Sure, on the issue of what I've been calling the double-trigger, the chapeau, and then the specific elements that are enumerated.
I agree that's the preferable interpretation. I'm not sure it's crystal clear in the drafting of the statute. I'm pleased, if it were the view of this committee, that in fact you need not just to be listed in that long list of elements, but also meet the standards that you've articulated in the chapeau, as you put it.
The chapeau is incredibly broad in its own right and invokes terms for which there is no clear and established definition, unlike the section 2 concept from the CSIS Act, which is a well-established and principled concept of national security. It seems to me and Professor Roach that it would accommodate all of the government's preoccupations with information sharing without going beyond it.
We prefer the established standard because it has a 30-year legacy and it's clear-cut in our view, although it is still very broad.
On the issue of the interaction between the section 2 definition and section 5, I have some concerns about the use of the word “jurisdiction” for instance in section 5.
If we take the question as to information that might be supplied by a government agency to CSIS, how would one define CSIS' jurisdiction? There are two possibilities. The first possibility is to define CSIS' jurisdiction with an eye to its section 2 mandate of threats to the security of Canada, or you could look at the section 12 functions of CSIS and say that CSIS can only collect information pertaining to the threats to the security of Canada in circumstances where it is necessary to do so.
That decision as to which of those aspects mark CSIS' jurisdiction will then determine whether CSIS is capable of receiving under this law more information than it's legally entitled to collect.
I think that's an important issue. It's not clarified in this law. The issue for us is that jurisdiction is a mutable concept. Since there's not the prospect of any serious independent review—and the Privacy Commissioner of course voiced his concerns about this—to ensure that the internal deliberations of the government as to what constitutes jurisdiction is a sound one, our fear is that these decisions will be made without enough checks and balances, and accountability.
Does that respond to your question?