Calls for reprimanding Mr. Justice Bernd Zabel of the Ontario Court of Justice, who strode onto the bench in Hamilton wearing a “Make America Great Again” hat the morning after the election of Donald Trump last week, miss the mark and will not lead to a proper addressing of the harm he has done.

Judges, acting together with Crown attorneys and defence lawyers, makeup the troika of players constituting the adversarial system which, however imperfect, is one of the greatest tools for achieving justice civilized society has ever created.

It requires Crowns and defence lawyers to set aside their personal feelings and sometimes prosecute laws and offenders they don’t personally believe should be prosecuted, in the case of the former, and, in the case of the latter, to defend people they sometimes find personally repugnant. Both of these participants in the system know if they cannot set aside their personal feelings and play their roles faithfully and consistently it is time for them to get out, to quit.

Judges have an entirely different role to play, to fairly arbitrate between the two adversaries for justice, a role that depends upon being scrupulously impartial. When they become judges, they must do everything they can to purge themselves of any biases and prejudices they have and constantly fight against them creeping back into their conduct of proceedings and their deliberations.

Now, no one in the system is naive enough to believe Crown and defence lawyers always try as hard as they should, and certainly no one is under the illusion all judges are always entirely impartial. The public must tolerate this reality because the players in the system are imperfect human beings.

The one thing the public must not tolerate, however, is the players failing to always give the appearance of fulfilling their roles faithfully.

This brings us to the shocking behaviour of Justice Zabel last Wednesday.

First, we do not wear hats in a courtroom as an ancient form of recognition of the solemnity of what is happening inside them. It is a show of respect for the fact people’s liberty is at stake.

But this is not what was shocking about Justice Zabel’s behaviour. It was his scorning of the appearance of impartiality. His act was more than foolish, as some commentators have observed, it was contemptuous of our entire judicial system. Justice Zabel knew his act could only be seen as making it absolutely clear there were at least some very impartial personal beliefs he was going to be applying in regard to the proceedings and the souls who would come before him that morning and he did it anyway.

He should not, however, be punished for it. That punishment would not come fast enough and maybe not in time at all as he is apparently near retirement. Only Justice Zabel himself can make this right.

Aside from the many repugnant beliefs that hat has come to represent for many Canadians, it supposedly represents some very honourable ones for the people who wear them, including the belief in taking personal responsibility for one’s actions, in personal sacrifice and in being dutiful to the ideals that hold a democratic society together.

If this is true, to show he wore that hat for these noble reasons and not the repugnant ones, Justice Zabel knows he must resign. He knows the apology he has made does not go nearly far enough. He knows it is time for him, too, to get out, to quit — and to explain why an apology is not enough.

It is only in this way that he can hope to restore the shine to judicial impartiality he has so badly tarnished. Too many of his colleagues on the bench work tirelessly to maintain the appearance of impartiality — and to be impartial — to deserve to have their work painted over by his brush.

Justice Zabel has to go out a hero for a system that strives to treat all equally and decently, not become a hero for those who would have it become a proponent for their hatreds.

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It is its people doing the honourable thing that gives a country its greatness.

Reid Rusonik is a Toronto criminal defence lawyer and managing partner of Rusonik, O’Connor, Robbins, Ross, Gorham & Angelini, LLP.

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