A sit-down with the man who literally 'wrote the book' on constitutional law
An introspective look into the professional lives of Ontario’s most celebrated lawyers and legal scholars
This interview almost didn’t happen. Twice I tried to persuade Peter Hogg to participate, and each time he politely turned me down with a disarmingly self-deprecating comment such as “I know that I should probably say yes, but…”, or “Well, against my better judgment…” Of course, Peter eventually agreed, and while I had pondered the possible reasons for his reticence, he opened our conversation with the confession that he felt he couldn’t provide a sufficiently interesting answer to this column’s question, “What would you have done differently?” He could not have been more wrong. As an academic, Peter has done more than anyone else in shaping the discourse about how we think about Canadian law and politics; as an advocate, he has shaped the content of the law itself.
Upon entering Peter’s office at the firm of Blake, Cassels & Graydon LLP in Toronto, I am welcomed by a waft of Canadian legal history: wall-to-wall bookshelves at either side of the office are filled with first and second editions of books on constitutional law, administrative law and trusts; on the desk, a pile of thin loose-leaf pages, with handwritten notes strewn about, next to a lit computer screen filled with more text. Peter is working on the latest supplement to Constitutional Law of Canada - the most cited book in the history of the Supreme Court of Canada. I am speaking with the man who, quite literally, wrote the book.
At 76, he is still writing it. I am struck by the gravitas of this person across from me, and the body of work he has completed over a lifetime spent in the law.
It is no small irony, then, to learn that the man who has defined Canadian constitutional law once knew, as a law professor, almost nothing about the subject. In 1970, Peter had recently joined Osgoode Hall as a professor, about the same time when Osgoode was separating from its home at the Law Society of Upper Canada. Dean Gerald Le Dain had asked Peter to teach a course on constitutional law; he needed a fourth professor, and Peter was the new guy. Peter accepted with the small caveat that he did not actually know a whole lot about Canadian constitutional law. Says Peter, “anything that I was asked to teach, I started to like. Every area of law is interesting.”
“The key to my life has been serendipity. The ‘happy accident’ has seemed to govern almost every single important thing that I’ve done.”
During his preparation that summer, Peter discovered that the only text available to students was Bora Laskin’s Canadian Constitutional Law - notoriously difficult to read, and covering mostly the federal division of powers (which, at the time, was the hot-button topic in Canadian law and politics due to the Quebec separatist movement). So, Peter combined his insatiable appetite for legal scholarship with some gumption, and wrote a new book.
Then, suddenly – seemingly overnight, says Peter – the field of constitutional law went into hyper-drive when the Canadian Charter of Rights and Freedoms came into force in 1982. “Suddenly, every member of faculty wanted to teach constitutional law, every graduate student wanted to work on some Charter of Rights issue - usually equality. Who could have anticipated any of that? It was all so unexpected” recalls Peter, the timbre of his voice rising as he describes the mad scramble that had befallen Canadian legal scholarship.
A rock-star legal scholar was born.
And so it was, that by 1984, before many Charter cases had even been decided, the second edition of Constitutional Law of Canada doubled in size to over 1,000 pages. Currently in its 5th edition, the text is now over 2,000 loose-leaf pages, with an updated supplement released each year. Peter confides that, while he dockets his time spent working on the text, he has never had the courage to ask his assistant for the full tally. It is a monster of a masterpiece.
For Peter, however, the circumstances of how this masterpiece came to be are merely part of an unknowable plan that he is still in the process of discovering: “The key to my life has been serendipity. The ‘happy accident’ has seemed to govern almost every single important thing that I’ve done.”
"You never quite know where a charter of rights will lead you. And this is interesting and exciting. But, the further it leads you, the more you are undermining the democratic character of governance.”
Peter brought this humility with him to Harvard, where he completed his LL.M.; there, he met “an American girl”, his future wife. From Harvard, Peter joined his alma mater the Victoria University of Wellington as a professor with the faculty of law, teaching alongside colleagues whom he describes as “every bit the equal of any Harvard professor.”
Even Peter’s becoming a lawyer can be chalked up to a ‘happy accident’. He recounts having had no intention of becoming an academic, no intention of pursuing graduate work, and, frankly, no intention of ever leaving New Zealand. He admits to even having no intention to pursue a career in law (despite his own father being a lawyer, and notwithstanding his self-professed “slightly argumentative” nature), going so far as to scoff at the idea that one could “want” to become a lawyer (and I agree – this sort of aspirational self-delusion is the modern trapping of many Generation Xers and Millennials). “At the age of 12, you don’t have much of an idea about what lawyers do”, Peter admits.
