Judge who wore Trump hat in court says he doesn't support American president

Though he wore a "Make America Great Again" hat in court a day after Donald Trump's U.S. election win, a Hamilton judge says he is not a Trump supporter, and was only trying to make people laugh.

Justice Bernd Zabel told a four-person disciplinary panel in Toronto today that he has "profound regret" over wearing the hat in court on Nov. 9, 2016.

"I was in a state of disbelief," Zabel said of the election outcome. "I couldn't believe it had happened."

"What I did was wrong. I wish to apologize for my misguided attempt for humour in the courtroom."

I remember the day all too well because frankly, I deeply regret not ripping that hat off his head.- Justice Marjoh Agro

Though he said he understands how it appears his actions would show support for Trump, Zabel said he was actually "gloating" over the fact that he had correctly predicted the divisive business magnate could win the election.

"I'm not a Donald Trump supporter, I predicted that Trump would win," he said.

Eighty-one people complained to the Ontario Judicial Council after Zabel wore the hat in court in November, and the 27-year veteran judge stopped hearing cases in December. In Ontario, judges are supposed to be politically impartial in courtrooms. 

The complaints came from a variety of sources, including private citizens, the Ontario Bar Association, the Canadian Association of Black Lawyers and the South Asian Bar Association of Toronto.

"The man depicted in those complaints is not me," Zabel said. "I'm not a racist, I'm not a bigot, I'm not a misogynist."

Banter about the election

When Zabel wore the hat, he said in court that it was "just in celebration of a historic night in the United States. Unprecedented." He then put the hat on the dais at the front of the courtroom.

Later that day, he bantered with lawyers in court about the election. Zabel said during the hearing on Wednesday that court had been adjourned at that time, and he didn't know he was being recorded.

In that recording, played during the hearing, Crown attorney Janet Booy said, "You've lost your hat."

"Brief appearance for the hat," Zabel responded. "Pissed off the rest of the judges because they all voted for Hillary [Clinton], so. I was the only Trump supporter up there, but that's OK."

When pressed about his choice of words, Zabel told the hearing he meant to say, "I'm the only one who predicted Trump would win," not that he was a "Trump supporter."

Colleague asked if he was out of his mind

After the episode made the news, Zabel apologized in court on Nov. 15. He called it "misguided attempts to mark a moment in history by humour in the courtroom following the surprising results in the United States election."

At Wednesday's hearing, Zabel's lawyer, Ricardo Federico, said the judge collects historic memorabilia, and that his collection includes a painting of John F. Kennedy.

Zabel said he had ordered five Trump hats from Amazon after Trump won the Republican nomination, four of which he gave away to friends.

Federico called an assistant Crown attorney and another Hamilton judge, Marjoh Agro, to testify to Zabel's impartiality as a judge.

Agro testified she saw Zabel wearing the hat that day, just before he entered court. "I looked at him and said, 'Are you out of your mind?'" she said.

"I remember the day all too well because frankly, I deeply regret not ripping that hat off his head."

Agro also said she has no qualms about Zabel's impartiality, or his ability to serve as a judge. There were 62 letters of support for Zabel submitted to the hearing panel that praised his ethics.

"Judges are human beings. We watch television, we listen to radio, we read newspapers. We do have opinions. We talk about politics, we talk about public policy," Agro said. "We don't live in rabbit holes."

Restoring public confidence

Federico also said Zabel only wore the hat once — not twice, as media reports suggest — and that none of the 81 complaints levied against him came from anyone in Zabel's courtroom on Nov. 9. 

But presenting counsel Linda Rothsein said the hearing is about restoring public confidence.

"The image that the judge projects to the world in everything he or she does in the courtroom … is hugely important to Canadians' perception in the fairness of their justice system," she said.

"His hat was very clearly and easily identified with a partisan interest, and a political party ... and his words went even further. Lest there be any doubt, his words celebrated the result of the American election, and his words said he was a Trump supporter."

Now that the hearing is complete, the panel has the option to dismiss the complaints, or warn, reprimand or suspend Zabel with or without pay for up to 30 days. It could also recommend the attorney general remove him from office.

Zabel's lawyers suggested a warning and a formal reprimand, or, if the panel decides a harsher penalty is warranted, that Zabel would forgo paid holidays to which he's entitled, so that he can get back to work.

No timetable was set for a decision to be released.

CBC Hamilton reporter Adam Carter covered the hearing live. You can view a recap of his live blog below.

On mobile? View it here.

adam.carter@cbc.ca