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A unanimous Supreme Court of Canada described the role of the authorizing judge thus (albeit in reference to Criminal Code wiretap warrants) in R. v. Araujo, 2000 SCC 65 (CanLII), 2000 SCC 65 at para. 29, per Justice LeBel:

... [T]he authorizing judge must look with attention at the affidavit material, with an awareness that constitutional rights are at stake and carefully consider whether the police have met the standard.  

All this must be performed within a procedural framework where certain actions are authorized on an ex parte basis.  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.  

The authorizing judge should grant the authorization only as far as need is demonstrated by the material submitted by the applicant. ... (emphasis added)

Jim O'Neil, LL.B.

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