Tom Melnick reflects on judicial career

Cranbrook's only Supreme Court judge wrapping up final project with the B.C. Electoral Boundaries Commission.

Tom Melnick

Tom Melnick

After a legal career spanning almost 50 years, Justice Tom Melnick is set to retire.

If he had his way, he’d already be off the judicial bench and tending to his vegetable garden at his house outside Cranbrook, but there is one last project to wrap up before he, in his own words, fades away “like the mist drifting off into the trees.”

Sitting as the only Supreme Court justice in Cranbrook since 1990, Melnick is all but retired, save for his work as one of three panelists working on a preliminary report to identify any issues with B.C.’s electoral boundaries. Once the report is submitted to the legislature, it’s up to the MLA’s to suggest any amendments before it gets approved and cemented into law.

His office, on the second floor of the Cranbrook Law Courts, is situated right behind Supreme Court chambers and overlooks Rotary Park. The hallways, carpeted with red, are lined with portraits of his predecessors, dating back to 1905.

Melnick is currently working half-time to wrap up his work with the Electoral Boundaries Commission, but once he’s fully retired, it looks like there won’t be a Supreme Court justice replacement in Cranbrook for the immediate future, he said.

“At the present time, no. That was an issue that was up in the air until the end of last summer, early September,” said Melnick.

“I think part of the reasoning behind that was that the volume of work in our court— and it’s not just Cranbrook, it’s largely throughout rural courts—is not as high as it once was.”

That could be a sign of falling crime rates, or the expense at which it costs to run a jury trial, he added. If the work isn’t there, trial co-ordinators around the province will request Supreme Court judges—regardless of where they live—to run trials in other jurisdictions. That usually means presiding on trials in the larger population centres of the Lower Mainland.

“For a full-time judge living here, it’d be tough, it is tough,” said Melnick. “But that’s not to say I’m not supportive of the idea of there being a judge here to replace me. “Quite frankly, I’ve told the bar, and I don’t mind repeating it, I think it’s a good idea.

I hope that circumstances are such, at one point, that there can be, but apparently, right now, given the balance of where they need judge time, they just felt that it doesn’t warrant there being a full time judge here.”

As it currently stands, if there is need for a Supreme Court judge, a trial-co-ordinator in Kamloops will schedule one, wherever there is one available in the province, to preside over matters in Cranbrook.

Prior to serving as a full-time Supreme Court judge, Melnick worked as a lawyer, and ran his own practice working in criminal and civil cases.

After obtaining his law degree at University of Western Ontario, he took a vacation out to Vancouver and promptly decided not to return to the Big Smoke, where he had wrapped up his articles.

“Who in his right mind would stay in Toronto when they can move to Vancouver?” joked Melnick.

He had plans to go to graduate school and wanted to work in the B.C. Interior to save up some money, choosing Cranbrook as a compromise between civilization and a better paycheque.

“I thought, ‘well, I’ll come to Cranbrook and work here for a year or two’,” said Melnick. “I met my wife here and somehow I never left. Never regretted it either.”

His legal career consisted of working as a trial lawyer, both as a prosecutor and as defence counsel. Back in those days, there wasn’t a dedicated Crown counsel office, and he would often be contracted out as an ad-hoc prosecutor, working with a counterpart from the West Kootenays. Eventually, he moved away from criminal law and focused on civil matters, while keeping a wide berth from family law cases.

“The ironic part of things, is once I got to be a judge,” said Melnick, “two of the areas I therefore ended up doing the most of was criminal law and family law, the two areas that—as my practice matured—I did the least of.

“But that’s the way it goes.”

Called to the bar in 1968, Melnick worked first for Graham and Company before moving on to become a partner with Melnick, Carlgren and Erickson in 1970. Ten years later, he joined Steidl, Kambeitz, Melnick and Donald as partner.

Melnick headed to Vancouver for a brief stint in 1985 and was appointed the designation of Queen’s Counsel, a distinction that recognizes community service, advocacy and others in need of legal aid.

In addition to working as a lawyer, he also served in various legal organizations such as president of the Kootenay Bar Association, chair of the Professional Standards Committee for the Law Society of B.C. and a member of the National Judicial Ethics Advisory Committee.

In 1987, he returned to Cranbrook as a county court judge, before it merged into the Supreme Court in July 1990.

After 19 years as a lawyer, it was a sudden change to be on the other side of the judicial bench.

“Probably the most significant change was that you’re on the receiving end, rather than the giving end. And you also have a different approach to a trial than you do when you’re a counsel,” said Melnick. “As a counsel, you do whatever you can legally do to secure the result favourable to the client.

“You do consider both sides because you’d be dumb if you don’t look at what your opponent is doing and try to figure out how to deal with that. But you’re looking at that from a perspective of one side, because we have an adversarial system.

“As a judge of course, you have to take those submissions from both sides, and the evidence from both sides and try to make sense of it and come out with a decision that, not balances it, because that’s not what you’re there for, you’re there to decide which way it goes, and that’s quite a different mental process.”

Melnick was able to lean on his experience conducting jury trials as a lawyer when he transitioned to the bench, where he presided over many kinds of cases and criminal activity.

One such case—R. vs Williams in 1992—involved a man who was convicted of first-degree murder in the death of a young woman in Golden. It was a significant case because it was just the second time in B.C. that DNA evidence was used in the pursuit of a conviction.

“It was murder trial, and it was really interesting because DNA evidence was so new everywhere, particularly in Canada, that we had all of the experts from government labs coming to give evidence to educate everyone what DNA evidence was all about.,” said Melnick.

“It was an extremely difficult case to prove, mostly circumstantial evidence that probably wouldn’t have been capable of proof without DNA evidence, but they found DNA evidence from him on her clothing and were able to tie it together, so that was an interesting one.”

However, he presided over more than just criminal cases, and had a part to play in a political scandal in the mid-1990s, where the B.C. Securities Commission investigated former B.C. premier Bill Bennett and a company—Dorman Securities—for insider trading.

While in Vancouver, Melnick was called down to the courthouse and asked to preside over an adjournment of a hearing between Bennett and the commission. Melnick ended up rejecting the adjournment, which allowed the commission to pursue an investigation of Bennett, his brother Russell, and Harbanse Singh Dorman, which eventually culminated in trading sanctions and payment of $1 million to cover the cost.

“It was a fascinating piece of work because of the issues involved and, in part, because of the people involved,” said Melnick. “I made a decision that the securities commission could pursue them and that was upheld by the court of appeal and it went to the Supreme Court of Canada and the Supreme Court of Canada refused the appeal.

“So it went all the way up and they confirmed my decision, but it was a real tough decision to write because it was complex.”

However, the hardest cases tend to be the family law cases, especially ones involving children, added Melnick. While most tend to settle before getting to court, the issues are tough to sort out in a fair and balanced fashion once it gets to chambers.

It all comes down to making the best decision for the children, if there are any involved.

“I’ve found those types of decisions the most difficult because of the emotional overlay involved and the consequences for the kids. You always want, to the best of your ability, to get it right for them, if you possibly can,” Melnick said.

Eight years ago, Melnick elected to work half time. A year following that, he took the opportunity to forgo presiding over jury trials. Depending on how the Electoral Boundaries Commission report is received in the legislature, he’ll be able to retire permanently within the next year or so.

His portrait will remain on the hallway behind the Supreme Court chamber with his predecessors, but time will tell if another one joins it.

“I’ve got a sense that the bar hasn’t given up,” said Melnick, “that they’d like to see someone here that’s a resident here, and I hope it happens, but it isn’t going to happen in the near future.”