Courts of Justice Act.

Presenting Counsel served and filed a Notice of Hearing summarizing the events of November 9 and 15, 2016 and alleged that Justice Zabel’s actions:[22]

• were contrary to the standard of conduct expected of a judge;
• had negatively impacted on public confidence in the administration of justice;
• had compromised the public’s perception of the independence of the judiciary from politics and constituted an expression of his own and his colleagues’ political views.

It was also alleged that Justice Zabel’s November 15 explanation was not consistent with the comments he made in court on November 9.[23]

The Notice of Hearing alleged that Justice Zabel’s actions constituted “judicial misconduct” that warranted a disposition under s. 51.6(11) of the Courts of Justice Act to preserve public confidence in the judiciary.[24]

Facts

Justice Zabel testified before the Ontario Judicial Council.  He stated that he ordered six red baseball hats from Amazon in June 2016, with the phrase “Make America Great Again” inscribed in white on the front. These hats were associated with Donald Trump’s U.S. presidential election campaign.[25]

On November 8, 2016, the day of the U.S. presidential election, Justice Zabel watched the live televised election results until late into the night. Justice Zabel testified that, on the morning of November 9, 2016, he thought people in the courtroom would be discussing Trump’s stunning victory. He stated that he thought “it would add a bit of humour by starting off the day with the hat, which was very ill-fitting – it looks very silly on me”.[26]

On the way to court, Justice Zabel encountered two of his fellow judges, Justice Culver and Justice Agro. Both commented adversely on the fact that he was going into court wearing the hat. Justice Agro testified that she told him: “Are you out of your mind?” Justice Zabel said that he was wearing the hat as a joke to mark a moment in history.[27]

There were several criminal matters on Justice Zabel’s list, and ten lawyers made appearances as the morning progressed. Members of the public and court staff were also present in the courtroom. There was some laughter when Justice Zabel entered the courtroom wearing the hat. After the clerk registrar announced that court was in session, Justice Zabel stated: “Just in celebration of a historic night in the United States. Unprecedented”.[28]

Justice Zabel took off the hat and placed it on the dais with the phrase “Make America Great Again” visible to those in the courtroom.[29]

Contrary to media reports, Justice Zabel took the hat when he left the courtroom for the morning break and did not wear or bring the hat after the break.[30]

At 2:20 p.m. as Justice Zabel was leaving the court room, Crown counsel stated: “You’ve lost your hat.” There was some laughter. Justice Zabel replied: “Brief appearance for the hat. Pissed off the rest of the judges because they all voted for Hillary, so [sic]. I was the only Trump supporter up there, but that’s okay”.[31]

Justice Zabel testified that he did not mean to say he was a Trump supporter, but rather that he was the only one among his colleagues who had predicted that Trump would win.[32]

On Friday, November 11, 2016, the Globe and Mail published a story reporting what had occurred in Justice Zabel’s court on November 9. The Globe story reported that:[33]

• Kim Stanton, the legal director of the Women’s Legal Education and Action Fund (“LEAF”), had expressed serious concerns that Justice Zabel had associated himself with Trump’s campaign. Ms. Stanton stated that she was concerned about Justice Zabel’s capacity to judge fairly since Trump made derogatory comments during his campaign about women, proposed a temporary ban on Muslims from entering the U.S., the deportation of undocumented immigrants, and planned to build a wall along the Mexican border.
• A Muslim lawyer was quoted as stating that many in his community would fear bias if they appeared in front of Justice Zabel.
• The Dean of Osgoode Hall Law School was quoted as stating that the incident did not amount to misconduct but required a warning.
• A prominent criminal lawyer indicated that Justice Zabel was a fine judge and suggested that the matter should be dealt with internally.

