Constitutional expert a major influence

Constitutional expert a major influence

Constitutional expert a major influence

Peter Hogg's work speaks volumes, KIRK MAKIN writes, and tributes are flowing in for the scholar who almost retired unnoticed

By Kirk Makin - The Globe and Mail, Monday, September 29, 2003 - Page B16

The chances of graduating from a Canadian law school without knowing the work of Peter Hogg range from zero to infinitesimal.

A constant of the legal landscape for 30 years, Prof. Hogg's nature is so modest and unassuming that he almost got away with slipping into retirement unnoticed this year.

Almost.

Several months after the constitutional scholar left the dean's office at York University's Osgoode Hall Law School, the tributes are under way. In August, for instance, he received the Canadian Bar Association's lifetime achievement award. An Ontario Bar Association Charter of Rights conference next week will feature several speeches in his honour.

What has Prof. Hogg meant to the law? One statistic speaks volumes: He has been cited in Supreme Court of Canada rulings a remarkable 166 times -- far more than any other writer.

"The first few times I was cited, I found it quite exciting," says Prof. Hogg, a transplanted New Zealander who arrived in Canada in 1963. "I've gotten more used to it these days, but I still find it flattering."

His lasting contributions include a concept that has come to dominate discussion of the Charter; it was Prof. Hogg who coined the phrase "dialogue" to describe the constitutional relationship between the legislatures and the courts.

The thought came to him as he pondered a popular notion that the two institutions are locked in an acrimonious battle for supremacy. Examining each case, he realized that the courts rarely struck down laws at all. Their targets were instead the application of a law by police or bureaucrats -- not the law. In a paper he wrote with colleague Allison Bushell, Prof. Hogg also showed that most impugned legislation gets quietly recrafted by legislators if they truly care about it.

Some battle for supremacy.

As an advocate of judicial restraint with a history of criticizing judges for overreaching their grasp, his discovery of the dialogue theory made Prof. Hogg more sanguine about judicial activism.

"The debate becomes much more muted when you realize that they really are not the last word," Prof. Hogg observes.

The dialogue idea rapidly took hold among Charterphiles and judges -- so much so that Prof. Hogg now jokes about wishing he had just kept his mouth shut. Top judges -- including Chief Justice Beverley McLachlin and Mr. Justice Frank Iacobucci -- have seized upon the idea and regularly refer to dialogue theory in their speeches or judgments.

Naturally, critics of judicial power scoffed that the dialogue between institutions is really a monologue where judges do the talking and politicians do the listening. It all makes for a lively debate.

For many years, Prof. Hogg has also been in the middle of a quite different dialogue involving the Supreme Court. The court often expressly agrees or disagrees with one of his stated positions.

In an early instance of this, Mr. Justice Jean Beetz took on Prof. Hogg over his view that provincial legislatures ought to be allowed to legislate in areas of federal jurisdiction if Ottawa has shown no inclination to do so itself.

Judge Beetz strongly disagreed but sent Prof. Hogg a copy of his ruling with a personal note of appreciation.

It was all pretty heady stuff for a lawyer who never imagined for a moment that he would make a splash in Canadian constitutional law. Prof. Hogg recalls experiencing a similar moment of shock at his own influence when travelling in South Africa in 1997.

"I was astonished to find that I was really well known there. My work had been cited dozens of times in the Constitutional Court of South Africa."

It was a complete accident that Prof. Hogg ended up in Canada at all. As a young academic, he had a sabbatical year scheduled at a U.S. law school. When his funding dried up at the last moment, a friend at Osgoode Hall arranged a one-year position for him. Prof. Hogg brought his young wife and children to Toronto.

They settled in quickly, and a year turned into a lifetime.

In the Sixties, constitutional lawyers spent their time endlessly parsing the constitutional division of powers between the federal and provincial governments. "You had to be a bit eccentric back then to like constitutional law," Prof. Hogg recalls.

He soon discovered that because constitutional scholars operated within tiny, specialized niches, no one had attempted for almost two decades to produce a complete constitutional text.

Prof. Hogg took on the task. His sprawling and definitive text with its annual supplements --Constitutional Law of Canada -- has been a staple ever since. "I saw the law as a beautiful structure, and things that didn't fit it were wrong," he explains. "It's in my nature to try to present a beautiful picture."

Constitutional expert David Stratas describes the text as indispensable.

"You would be negligent if you did not look in Peter Hogg's text to see what he has to say on the subject," he says. "His words are not necessarily the final view on the subject -- and some of his assertions are debatable -- but it is still the place to go. He has made a profound contribution to Canadian constitutional law."

The profile of constitutional law has long since rocketed to unimagined levels. Prof. Hogg attributes this to a global movement toward human rights and the leadership of former chief justice Brian Dickson -- whom he describes as "one of the greatest judges that have existed anywhere."

His claims to legal fame include advising then Ontario premier David Peterson on the Meech Lake Accord and advising the Assembly of First Nations during the Charlottetown Accord talks.

"We had spent the last 100 years asking: What does Quebec want? Then we had Quebec saying what it wanted," he recalls. "I was bitterly disappointed that each of those accords were defeated. I felt it might lead to Quebec separating -- and it very nearly did."

There is something odd about hearing a New Zealander speak so intimately about Canadian politics. It is even odder to think that he was destined to become Canada's ranking constitutional authority.

When he turns 65 next March, Prof. Hogg intends to throttle back even more, perhaps teaching a few law courses and practising part-time at his firm, Blake Cassells Graydon LLP. He has more than earned some ease.