Magnotta case a precedent setter: “Researcher-participant confidentiality privilege” now formally recognized in Canadian common law, to be evaluated case-by-case
Magnotta ruling protects ‘cornerstone’ of research: profs
By Neco Cockburn
January 22, 2014
OTTAWA — A Quebec court decision that keeps a confidential academic research interview of accused killer Luka Magnotta out of police hands protects the “cornerstone” of study work, say the University of Ottawa criminology professors involved in the case.
“It’s a principle of research. We can’t betray the trust participants give us when they share their stories with us,” said Chris Bruckert, who, with Colette Parent, carried out a study titled Sex Work and Intimacy: Escorts and Their Clients between 2004 and 2008.
The research included interviews with 20 female escorts, 20 male escorts and 20 clients of escorts who agreed to speak confidentially. Magnotta was interviewed in March 2007 under the pseudonym Jimmy.
After police arrested Magnotta, now 31, in connection with the death and dismemberment of Concordia student Lin Jun, 33, in May 2012, officers acted on a tip from a student research assistant about the interview and executed a search warrant to seize the audio recording and a paper transcript.
Bruckert and Parent asked a court to quash the warrant, arguing that the circumstances supported a researcher-participant confidentiality privilege.
“This is the cornerstone of doing research — that you protect the confidentiality of your participants, and if you can’t do that, then not only does it threaten research, but it’s ethically unacceptable to do research if you can’t protect the confidentiality of people,” Bruckert said Wednesday.
Quebec Superior Court Justice Sophie Bourque sided with the researchers’ challenge this week, finding the evidence demonstrates “that the public interest in respecting the promise of confidentiality is high.
“On the other hand, the interest of society in the investigation of serious crimes such as the one (contemplated) in this case is high, but the probative value, if any, of the Confidential Interview in the pursuit of that interest is, at best, minimal and marginal both theoretically and factually,” the decision stated.
Such decisions must be made on a case-by-case basis, weighing protection of the relationship with other matters of public interest such as a criminal investigation, public safety or national security, Bourque wrote.
The court, which examined the content of the otherwise-sealed interview, concluded “that the potential relevancy of the Confidential Interview is minimal at most and marginal” to the Crown’s interests.
Magnotta is awaiting trial in September and has pleaded not guilty to five charges, including first-degree murder, interfering with a dead body, mailing obscene matter, publication of obscene material and criminal harassment.
He was arrested in Berlin in June 2012, following a manhunt that was reported around the world.
Bourque found that the researchers’ work “contributes not only to the academic community’s understanding of the sale and purchase of sexual services, but also to the broader public policy and society-wide discussions on this important, and controversial, aspect of Canadian life.
“Promises of confidentiality are integral to (the researchers’) work because it involves acquiring essential information from a marginalized population working in a stigmatized sector. Most participants like Jimmy would not agree to be interviewed in the absence of a promise of confidentiality and anonymity,” the decision states.
Protecting the confidentiality of research subjects is “crucial,” Parent said. If participants fear that confidentiality will be breached, “they won’t give an interview. It took us four years to do our interviews, and we are connected with sex workers’ organizations. This is a population who have a lot of reasons to stay in the shadows,” she said.
The decision makes clear the test that’s to be used in protecting the confidentiality of research subjects, said Bruckert.
“Courts have recognized the social importance of journalists being able to protect confidential sources, and this decision extends a similar recognition to academic researchers,” stated James Turk, executive director of the Canadian Association of University Teachers, in a news release.
Luka Magnotta’s confidential academic video interview not for police: judge
By The Canadian Press
January 22, 2014
MONTREAL – A judge has prevented Montreal police from getting their hands on a confidential academic video interview with accused killer Luka Rocco Magnotta.
The Canadian Association of University Teachers welcomed the Quebec Superior Court decision, saying it upholds researchers’ rights to protect confidential information needed for their academic work.
The association’s executive director says in a statement the ruling represents the first court recognition of researcher-participant privilege.
Montreal police had sought to gain access to a copy of the interview for evidence they’re still gathering against the 31-year-old Magnotta, who is charged with first-degree murder in the slaying and dismemberment of Chinese engineering student Jun Lin.
Lawyers representing University of Ottawa criminologists had argued the 2007 interview with a subject known under the pseudonym “Jimmy” should be kept confidential.
The attorneys said Magnotta participated in the study as part of a survey of sex workers under the condition his interview would remain confidential.
“The impact of this decision is that researchers can now have confidence that courts will recognize and will treat seriously promises of confidentiality vital to the conduct of their research,” James Turk, executive director of the Canadian Association of University Teachers, said in a statement Wednesday.
“Courts have recognized the social importance of journalists being able to protect confidential sources, and this decision extends a similar recognition to academic researchers.”
The news release published by Turk’s association said that, in her ruling, Justice Sophie Bourque noted “much academic research… provides useful information on certain aspects of the human condition that are normally kept silent.”
The Bourque ruling was also quoted by the association as saying: “The evidence demonstrates that much of the research involving vulnerable people can only be conducted if human participants are given a guarantee that their identities and the information that they share will remain confidential.”