Justice Zabel testified that the Globe article was the first indication he had that his conduct had given rise to concern. He stated that he was “surprised and shocked at the response to my ill-considered joke” and that he reviewed the audio tape of the day’s proceedings. On Tuesday, November 15, 2016, his first day in court after the Globe story, Justice Zabel went into court, observed that there were members of the press present, and made the following statement:[34]

“This is the first time I’ve presided since the Globe and Mail article on Friday, November 11th, reporting that on Wednesday, November 9, I opened court wearing Mr. Trump’s signature campaign hat. The article was factually correct except that I did not come back with the hat after the morning break. What I did was wrong. 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. 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. I very much regret that it has been taken as such. I apologize for any offence or hurt caused by my thoughtlessness. I acknowledge that wearing the hat is a breach of the principles of judicial office and 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. 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.”

Following the media coverage of the events of November 9 and 15, 2016, the Ontario Judicial Council received 81 complaints with respect to Justice Zabel’s conduct. The complaints came from public interest organizations, law professors, lawyers, paralegals, and members of the public. Nine complaints came from legal organizations: LEAF; the Ontario Bar Association; the Canadian Bar Association of Black Lawyers; the Criminal Lawyers’ Association; the South Asian Bar Association of Toronto; the Canadian Muslim Lawyers Association jointly with the Canadian Association of Muslim Women in the Law; the Rights Advocacy Coalition for Equality; the HIV & Aids Legal Aid Clinic of Ontario jointly with the Canadian HIV/AIDS Legal Network; and the Roundtable of Diversity Associations.[35]

The common theme of all these complaints is that Justice Zabel’s conduct represented an unacceptable expression of partisan political views by a judge. Most complainants indicate a heightened concern as they perceive many of the things Trump said during his campaign to indicate misogynistic, racist, homophobic, and anti-Muslim attitudes. The complainants state that Justice Zabel has associated himself with those views by his conduct and that women and members of various vulnerable groups would reasonably fear that they would not be treated fairly and impartially by Justice Zabel.[36]

None of the complaints came from any of the people in Justice Zabel’s court on November 9, 2016, which included representatives of both the provincial and federal Attorneys General. Michael Wendl, one of the defence counsel who was before Justice Zabel on that date, wrote one of the many letters of support. He describes Justice Zabel as “the paradigm of judicial deportment”, adding:[37]

“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 biproduct 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.”

Analysis by Ontario Judicial Council’s Hearing Panel

Canadian judges are held to a high standard. The Supreme Court of Canada described the judicial function as “absolutely unique.” Judges resolve disputes, determine rights, and defend the fundamental rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms. As the Supreme Court stated: the “judge is the pillar of our entire justice system”.[38]

Maintaining confidence in the judiciary is essential to our democratic form of government. This means that “[t]he public will … demand virtually irreproachable conduct from anyone performing a judicial function” and that judges “must be and must give the appearance of being an example of impartiality, independence and integrity”.[39]

The separation of politics from the judiciary is a cornerstone of the rule of law and our democratic system of government. One of the most basic and fundamental principles of our justice system is that the judiciary is independent from politics. Judges must, at all times, remain above the political fray and they must conduct themselves so as to avoid any perception that the administration of justice will be influenced by their political views. Citizens must feel secure that the judge will decide their fate according to the law and the evidence. The expression of political views by judges, particularly in the courtroom, is inimical to these basic values.[40]

These principles are well-known and stated in ethical guidelines for judges. The Principles of Judicial Office for judges of the Ontario Court of Justice state:[41]

• 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 duties.
• Commentaries
  • Judges must not participate in any partisan political activity.
  • Judges must not contribute financially to any political party.

A similar statement can be found in the Canadian Judicial Council’s Ethical Principles for Judges:[42]

“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.”

The Ontario Judicial Council’s Hearing Panel noted that “given our proximity” to the U.S. and the enormous impact that our powerful neighbour has upon our daily lives, Canadians take a very lively interest in American politics. Our economic well-being and our sense of peace and security is affected by the President of the United States. Canadians have strong views on who should be elected to that office.

