A recent ruling by a Quebec superior court has major ramifications for researchers who offer confidentiality to people they interview for their research.
On Jan. 21, Justice Sophie Bourque of the Quebec Superior Court ruled in favour of Christine Bruckert and Colette Parent, professors of criminology at the University of Ottawa, and quashed a warrant that would have allowed police to unseal a confidential interview. The decision means that researcher-participant communication is privileged when deemed appropriate by a judge, even though, in Canadian law, the relationship is not automatically privileged the way that a doctor-patient or lawyer-client relationship is.
The case dates back to May 2012, when Dr. Bruckert heard from Adam McLeod, a former undergraduate research assistant. Mr. McLeod informed Dr. Bruckert that he had contacted the Montreal police about a 2007 interview he had conducted with a male escort as part of Dr. Bruckert’s and Dr. Parent’s research on sex work and intimacy. He had identified the escort as Luka Magnotta, an internationally wanted fugitive suspected in the murder and dismemberment of Concordia University student Lin Jun.
“Because I work with very vulnerable populations, I take seriously that it’s the responsibility of the researcher to protect [participants],”said Dr. Bruckert, whose research primarily involves sex workers. When the police followed up on the tip, Dr. Bruckert and Dr. Parent refused to hand over the interview and sought legal counsel. “We kind of had this idea that once they caught Magnotta, it would simply disappear,” Dr. Bruckert said. (Mr. Magnotta was arrested on June 4, 2012, in Berlin.)
But instead, pressure mounted on them to release the transcript of the interview. So the pair went to the university’s research ethics board, the chair of their department, the dean of their faculty and the Canadian Association of University Teachers. “What became clear is that people were quite prepared to be supportive, but had no concrete advice,” Dr. Bruckert said.
At the time, the only precedent came from a 1994 Vancouver coroner’s inquest. The coroner had subpoenaed Russel Ogden, then a master’s student at Simon Fraser University, to testify to confidential information he had collected while researching assisted suicide among people with AIDS. To refuse would mean facing a contempt of court charge and possibly jail, so Mr. Ogden mounted a defence that his research met the Wigmore test.
The Wigmore test is a legal tool for determining evidentiary privilege under common law that is also applied when determining confidentiality between journalists and anonymous sources. Under this test, the onus is on the researcher to satisfy four criteria: the communications between researcher and participant must originate in confidence that they will not be disclosed; confidentiality must be essential to the relationship between researcher and participant; the community must deem this relationship as one to be “sedulously” [that is, diligently] fostered; and the damage to the relationship must be greater than the benefit gained through disclosure.
John Lowman and Ted Palys, professors with SFU’s department of criminology, took great interest in Mr. Ogden’s case and have since become experts on research ethics and the legal parameters of research with vulnerable populations. They also became a rare source of practical information for Professors Bruckert and Parent.
Their initial advice to the Ottawa researchers was to secure their data. “There are two ways you can do that,” Dr. Bruckert said. “One is under a rock in the Gatineau Hills. The other is with a lawyer.” The researchers sent the data in question – an audio recording and printed transcript of the interview – to lawyer Peter Jacobsen (who had been hired by CAUT). Justice Bourque’s judgment states that on June 22, 2012, police officers seized these documents, which had been packaged and sealed due to Mr. Jacobsen’s motion to quash the search warrant.
In her decision, Justice Bourque also notes that the content of the interview (which she had read) would be of little value to police or Crown, had no bearing on determining Mr. Magnotta’s state of mind, and the breach of confidentiality in this case could greatly harm the “free flow of accurate and pertinent information” between researchers and a marginalized community such as sex workers. Furthermore, she found that the interview had hinged on the promise of confidentiality and that Dr. Bruckert and Dr. Parent had gone to great lengths to ensure it.
As part of the researchers’ protocol, participants provide oral consent only and choose a pseudonym (Mr. Magnotta went by “Jimmy”). The pseudonyms are used when the interviews are transcribed, any other identifying information is removed, and the participants provide a final verification of the data.
Justice Bourque said, moreover, that the university’s research ethics board and the Social Science and Humanities Research Council require researchers to have such protocols in place for protecting confidentiality before a project meets approval and gets funded – all in accordance with the Tri-Council Policy Statement: Ethical Conduct for Research Involving Humans (PDF), the policy guiding all research ethics boards at Canadian postsecondary institutions.
Dr. Bruckert said she is pleased with the ultimate result – she found out in February that the decision would not be appealed – and that she feels largely supported by her colleagues, CAUT and the University of Ottawa (which committed to covering half of the researchers’ legal costs – about $150,000 – and to raising additional funds in case of an appeal). However, observers said the case has made it clear that there’s room for improvement to the research ethics infrastructure in Canada.
Barbara Graves, chair of U of Ottawa’s social science and humanities research ethics board, said that institutions, REBs and funding bodies should support clear legal protections for confidentiality so that research in sensitive areas remains a viable option. “Sources would dry up if they felt the minute the cops came knocking, you would give it up,” she said. As a result of the Jimmy interview case, Dr. Graves said the U of Ottawa REB is considering writing a position paper on research ethics and that U of Ottawa’s office of research ethics and integrity is developing a statement clarifying the university’s position on research ethics and confidentiality.
For his part, Dr. Lowman of SFU points to the Tri-Council policy, dating from 2010, as needing clarification. As it stands, the policy advises researchers to “maintain their promise of confidentiality to participants within the extent permitted by ethical principles and/or law.” Said Dr. Lowman, “Why don’t the granting councils in that document talk about the mechanisms for legally defending researcher-participant privilege” for the rare cases where law and ethics policy are at odds?
The case also shows that despite the strictest of measures, “the impossible happens,” said Dr. Bruckert. “The big take-away for researchers is that they have to design their research in a way that it will pass Wigmore,” she said. “I hope it inspires vigilance on the part of researchers so things never go this far.”