Peter Hogg Quietly Shaped Canadian Law

Peter Hogg, a New Zealander who became Canada’s pre-eminent constitutional scholar, was sometimes called the 10th person on that country’s nine-member Supreme Court. Hogg died on 4 February, aged 80. The Globe and Mail’s Sean Fine wrote the following obituary.

A textbook Hogg wrote, Constitutional Law of Canada, published in five editions and updated annually in a loose-leaf version, is the work most cited by the court, found in a remarkable 190 decisions – the first in 1979, the most recent this month, Fine writes.

“The law is what the judges say it is, but Peter had a big role in telling the judges what to say,” retired Supreme Court judge Ian Binnie says.

“His contribution is now baked into the minds of generations of law students, lawyers and judges – his work dominates Canadian thinking about the constitution whether we recognise it or not,” Binnie says.

A law professor and dean, Hogg was from far from an ivory-tower scholar. He advised a wide array of clients, including several governors-general, First Nations groups, and the Ontario, federal and Alberta governments. He also addressed parliamentary committees on wide-ranging matters of law, beginning in 1978, with his final such appearance coming last year, on a bill affecting Indigenous children. And he was an experienced advocate, appearing numerous times in the Supreme Court, where “he relished facing down nine interrogators,” Binnie said, “like a chess master simultaneously playing multiple opponents.”

Peter Wardell Hogg was born on 12 March 1939, in Lower Hutt, the son of Eric Hogg, a lawyer, and Mary Hogg (born Wardell), a homemaker. After studying law at the University of New Zealand (now Victoria University of Wellington), he joined his father’s downtown law firm, where a colleague noticed his academic bent, and suggested he apply for a US scholarship. His father told him it was a waste of time – he could be making money – but he went off to Harvard, where he obtained a master’s degree in law.

As much as he was respected for his legal wisdom, and honoured as a Queen’s Counsel and a companion of the Order of Canada, he was regarded with deep affection for a gentle, modest, kind, optimistic and generous nature. When lawyer Allison Thornton was a first-year student at Osgoode Hall Law School she went to work for him as a researcher, and says he treated her as a peer. The next year, rather than bury her contribution in a footnote, he credited her with joint authorship (under her birth name, Bushell), on one of his most widely read journal articles – the constitutional “dialogue” between the courts and Parliament. For the next quarter-century, he was her mentor.

After he left Osgoode he became a scholar-in-residence at Blake, Cassels & Graydon, a national law firm. “Every Supreme Court factum [written argument] I’ve done in my life I’ve always run past Peter,” Brad Berg, a senior lawyer at the firm, said. (Once, when Berg lost a case 9-0, Hogg dropped his habitual modesty, telling him: “The Supreme Court got it wrong.”)

Original article by Sean Fine, The Globe and Mail, February 21, 2020.


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