The Hearing Panel noted that The 2016 U.S. presidential election campaign was highly partisan and bitter. The candidates advocated strongly divergent policies. Many of Trump’s positions were provocative and controversial. If adopted, his policies on matters such as free trade, climate change, immigration, and national security would affect the daily lives of many Canadians. His views attracted wide attention in Canada and many Canadians expressed their strong disagreement with his policies. It was often stated that Trump’s policies were contrary to Canada’s interests and contrary to basic Canadian values. Many Canadians found his views on women, racialized minorities, and other vulnerable groups to be highly offensive. For a judge to appear to endorse Trump’s views would be perceived by the public to be an expression of opinion on issues of profound importance to Canadians. [43]

Although Justice Zabel insisted that he did not intend to indicate his support for Donald Trump – he testified that he was trying to make a joke about a result few had expected and that he was not expressing support for Trump, but rather celebrating his prediction that Trump would win the election[44] – the Ontario Judicial Council held as follows:[45]

“While Justice Zabel’s intentions are relevant, his conduct must be measured by an objective test… ‘The appearance of impartiality is to be assessed from the perspective of a reasonable, fair minded and informed person.’

What would a reasonable member of the public think upon seeing Justice Zabel enter the courtroom wearing Trump’s signature red “Make America Great Again” hat and state that he did so “in celebration of an historic event”? In our view, and indeed as Justice Zabel himself now acknowledges, a reasonable member of the public would think that Justice Zabel was making a political statement and endorsing Donald Trump’s campaign.”

The Hearing Panel found “that Justice Zabel’s actions amounted to a serious breach of the standards of judicial conduct, that it had an adverse impact upon public confidence in the judiciary and the administration of justice”, and warranted a sanction under s. 51.6(11) of the Courts of Justice Act.[46]

Sanction

The Judicial Council considered the following factors in its assessment of an appropriate sanction for the judicial misconduct:[47]

• Whether the misconduct is an isolated incident or evidenced a pattern of misconduct;
• The nature, extent and frequency of occurrence of the acts of misconduct;
• Whether the misconduct occurred in or out of the courtroom;
• Whether the misconduct occurred in the judge’s official capacity or in his private life;
• Whether the judge has acknowledged or recognized that the acts occurred;
• Whether the judge has evidenced an effort to change or modify his conduct;
• The length of service on the bench; viii. Whether there have been prior complaints about this judge;
• The effect the misconduct has upon the integrity of and respect for the judiciary; and
• The extent to which the judge exploited his position to satisfy his personal desires.

In addition, the Judicial Council addressed and incorporated the following two principles into its decision as the appropriate sanction:[48]

• Purpose of judicial misconduct proceedings is “essentially remedial”: When determining the appropriate sanction, the OJC should focus on what is “necessary in order to restore a loss of public confidence arising from the judicial conduct in issue.” The object is not to punish the judge. Rather, the purpose is to repair any damage to the integrity and repute of the administration of justice.
• Proportionality: “the Council should first consider the least serious disposition (sanction) – 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 Judicial Council noted that Justice Zabel had acknowledged that he violated the expected standard of judicial conduct, publicly apologized for his conduct on November 15, 2016, and apologized again before the Judicial Council Hearing Panel. Justice Zabel stated to the Hearing Panel that he understood how his attempt at humour was construed by many Ontarians as an endorsement of Donald Trump and an expression of support for his controversial views. He also agreed that his conduct had a negative impact on the administration of justice.[49]

The Hearing Panel recognized that the reader of the headline – “Judge wears ‘Make America Great Again’ hat into court” – would be very concerned about the capacity of that judge to carry out his judicial duties in an acceptable manner. But the reader of the whole story of the judge’s exemplary 27 year career, his sensitivity to matters such as race and gender, and the absence of any indication of prejudice or bias, might well see things differently. The Panel was satisfied that:[50]

“Justice Zabel does not hold any of the discriminatory views that the complainants attribute to Donald Trump. We are satisfied that members of vulnerable groups need have no fear about the treatment they would receive from Justice Zabel. Whatever Justice Zabel may have thought about the U.S. presidential election, and however serious his actions of November 9, 2016 may have been, his record on the bench and his reputation with his judicial colleagues and the bar demonstrates that he is an entirely fair minded and impartial judge who is dedicated to the highest ideals of his calling.”

