A Hamilton judge who wore a “Make America Great Again” hat to court the day after the U.S. election and declared his support for president-elect Donald Trump is no longer hearing cases.

Justice Bernd Zabel, appointed to the bench in 1990, stopped being assigned new cases on Dec. 21, 2016, a spokeswoman for the Ontario Court of Justice told the Star in a brief statement Thursday.

“I am not able to provide other details. The Chief Justice is not able to comment further on this matter,” said spokeswoman Kate Andrew.

As first reported by The Globe and Mail, Zabel showed up for court the morning after the Nov. 8 election wearing a red “Make America Great Again” ball cap. The Globe reported he then placed the hat on the bench in front of him. Critics said this showed a lack of impartiality, crucial to the role of a judge.

Almost a week later, Zabel apologized for wearing the hat, acknowledging in court that it was a “lapse in judgment” and “a breach of the principles of judicial office.” He said it was his attempt at humour.

“This gesture was 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,” he said.

But the sincerity of his apology came into question when the Star obtained a transcript showing that Zabel explicitly said he supported Trump in court on Nov. 9.

“Brief appearance with the hat. Pissed off the rest of the judges because they all voted for Hillary, so. I was the only Trump supporter up there but that’s OK,” Zabel said just before court closed, according to the certified transcript.

Following the reports of Zabel wearing the hat, a number of individuals and organizations, including the Criminal Lawyers’ Association, made formal complaints about the judge to the Ontario Judicial Council, which has the power to investigate judges’ conduct and suspend them or recommend to the Attorney General that they be removed from office.

The council has yet to indicate the outcome of those complaints.

“It’s clear that the Office of the Chief Justice has taken the complaints seriously,” said lawyer Daniel Brown, a Toronto director of the CLA.

“It’s an appropriate response given the nature of the complaints and should continue until a full investigation is complete.”

Counsel with cases before a judge who’s no longer presiding in court must wait for direction from the Crown’s office, Peter Boushy, a Hamilton defence lawyer noted, but declined to speak specifically about the Zabel matter.

A case could be reheard or continue with another judge handling the proceedings, Boushy said.

All complaints filed to the Ontario Judicial Council are assigned to a two-person subcommittee made up of a judge and a community member for a private investigation.

The resulting report is then put before a four-person panel for review.

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From there, the complaint can be dismissed, referred to the Chief Justice of Ontario (who will speak to the judge), or examined in a formal public hearing.

There’s no timeline for when the panel must reach a decision.

If a judge is found to have committed professional misconduct by the judicial council, possible sanctions include a reprimand, suspension or recommendation to the Attorney General that the judge be removed from office.

With files from the Hamilton Spectator

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