Quebec researcher in legal fight over research confidentiality

In 2010, 93 rural Quebec residents filled out questionnaires and did lengthy interviews for Marie-Ève Maillé, then a PhD candidate at Université du Québec à Montréal. Participants signed university-approved consent forms assuring confidentiality.

“Many told me privacy was a condition for their participation,” said Dr. Maillé. “People were talking about their social interactions. They were saying sometimes mean things about their neighbours.” Now, due to a court order, the words and identities of the participants may end up being used in a civil case, raising the alarm among researchers in Canada about the issue of research confidentiality.

Dr. Marie-Ève Maillé. Photo courtesy of Dr. Maillé.

Dr. Maillé’s research tracked social disruption among residents of two small towns in the Arthabaska region east of Montreal over a proposed large-scale wind farm. She published her results and completed her PhD in communications in 2012.

The same year, a group of residents launched a class action lawsuit against the wind energy company over inconveniences caused by the construction and operation of the wind farm. In 2015, residents asked Dr. Maillé to testify in court as an expert witness and she agreed, thinking she’d merely read from her thesis.

“I never thought it would be a problem,” she said. She did not obtain a lawyer and said she couldn’t afford one anyway. Dr. Maillé had just returned from doing a postdoc in Germany and had been hired by UQAM as an adjunct professor but had no formal teaching or research duties. Around the same time, she launched her own consulting company that helps communities with mediation and arbitration with developers.

Dr. Maillé heard through the residents’ lawyer in October 2015 that Superior Court Justice Marc St. Pierre expected her to give all her research materials to the defense. “They told me I was in trouble and should get a lawyer,” recalled Dr. Maillé. Working with the residents’ lawyer, she composed a letter to the judge and sent him the consent form.

At a January 2016 hearing that Dr. Maillé did not attend, the judge ruled the material admissible. “I understood then this was really serious,” said Dr. Maillé, who pulled her name from the list of witnesses. Still, in March she got a summons saying she had to produce her data or be held in contempt. She found a pro bono lawyer and, last June, he put in a request for the judge to change his ruling. As of press time, they were still waiting to meet with the judge.

Last summer, the case started getting notice, with the Fonds de recherche du Québec intervening. Radio-Canada, CBC’s French-language service, did a story on Dr. Maillé at the end of October. That piece inspired Chantal Pouliot, a professor in science education at Université Laval who knows Dr. Maillé, to act.

“I’ve known her story since the beginning. She’s been pretty alone in this,” said Dr. Pouliot. She wrote a public letter saying the summons will deprive researchers of willing participants and force academics to tackle only safe topics. Within days, Dr. Pouliot garnered 200 signatures and published the letter in Le Devoir in early November.

In a statement from UQAM dated November 1, the university said that as soon as it found out about the court order last winter, it recommended that Dr. Maillé stop acting as an expert witness and withdraw her thesis from the proceedings, which she did. Following that, the university said it “believed the issue was resolved.” It wasn’t until October 19, the university said, that it “learned that the confidentiality of the research data was still threatened.” According to the statement, in light of this new information, UQAM took the decision to act as an intervenor in the case.

Ted Palys, professor in the school of criminology at Simon Fraser University and co-author of the book Protecting Research Confidentiality, said this type of case is rare but inevitable, given that academics “look in the dark corners of the world and try to figure out what motivates people.” In 1994, a coroner subpoenaed an SFU master’s student to give evidence at an inquest using his research on assisted suicide among people with HIV/AIDS. In 2012, a judge issued a warrant for the data from a study on male escorts conducted at the University of Ottawa, as then-alleged murderer Luka Magnotta had been a participant.

In these cases, the evidence was assessed using the so-called Wigmore criteria, a common law directive that is used to determine if a communication is privileged. It balances the value of a confidence against the injury caused by keeping the information private. Both times, the privilege prevailed. And, in both instances, the universities did not initially provide public or financial support.

This case, with its rising profile, is triggering calls for clearer rules on confidentiality, and when and how universities should support their researchers. Clarifications to the Tri-Council Policy Statement: Ethical Conduct for Research Involving Humans, published in 2014, state that universities should be “providing the means for researcher to obtain independent legal advice where such advice is required.”

David Robinson, executive director of the Canadian Association of University Teachers, said he thinks the judge in this case “made a mistake.” He said he’s looking to create a checklist based on legal advice to help researchers safeguard their sources. Dr. Palys, meanwhile, wondered if Dr. Maillé’s offer to present her thesis in court rightfully opened the door to the defense wanting the same materials.

For Dr. Maillé, the case still presents personal and professional challenges. She said there are times when her entire day or week gets hijacked by the case. As an academic researcher, she worries about the impact on others if she gives in. “It’s like open season for companies to come in and ask for data from scientists. If they approach someone who can’t take the hassle, that person might just say, ‘Go ahead, take the data and leave me alone.’”