Charteritis

Charteritis (n., Canadian constitutional law):

(1) A judicial affliction in Canadian courts marked by an excessive or inappropriate tendency to view cases through the lens of the Canadian Charter of Rights and Freedoms, even when the Charter is irrelevant or unnecessary to deciding the issue;

 (2) A recurring condition marked by a kind of ‘inflammation’: the overgrowth of Charter arguments and decisions into areas of law and governance where it does not belong.

My intention with this definition, when lawyers claim Charter rights as the central argument in a case, is to encourage judges to avoid the following:

• Irrelevance: applying Charter rights in disputes that can and should be resolved under ordinary, non-constitutional law.
• Politics: deciding political or policy questions that are beyond the role and expertise of the judiciary (aka justiciability).
• Overreach: extending Charter reasoning to situations outside the court’s territorial or subject-matter jurisdiction, as in the Mathur children’s case in which an Ontario court is asked to make an order to stop the effects of global CO2 emissions

This post on Charteritis serves as a reminder that the Charter is not the sole lens through which every constitutional argument must be viewed.