PROFILE: Montreal law prof had huge impact on same-sex marriage, residential schools apology

By Greg Kelly And Alison Cook
CBC News
May 14, 2014

http://www.cbc.ca/news/canada/montreal-law-prof-had-huge-impact-on-same-sex-marriage-residential-schools-apology-1.2641277?cmp=rss

Roderick Macdonald doesn't have name recognition, but the McGill University law professor has had a profound influence on some of the most important legal issues in Canada in modern times.

Assembly of First Nations Chief Phil Fontaine, wearing headdress, and Head of the Native Women's Association of Canada, Beverley Jacobs, standing to his left, were among the people in the House of Commons to hear Prime Minister Stephen Harper officially apologize for more than a century of abuse involving Indian residential schools on June 11, 2008.

Roderick A. Macdonald may not be a household name, but he’s changed the way thousands of Canadians live.

The McGill University law professor played a crucial role in paving the way for same-sex marriage in this country, as well as the inquiry into abuse at residential schools – and the federal government’s 2008 apology to survivors.

Macdonald has spent his career challenging the way the law is conceived and applied in this country, and giving voice to those who’ve had little representation in the operations of institutional power.

But now he’s losing his own voice: his ability to speak is greatly impaired by the fact that he’s terminally ill with throat cancer.

Three hundred leading Canadian legal minds gathered in February at a McGill symposium held in his honour. Macdonald — or "Rod" as he’s better known among friends and colleagues — couldn't take the podium. The discomfort of his throat prosthesis makes talking for more than 15 minutes both difficult and painful.

But he did agree to a series of five short interviews with Paul Kennedy, host of CBC Radio's Ideas program, in which he talked about his legacy.

“A lot of people have characterized me as a bit of an enfant terrible," he told Kennedy. "I write what I believe and it turns out that these essays make people in power angry. But that isn’t why I wrote them. I wrote them because that is what I believed.”

Macdonald says he never wanted to be a lawyer. From his first day in law school, he wanted to teach law, and that’s what he began doing at the University of Windsor in 1975.

Since then, he’s influenced generations of lawyers, judges and legal thinkers.

Attendees at the February symposium – many of them former students -- read like a veritable Who’s Who in Canadian law: Rosalie Abella is a justice at the Supreme Court of Canada; Nicholas Kasirer is a justice on the Quebec Court of Appeal; and Kim Brooks is the dean of the Schulich School of Law at Dalhousie.

Finding new and daring ways of looking at the law has been as much Macdonald's hallmark as his ever-present bowtie.

One of his seminal works is a 1990 article entitled Office Politics. It wasn’t a typically dry, jargon-filled and footnote-laden legal text, but rather a set of memos written between the dean and other members of an imagined law faculty about the allocation of office space. The subject may seem grindingly dull, but Macdonald used the subject of office space as an allegory to get at questions about the complexity of authority and the impact of an institution's internal culture on the quality of its decision-making process.

Macdonald has a knack for drawing our attention to the seemingly obvious, and questioning it critically.

One participant at the symposium recounted a story of Macdonald asking students to explain how we know a table is actually a table. Or to think of how many ways a sign saying “Keep off the grass” could be wrong or inapplicable. (Maybe the sign is unfair to people in wheelchairs. Maybe it should be bilingual. Maybe it’s public property.)

Such questions may seem trivial, but answering them requires both epistemological rigour and imagination.

Macdonald's point is to be aware of why we think our way of looking at the world feels natural and right - or not.

“Many, many people believe that the law is a one-way projection of authority from lawmakers or law-givers to citizens, who are merely passive respondents to what the commands of the people in authority are," says Macdonald, explaining his contrarian philosophy.

But he doesn’t believe the law should be a one-way street.

“The best way to achieve a harmonious and peaceful society is to recognize that people have within themselves the capacity to do what is appropriate under the circumstances, and that the law should be designed to facility their agency."

His commitment to critical thinking was the impetus behind Restoring Dignity: Responding to Child Abuse in Canadian Institutions, the report he spearheaded while at the Law Commission. Its purpose was to document the decades of abuse suffered by native children in residential schools.

To Macdonald, the realities depicted in that report were a perfect example of how the law should be a two-way dialogue, not merely a top-down command.

“During the institutional abuse hearings, we met a woman who had been put away in the Grandview School, which was a training school for girls. And [she’d] been terribly abused: raped by several guards, physically abused, treated horrendously.

"And yet, here she was at age 60, full of humanity, full of optimism, working in a volunteer sector to improve the situation of training schools for youth in other situations, with just a sparkle in her eye, and no sense of anger and no sense of bitterness at her past.” 

Macdonald says he was galvanized by the woman's spirit in the context of such gross violations of the law and systemic injustices towards native peoples.

“It’s unbelievable… And it just rededicates your writing and doing the absolute best you can, because in some sense, you are doing it for people like that.”

The tendency to swim against the prevailing tide of thinking is definitive for Macdonald. When he moved in 1979 from the University of Windsor, with its relaxed dress code, to McGill, with its more formal one, he decided to make a statement by inventing his own dress code: he started wearing a bow tie, which became something of a trademark for him.

He’s also been known to pull out his guitar and play in front of students, faculty, even a roomful of judges to make a point.

“There was a meeting of all the superior and provincial court judges of Quebec in Quebec City about five years ago," Macdonald recounts.

"And the topic was the independence of the judiciary. And I thought there was a particularly moving song by [folk singer] Phil Ochs about how one lives one’s life, true to one’s values, without being influenced by inappropriate considerations.”

The song he performed was When I’m Gone. The judges’ response: a standing ovation.

The song title has a poignant resonance now, given his grim prognosis, which limits his remaining time to months – perhaps even weeks – rather than years. Yet Professor Macdonald is untouched by despair.

“I’ve been extremely fortunate," he says. "It’s been a fabulous life. You know, it sounds silly, [but] I wouldn’t have it any other way. I genuinely believe that.”