598 THE ADVOCATE
VOL. 78 PART 4 JULY 2020
courtroom that the seasoned gladiator was not entirely comfortable with
the shackles imposed upon him by his client.
Having turned down the offer once before, Tom accepted an appointment
to the bench in 1990 as he approached his 60th birthday. Characteristically,
when asked of the case he is most proud of in his time as a trial
judge, he named an obscure matrimonial case. The wife had made the most
horrible allegations against the husband involving the children and had
obtained an ex parte order excluding him from the home. On the fifth and
final day of the trial, having concluded that the wife was lying and had
brainwashed the children, Tom granted an order putting the children in the
care of the husband and barring the wife from any access for six months.
After delivering judgment, he asked the husband’s sister to come forward.
Saying he had absolutely no jurisdiction to do so, he asked if she would consider
living with her brother for the first month to help look after the children.
Years later, after retiring from the Court of Appeal, Tom received a
letter from the sister saying what a benefit his order had been to the children
and updating him on how well they turned out.
In 1996 Tom was appointed to the Court of Appeal. He thought he would
miss the juries and witnesses, but he thoroughly enjoyed it. His judgments
were shorter than those of his colleagues but went directly to the point. His
longest judgment was in R. v. Malmo-Levine—163 paragraphs.4 It was a
majority decision with Rowles J.A. concurring, and it was later upheld by
the Supreme Court of Canada. The issue was whether the legal prohibition
of possession of marijuana was contrary to s. 7 of the Charter. The judgment
reflects Tom’s unique combination of high intellectual skills, understanding
of the Canadian constitutional balance and sound, down-to-earth common
sense. His analysis draws upon the writings of John Stuart Mill and James
Fitzjames Stephen and concludes with an application of modern conditions
and experience. The following is typical of his style of expression:
I conclude that on the basis of all of these sources – common law, Law
Reform Commissions, the federalism cases, Charter litigation – that the
“harm principle” is indeed a principle of fundamental justice within the
meaning of s. 7. It is a legal principle and it is concise. Moreover, there is
a consensus among reasonable people that it is vital to our system of justice.
Indeed, I think that it is common sense that you don’t go to jail
unless there is a potential that your activities will cause harm to others.5
After his retirement at the end of 2005, as he was about to turn 75, Tom
returned to his former firm, now MacKenzie Fujisawa LLP, and entered the
third phase of a long and varied career. Within a short time he was in the
public eye again as he undertook two public commissions in relation to the
death of Robert Dziekanski at Vancouver International Airport. The first