We discuss the value of a legal education. Peter is deliberate with his words in describing that, more than critical thought, a legal education teaches confidence – the confidence to identify and persuasively articulate the issues. It is also about developing “intellectual rigour”, and then spending a career in the refinement of that intellect. Peter’s perspective has a depth miles deeper than the lip-service paid by law school recruiters about how law school teaches “critical thinking”; no, this can only come from a person who has spent decades working at the highest levels of the profession. I can certainly appreciate the sentiment, but I cannot yet fully understand it.
The Charter is often a step ahead of public opinion in terms of crafting fair and egalitarian policy, but that public opinion – at least in Canada – is quick to catch up.
And Peter has expertly leveraged his own education. His first court appearance in Canada was before the Supreme Court, representing the Canadian Labour Congress in a fight against Trudeau’s wage and price control policies. This opportunity led to others – consulting for the federal government, practising law, and working as a top-notch scholar.
Our conversation turns to the Charter, as it naturally would, and Peter’s voice becomes more animated, his legs more fidgety. We discuss how judicial activism is best constrained, lest it be taken too far and become a policy tool for the unelected. At the same time, we both also agree that the Charter has played an important role in promoting the progressive ideas crucial to a healthy, liberal (small-L) democracy.
Says Peter, “The judiciary should play a restrained role in the governance of a country because in a democratic country, it is the elected representatives of the people who should make most of the choices. You never quite know where a charter of rights will lead you. And this is interesting and exciting. But, the further it leads you, the more you are undermining the democratic character of governance.”
While firmly supporting judicial review, Peter is not entirely comfortable with how the Charter has aggrandized the role of lawyers in social politics. He presents as a man who, while having occupied the limelight for the better part of three decades, has never sought it out for himself; begrudgingly accepting the responsibility thrust by society onto the profession, as if he is leery of exerting undue influence over an issue that has not been decided by the republic. “The Charter of Rights only works when there is judicial review to enforce its precepts. I entirely accept the notion of judicial review. The downside is that it casts lawyers in a fairly important role for which they’re not really qualified. But, at the same time, I accept the proposition that freedom of expression and equality are matters that should be protected from majority rule and momentary passion.”
As we continue this to-and-fro (well, as much ‘fro’ as I am capable of providing to Peter, that is), I develop a sense for the wide “metes-and-bounds” of Peter’s capacity for deep, critical thought. I ask, - would Canada be as progressive as it is if social and political issues were decided purely by popular vote? He replies that the Charter is often a step ahead of public opinion in terms of crafting fair and egalitarian policy, but that public opinion – at least in Canada – is quick to catch up. He contrasts the progression of same-sex marriage legislation in Canada with that in the United States, describing how the conservative bench of the US Supreme Court has stymied the development of fair legislation, and how, in turn, this has buoyed the opposition in those states which continue to deny marriage equality (in the US, marriage is regulated by the state, whereas in Canada it is a federal matter).
He adds, “The good thing about the Charter is that it raises society’s consciousness on these issues, sometimes ahead of elected representatives. In that way, some of the expansion of judicial review does create a fairer and more egalitarian society.”
Peter represented the Government of Canada before the Supreme Court of Canada in 2004 same-sex marriage reference. He recalls being invited after the reference to a service at the Metropolitan Community Church in Toronto that was at the forefront of the same-sex marriage movement, warmly describing the joy he received from working with the excellent lawyers at the Department of Justice, but, most of all, from the many Canadians whose lives he helped touch: “I think the sum of human happiness was increased by that decision… and that’s good. I felt very, very proud that I played a small role in achieving that. It was wonderful.” He singles this out as his proudest professional achievement.
Again, I pose the question: “What would you have done differently?” Has he formed an answer? “No, I don’t have an answer”, he responds. “So much that has happened has been a matter of serendipity. I am very glad that so much of my career has been spent as an academic. I enjoyed that enormously, and yet I became an academic almost by accident, but that turned out to be very good... there aren’t obvious ways I would have wanted to change.”
Instead, Peter points to his happy marriage, good health, and the pride he feels in his children as the parts of his life for which he is most grateful.
But I think Peter has perfectly answered the question. Yes, he feels nostalgia for his home country of New Zealand. And, yes, he would have been just as influential and successful were he to have remained a professor at the Victoria University of Wellington. The truth is that Peter would have enjoyed a happy career no matter where he decided to make his home, because, like all giants of the law, Peter is a life-long learner, and his professional accomplishments, spanning nearly 50 years, are rooted in his love of wisdom, the law, and most of all, the people around him.
About the Author
Andreas Kalogiannides operates Kalogiannides Law in Toronto. Kalolaw.ca