How much Guidance can the Authorizing Judge Give the Police Officer Who Applies for a Warrant?


Section 8 of the Charter requires search-warrant applications to be determined by persons who are neutral, impartial, and capable of acting judicially. 

Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 at 162-165.

Judges and Justices of the Peace are presumed to be such persons (or in other words, there is a presumption of impartiality).

That these judicial officers can, and should, ask relevant questions and, when appropriate, require further sworn evidence, is reflected in R. v. Araujo, 2000 SCC 65 (CanLII), [2000] 2 S.C.R. 992.  In discussing the role of a judge before whom an application for a wiretap authorization is being made, Mr. Justice LeBel stated (at para. 29):

Thus, the authorizing judge stands as the guardian of the law and of the constitutional principles protecting privacy interests.  The judge should not view himself or herself as a mere rubber stamp, but should take a close look at the material submitted by the applicant.  He or she should not be reluctant to ask questions from the applicant, to discuss or to require more information or to narrow down the authorization requested if it seems too wide or too vague.

[Emphasis added.]

This passage was quoted with approval in R. v. Pires; R. v. Lising, 2005 SCC 66 (CanLII) at para. 22, [2005] 3 S.C.R. 343.

It is in keeping with the judicial office for a Justice to advise the police officer submitting an application for a telewarrant that he/she should fully set out the reasons for using the telewarrant procedure.

R. v. Clark, 2015 BCCA 488 (CanLII), at para 58 (aff’d 2017 SCC 3).


Section 8 of the Charter is violated, however, where judicial officers become involved in the warrant-application process to the point where they take on the role of legal advisors to the police.

R. v. Gray (1993), 1993 CanLII 3369 (MB CA) 81 C.C.C. (3d) 174 at 182 (Man. C.A); see also R. v. Clark, 2015 BCCA 488 (CanLII), at para 58.


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