Taking on the big guns

Taking on the big guns
Photo: Kim Stallknect
Aniz Alani says he’s “just a guy with a credit card and some vacation time.”

So why isn’t the 33-year-old husband and father taking his young family off to Disney World? Wouldn’t that be an easier way to spend his free time and money — certainly more fun, than say, taking the prime minister to court?

For most Canadians, even most lawyers, the choice would be obvious. But for Alani, challenging Stephen Harper in Federal Court, on his own dime and in his own time, is perfectly normal behaviour. “It’s very much in character for Aniz,” says Geoff Moysa, a former law school classmate who now practises with McMillan in Toronto. “I figured it was only a matter of time before Aniz got involved in a pursuit like this.”

In December, Alani leapt from obscurity from his post as an in-house counsel in Vancouver onto the national stage — garnering headlines for launching a legal action against what he calls the prime minister’s “deliberate failure” to fill empty seats in the Senate.

A former Davis LLP associate, Alani now makes his living as an in-house litigator for a British Columbia Crown corporation, which, he makes clear, has nothing to do with his Harper-Senate crusade. Alani was disturbed by comments made in early December by Harper that he had no interest in appointing new senators — even though there were 16 vacancies at the time in the 105-seat Senate.

As political pundits have explained, the last thing Harper wants ahead of an upcoming 2015 election is to be more closely associated with the unpopular, scandal-plagued Senate. By February, Harper hadn’t made a Senate appointment since March 2013. And with a Conservative majority already secure in the upper chamber, why would Harper change course now?

Because, says Alani — the Constitution requires it. The Constitution Act, 1867, gives provinces specific numbers of Senate seats to provide for equal representation in Parliament for each of the country’s four major regions (plus additional seats for the Territories and Newfoundland and Labrador). By refusing to advise the governor general to fill vacant seats within a reasonable time, says Alani, Harper is “breaching the principles of federalism, democracy, constitutionalism, the rule of law, and the protection of minorities.”

Alani’s application for judicial review of the matter by the Federal Court adds: the “Prime Minister’s decision not to recommend appointments . . . reflects an impermissible attempt to make changes to the Senate” without following the amending formulas set out in the Constitution — namely, getting the approval of most or all the provinces.

Average Canadians, Alani knows, couldn’t care less about the Senate. But what they should care about, he says, is the sanctity of the Constitution, and what he calls Harper’s quiet bid to ignore Parliamentary institutions and constitutional conventions, by governing outside the rule of law. “Whatever people think of the Senate,” he says, “I hope that all Canadians share in the belief that our Constitution should be followed, certainly by the people governing us. If we get to the point where the Constitution no longer reflects what we want Canada to look like, then we should take steps to change it.”

Harper has said there’s no need to fill vacancies because, “From the government’s standpoint, we’re able to continue to pass our legislation through the Senate.”

In January, government lawyers filed a motion to dismiss Alani’s application, arguing the matter is not justiciable because a court can’t enforce a constitutional convention. And in any case, they say, the Federal Court lacks jurisdiction over a prime minister’s advice to a governor general.

Whatever the merits of Alani’s complaint, it takes a rare kind of lawyer to step out, alone, and challenge a prime minister, especially on a matter unlikely to rally public opinion to his side. Yet Alani seems perfectly groomed for the job.

The son of Ugandan immigrants — who fled that country following the dictator Idi Amin’s expulsion of Asians in 1972 — Alani grew up in Vancouver where he cultivated, since childhood, a quirky obsession with the Constitution and a fervent belief in the rule of law. David Hunnings, his junior high school debating coach, says Alani was a skilled but unusual member of the team. Unlike his self-assured and gung-ho peers, Alani “was the sort of guy who would sit at the back of the room and just listen to everybody.” But Hunnings says this shy behaviour masked a “steely centeredness that you wouldn’t see right away.”

Years later, when Alani was an undergraduate, Hunnings gave him a personal copy of professor Peter Hogg’s second edition of the Constitutional Law of Canada. Although thousands of pages long, “I read it cover to cover,” says Alani, “and then I went off to law school.”

At the University of Toronto, Alani revealed to classmates like Moysa his strange passion for constitutional and procedural arcana. “He’s got a natural curiosity about procedure, to a greater extent than in a lot of lawyers I’ve seen,” says Moysa. “I don’t think [the Senate case] is a partisan thing. He’d do it regardless of who is in office. He just cares deeply about procedures.”

Alani wanted to become a constitutional lawyer, but “realized very quickly that it’s not necessarily the easiest practice with which one might pay one’s bills.” Instead, he clerked at the Federal Court (giving him insights into the institution where he is now challenging the PM), became a litigator at Davis in Vancouver, and then switched to his current, in-house job.

Alani says he was inspired in his Senate case in no small way by Rocco Galati, the constitutional crusader who successfully challenged the Harper government’s decision to appoint Justice Marc Nadon to the Supreme Court. “If it weren’t for the example that he set — in breaking the mould and illustrating that individual lawyers may be well suited to raising legal and constitutional issues that might not be raised in any other way — I’m not sure I would have thought of this otherwise.”

As he waits for his application to work its way through court, whatever the outcome of the case and its impact on his legal reputation, Alani says he has no regrets. “I take great comfort that we live in a country where there is a system of the rule of law. Any person, whether they are a lawyer or not — obviously it’s easier if they’re a lawyer — can bring people to account. No one’s above the law,” he says. “I take great comfort in the fact that it’s possible to do this.”

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