270. In fact, without its even being necessary to ascertain
whether such a prior control would in practice be conceivable
and sufficiently effective, given in particular the quantity of
data to be examined and the resources available to the
independent control authorities, I observe that, in the context of
respect for Article 8 of the ECHR by the public authorities who
have put in place measures for the interception and
surveillance of private communications, the ECtHR has
accepted that, save in exceptional circumstances relating in
particular to the confidentiality of journalists’ sources of
information or communications between lawyers and their
clients, an ex ante control of those measures by an independent
body or a judge is not an absolute requirement, provided that
extensive post factum judicial oversight of those measures is
guaranteed.
271. In that regard, independently of the doubts prompted by
the allocation of the CBSA’s surveillance and oversight powers
between the ‘independent public authority’ and the ‘authority
created by administrative means that exercises its functions in
an impartial manner and that has a proven record of
autonomy’, to which I shall return later, (101) it must be
pointed out that Article 14(2) of the agreement envisaged
provides that Canada is to ensure that any individual who is of
the view that their rights have been infringed by a decision or
action in relation to their PNR data may seek effective judicial
redress in accordance with Canadian law by way, inter alia, of
judicial review. There can be no doubt, having regard to the
wording of Article 14(1) of the agreement envisaged and the
explanations provided by the interested parties, that that
remedy is available against any decision relating to access to
the PNR data of the persons concerned, irrespective of their
nationality, their domicile or their presence in Canada. In the
context of the present procedure of preventive examination of
the compatibility of the terms of the agreement envisaged with
Articles 7 and 8 of the Charter, the guarantee of such a remedy,
the effectiveness of which has not been called in question by
any of the interested parties, seems to me to satisfy the
condition required by those provisions, read in the light of the
interpretation of Article 8 of the ECHR by the ECtHR.
272. Consequently, I consider that the fact that the agreement
envisaged has failed to provide that access by the authorised
officials of the CBSA to the PNR data is subject to prior control
by an independent administrative authority or by a court is not
incompatible with Articles 7 and 8 and Article 52(1) of the
Charter, in so far as — as is the case — the agreement
envisaged requires that Canada guarantee that every person
concerned will be entitled to an effective post factum judicial
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