However, the Hearing Panel also recognized that “perceptions matter”. It is a long-standing principle that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”.[51]

“Perceptions matter,” the judicial council panel said. “But reality also matters.”

– Globe and Mail[52]

Under all the circumstances the Ontario Judicial Council’s Hearing Panel ruled as follows:

[63] The choice of the appropriate disposition is a difficult one. On the one hand, Justice Zabel’s conduct on November 9 was a serious breach of judicial ethics. On the other hand, it is difficult to imagine how or why a judge of Justice Zabel’s experience and record of service conducted himself as he did and there appears to be no risk that he would ever be motivated by any of the political views that he appeared to endorse.

[64] Given the gravity of Justice Zabel’s conduct, it is our view that none of the less serious sanctions – warning, reprimand, ordering an apology, ordering remedial measures, or suspension with pay – are adequate. The choice we face is between the second most serious sanction, suspension without pay for 30 days, perhaps combined with other less serious sanctions, and recommending removal from office.

…

[66] After giving careful consideration to our difficult decision, we have come to the conclusion that a recommendation for removal from office is neither appropriate nor necessary in the circumstances of this case.

[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.

[68] We make the following disposition.

[69] We impose the most serious sanction permitted by law short of removal from office and suspend Justice Zabel without pay for 30 days.

[70] Combined with the suspension, we also reprimand Justice Zabel for his breach of the fundamental principle of judicial conduct that 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.

Justice Zabel … has been deeply affected by the public shame he has brought upon himself and the justice system he serves. He is a man proud of his professional achievements and his record of judicial service, and he is paying a very public price for his transgression.

– Ontario Judicial Council, Hearing Panel, September 11, 2017[53]

Conclusion

Justice Bernd Zabel once said wearing a pro-Donald Trump “Make America Great Again” hat to court the day after the U.S. election was the biggest mistake of his judicial career.[54]

At least one legal organization that complained about Justice Zabel to the Ontario Judicial Council have stated that despite the ruling, they maintained their position that he should have been removed from office.[55] This sentiment is in line with the Judicial Council’s acknowledgement of the “tumultuous political climate in the United States” and that the election was “highly partisan and bitter”.[56]

The Hearing Panel fairly addressed this difficult issue, evidence and law, noting that “whatever Justice Zabel may have thought about the U.S. presidential election, and however serious his actions of Nov. 9, 2016, may have been, his record on the bench and his reputation with his judicial colleagues and the bar demonstrates that he is an entirely fair-minded and impartial judge who is dedicated to the highest ideals of his calling”.[57]

Duff Conacher, a law and political science professor at the University of Ottawa and co-founder of the advocacy group Democracy Watch, said that Zabel’s penalty feels appropriate, given his decades of service without complaints or appearance of bias. … “Our system of government is based on having independent judges. It is fundamental to our democracy. But I don’t think that it justified firing”.

– Canadian Broadcasting Corporation[58]

The suspension was the most serious sanction that the Ontario Judicial Council could impose, short of dismissing the judge.[59]

Eric Sigurdson

Endnotes:

[1] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 28.

