First Comes Trump Hat, Then Comes Racism

criminal law

Yet Another Incident from the Ontario Court of Justice Raises Concerns About Those Presiding.

A Justice of the Peace, presiding in Kenora, Ontario, decided that it was appropriate to make a racist remark, on the record, to an Aboriginal duty counsel in bail court this past August.

Yes, you read that correctly.

According to a court transcript, Justice of the Peace Robert McNally said the following in open court: “Sometimes I think we’re in the middle of a Benny Hill set here. Nobody knows who Benny Hill is.” Shannon McDunnough, who is Mi’kmaq and defence counsel from Legal Aid Ontario, responded by confirming that she knew who Benny Hill was.

Then, for reasons completely unknown or understood, McNally replied: “Your ancestors probably scalped him or something.” Scalping, though possibly originating from Europe and Asia, is more widely associated with North American Aboriginals. Scalping involved removing the skin of the scalp from the skull of one’s enemy, which often caused death.

Isn’t this the real problem: that individuals who align themselves with a racist consciousness, either knowingly or ignorantly, are sitting quite literally on a pedestal and making life altering decisions for black and aboriginal people, and all other types of minorities that come before the court?Thankfully, McNally’s shocking comments are the subject of a formal joint complaint filed by Nishnawbe-Aski Legal Services, Grand Council Treaty No. 3, and the Criminal Lawyers’ Association. The complaint has been filed with the Justices of the Peace Review Council, requesting that McNally be removed from his position.

In a somewhat similar fashion, on November 9th, 2016, Justice Zabel who was also presiding in an Ontario Court, wore a “Make America Great Again” hat into open court and later said on the record: “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 okay.” The hat remained perched on the edge of his courtroom desk, with the words facing towards the gallery for the entire day. Justice Zabel has since received a 30 day suspension without pay for his actions.

What’s troubling about both Justice Zabel and JP McNally’s comments is that they are meant to preside in court, with the pledge, responsibility and promise to remain impartial when adjudicating every case. Justice Zabel and JP McNally make multiple decisions everyday that affect the lives of those they preside over. Flaunting and fearlessly exposing their beliefs that are problematic and rooted or connected to racist stereotypes and ideology is more than offensive when it comes out of the mouth of people who have been trusted to make some of the most important decisions in our lives. Yet nonetheless, both Justice Zabel and JP McNally chose to state their comments, in open court, without due regard for the awesome responsibility of neutrality that they’ve been tasked to convey— and represent.

But does condemning their public comments mean that we’re content with these individuals going home and thinking the same things, as long as they don’t say it out loud in the courtroom? Isn’t this the real problem: that individuals who align themselves with a racist consciousness, either knowingly or ignorantly, are sitting quite literally on a pedestal and making life altering decisions for black and aboriginal people, and all other types of minorities that come before the court? While we certainly can’t demand that Justice Zabel align his personal political views with what the left-wing public prefers, what we can do is question the integrity of the justice system when it’s foremost players express concerning ideologies and sentiments that can affect their abilities to decide a case on their merits.

What’s troubling about both Justice Zabel and JP McNally’s comments is that they are meant to preside in court, with the pledge, responsibility and promise to remain impartial when adjudicating every case. How can we even prevent JP McNally from having racist thoughts pass through his mind? Can we educate him to not think those things, or can we simply censor his stream of consciousness from being verbalized in the courtroom? Is he still not unqualified to adjudicate if he simply thinks these things but doesn’t say them?

Only time will tell what the decision will be with regards to JP McNally. But if Justice Zabel can express his allegiance with one of the most sexist, racist and morally repugnant political figures in our history while presiding in open court, I’m not holding my breath that JP McNally’s joke will be handled any more seriously. Hopefully I am wrong: because anything less than his removal is unacceptable.

Authors:

Melody Izadi

Melody is a criminal defence lawyer with the firm Caramanna Friedberg LLP, located in Toronto, Ontario.

 


A Publication of CPLEA