On November 9, 2016, Honourable Mr. Justice Bernd Zabel walked into the John Sopinka Courthouse wearing a red cap with Donald Trump’s campaign slogan, “Make America Great Again”. He then removed the cap and placed it on the bench. Within days, the Criminal Lawyers’ Association (“CLA”) filed a formal complaint against Justice Zabel and CLA President, Anthony Moustacalis, made the following comments:
Justice Zabel was then suspended as of December 21, 2016. According to the Toronto Star, Zabel’s initial comment was "Brief appearance with the hat. Pissed off the rest of the judges because they all voted for Hillary so ..." http://www.cbc.ca/news/canada/hamilton/hamilton-judge-who-wore-trump-hat-no-longer-allowed-to-hear-cases-1.3923935
Although he subsequently apologized, I am afraid that Justice Zabel is held at a high standard, particularly if he is to continue adjudicating. He is criticized for his childish humour, bad judgment, political bias, supporting Trump’s discriminatory and unconstitutional comments, and an overall disregard for the neutrality underlying the very being notion of the judicial branch.
What struck me the most, however, was Anthony Moustacalis’ critique of Justice Zabel’s expectation that people laugh at his silly comments in deference to his position in the courtroom. Earlier in my career, I would have been convinced to oblige. I had strived to have this type of a grandiose view of my own talents. For a long time, I had admired the overly confident, ‘talk-down-to-clients’ model of a successful lawyer. I was striving to adopt this attitude because I was afraid to show weakness, lack of knowledge, and lack of experience.
The truth is that Justice Zabel is not the only legal professional that has or is capable of displaying judicial bias. The profession is built on relationships (how to get on the good side of judges and lawyers), reputation (how to get on the good side of judges and lawyers), experience (how to get on the good side of judges and lawyers) and knowledge (how did I get on the good side of judges and lawyers). A judicial decision is formulated within this matrix and, while many judges can step outside the bounds of this matrix if faced with the appropriate facts and litigants, there remains the overarching concept of reasonable apprehension of bias.
I ask myself: where do we draw the line between a professional relationship and between reasonable apprehension of bias? The judge that says: “Hello Mr. Smith, good to see you in my court room again”; or the defence lawyer that went to school with the Crown prosecutor; or the judge that complains about the lawyer’s inappropriate outfit; or the judge that is known to convict; or the judge that takes into account the senior lawyer’s arguments but does not take into account the junior lawyer’s similar submissions; or the judge that intimidates. All of which may be free of actual bias…but does it really matter?
As I was told time and time again, it is a closely knit profession, and some degree of relationship between the players is unavoidable. But is it fair that Defendant A gets a lesser sentence than Defendant B because his lawyer had a better reputation? Where, oh where, do we draw the line?
As I conclude these thoughts, I realize that I no longer seek what I once sought – to become stronger, disengaged, perhaps even intimidating. I now want to develop my own idiosyncrasies of practicing law. I want to view each client as an opportunity to use facts, strategy and hard work to service; I want to face each judge, whether it is a nurturing judge or a Zabel-type judge, and each opposing lawyer, with modesty, self-reliance, and with the ability to divert any comment back to the basics: efficient representation of my client. Bias or no bias.