[2] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 1. See, Alex Robinson, OJC suspends judge who wore Trump hat, Canadian Lawyer, September 12, 2017; Ontario Judge Bernd Zabel suspended for wearing Trump hat, BBC.com, September 12, 2017; Jacques Gallant, Hamilton judge who wore Trump hat suspended, Toronto Star, September 12, 2017; Adam Carter, Canadian judge who wore Trump hat in court suspended for 30 days, CBC.ca, September 12, 2017; Sean Fine, Ontario judge who wore Trump hat in court suspended without pay for 30 days, Globe and Mail, September 12, 2017; Canadian Press, Ontario judge who wore Trump hat in court suspended without pay for 30 days, National Post, September 12, 2017; Christie Blatchford, Give thanks panel didn’t overreact to judge who wore Trump hat, National Post, September 12, 2017.

[3] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 32.

[4] Re Therrien, 2001 SCC 35, [2001] 2 S.C.R. 3, at para. 108-109; In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 26.

[5] Re Therrien, 2001 SCC 35, [2001] 2 S.C.R. 3, at para. 111; In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 27.

[6] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 28.

[7] Ontario Judge Bernd Zabel suspended for wearing Trump hat, BBC.com, September 12, 2017.

[8] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 35; Ontario Judge Bernd Zabel suspended for wearing Trump hat, BBC.com, September 12, 2017.

[9] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 37.

[10] Alex Robinson, OJC suspends judge who wore Trump hat, Canadian Lawyer, September 12, 2017.

[11] Alex Robinson, OJC suspends judge who wore Trump hat, Canadian Lawyer, September 12, 2017.

[12] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 66-67.

[13] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 70.

[14] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 1.

[15] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 22.

[16] Alex Robinson, OJC suspends judge who wore Trump hat, Canadian Lawyer, September 12, 2017.

[17] Courts of Justice Act, R.S.O. 1990, c. C.43, section 10; Ontario Court of Justice, About the Court, OntarioCourts.ca; Superior Court of Justice, About the Superior Court, OntarioCourts.ca.

[18] Ontario Court of Justice, About the Court, OntarioCourts.ca.

[19] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 5.

[20] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 5.

[21] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 23.

[22] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 24.

[23] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 24.

[24] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 24.

[25] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 6.

[26] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 8-9.

[27] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 9.

[28] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 10.

[29] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 10.

[30] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 12.

[31] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 14.

[32] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 14.

[33] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 16.

[34] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 17-18.

[35] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 19.

[36] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 20.

[37] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 21.

[38] Re Therrien, 2001 SCC 35, [2001] 2 S.C.R. 3, at para. 108-109; In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 26.

[39] Re Therrien, 2001 SCC 35, [2001] 2 S.C.R. 3, at para. 111; In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 27.

[40] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 28.

[41] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 29.

[42] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 30.

[43] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 32.

[44] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 33.

[45] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 34-35.

[46] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 37.

[47] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 41.

[48] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 42-44.

[49] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 48.

[50] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 59 and 62.

[51] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para.60.

[52] Sean Fine, Ontario judge who wore Trump hat in court suspended without pay for 30 days, Globe and Mail, September 12, 2017.

[53] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 71.

[54] Jacques Gallant, Hamilton judge who wore Trump hat suspended, Toronto Star, September 12, 2017.

[55] Jacques Gallant, Hamilton judge who wore Trump hat suspended, Toronto Star, September 12, 2017.

[56] Adam Carter, Canadian judge who wore Trump hat in court suspended for 30 days, CBC.ca, September 12, 2017.

[57] In The Matter of 81 complaints respecting the Honourable Justice Bernd Zabel (A Judge of the Ontario Court of Justice), Reasons for Decision, Ontario Judicial Council (Hearing Panel: Justice Robert Sharpe of Ontario Court of Appeal, Justice Leslie Pringle of the Ontario Court of Justice, Christopher Bredt a Lawyer member, and Farsa Kiani a community member, September 11, 2011, para. 59.

[58] Adam Carter, Canadian judge who wore Trump hat in court suspended for 30 days, CBC.ca, September 12, 2017.

[59] Adam Carter, Canadian judge who wore Trump hat in court suspended for 30 days, CBC.ca, September 12, 2017.