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Populism Paranoia Is Having a Chilling Effect on Canadian Public Discourse: Is There Room for Politics in the Courtroom?


Populism Paranoia Is Having a Chilling Effect on Canadian Public Discourse: Is There Room for Politics in the Courtroom?

Shortly after the presidential election, Trump-inspired sentiments invaded a Hamilton courtroom. Ontario Court Justice Bernd Zabel has been criticized for his actions after entering a hearing and setting a “Make America Great Again” baseball cap on his dais – a slogan that has become synonymous with president-elect Donald Trump.

The reaction – or overreaction – has been swift: Justice Zabel’s actions have been condemned by some members of the Canadian elite and the ruling class as being insensitive and inappropriate. Several Canadian legal bodies have now lodged formal complaints, including LEAF (Women’s Legal Education and Action Fund) and the University of Windsor Faculty of Law. And Justice Zabel has since provided a public mea culpa and apologized for any hurt caused by the incident on November 9.

But is this a measured and appropriate response to a slogan on a baseball cap? Have we turned into a “cupcake” society? Send in the play doh, colouring books and therapy dogs (a recent trend at many U.S. Colleges and Universities to help their students cope with the recent election of Donald Trump).

Admittedly, Canadian values have seemingly been placed at odds in the public debate that has followed Justice Zabel’s conduct, with focus on some key questions: Should Justice Zabel have avoided this political statement in order to uphold the public’s confidence in the Canadian judicial system? Or should free public discourse and expression prevail?

Canadians have closely followed the manner in which Donald Trump’s campaign has unfolded, and with it the allegations by mainstream media on both sides of the border that there has been a corresponding upsurge of racism and intolerance throughout our neighbouring country. And there is no doubt populism is on the rise throughout the world. There appears to be a real disconnect between democratically elected officials and the public at large.

On one hand, populism in America seems to be having a chilling affect our own public discourse and expression. Yet freedom of expression is a fundamental value upon which Canada was built. Critics who follow the storm of public discourse surrounding Justice Zabel have suggested that “freedom of speech” only seems to apply when one falls in line with the trends of the accepted political climate. If Justice Zabel had instead shown support for his favourite sports team, there may have been no issue at all. Unfortunately for Justice Zabel, it appears that his views collided with those of some members of the Canadian elite and a few in the ruling class. The jury is still out as to whether these beliefs are contrary to broader Canadian public opinion.

True, in their government-appointed role as Ontario Court Justice, judges like Justice Zabel are expected to be neutral and non-partisan. So his arguably political behaviour in the courtroom could have wide-ranging repercussions across all areas of litigation; for example it has since been suggested that marginalized individuals who appear before him may feel as though the judiciary is deeply biased against them.

This seems more like conjecture than conclusion. Once again, let’s send in the Play-Doh, colouring books and therapy dogs.

What are your thoughts?

Should judges be allowed to express their personal or political views in the courtroom? Would this have been a different situation had Justice Zabel worn a cap in support of the Raptors or the Blue Jays?