Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M A r C h 2 0 1 5 25 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 Fed- eral Court adds: the "Prime Minister's decision not to recommend appointments . . . reflects an imper- missible 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 Constitu- tion, and what he calls Harper's quiet bid to ignore Parliamentary institu- tions and constitutional conventions, by governing outside the rule of law. "Whatever people think of the Sen- ate," he says, "I hope that all Canadi- ans 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 Al- ani'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 minis- ter'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, espe- cially on a matter unlikely to rally public opinion to his side. Yet Alani seems perfectly groomed for the job. e son of Ugandan immigrants — who fled that country fol- lowing the dictator Idi Amin's expulsion of Asians in 1972 — Al- ani 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 ev- erybody." 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 ar- cana. "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 "real- ized very quickly that it's not necessarily the easiest practice with which one might pay one's bills." Instead, he clerked at the Fed- eral 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 chal- lenged 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 rais- ing 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." 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 . . . can brIng people to account. no one's above the law. CONNECT WITH IN-HOUSE COUNSEL COLLEAGUES AT LEXPERT.CA/CCCA Check out in-house counsel's best networking tool! The 2014/15 Lexpert CCCA/ACCJE Directory & Yearbook online edition is a user-friendly, outstanding key resource for all in-house counsel. Access more than 4,000 listees, more than RUJDQL]DWLRQV´QGIUHVKHGLWRULDOFRQWHQW and information on deals and links to important resources. ANYWHERE. ANYTIME. ON ANY DEVICE. ntitled-5 1 2015-02-09 10:18 AM

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