Researcher-participant confidentiality now a formal concept in Canadian law
Canadian Medical Association Journal
February 3, 2014
The successful quashing of a search warrant for confidential research records has changed the landscape for protecting research participants in Canada, says a research confidentiality expert. John Lowman, a criminology professor at Simon Fraser University in Vancouver, British Columbia, says the court decision made researcher-participant confidentiality privilege a formal concept in Canadian law. However, the privilege won’t apply automatically to all confidential data; the ruling from Quebec Superior Court underscores that it must be argued on a case-by-case basis.
The pivotal case began in late May 2012, when an international manhunt was underway for Luka Magnotta, the Montréal porn actor suspected in the gruesome, videotaped murder of a Concordia University student in Montréal. With the web awash in photos of Magnotta, a man contacted police and told them that five years earlier, when he was a research assistant on a Social Sciences and Humanities Research Council-funded study of escorts, he had interviewed the alleged murderer. University of Ottawa criminologists Chris Bruckert and Colette Parent led that study, but when Montréal police asked Bruckert if Magnotta had been interviewed, she said she didn’t know.
“In fact, there was no way I could have known,” she told CMAJ. To protect the privacy of research subjects working in the sex trades, Bruckert and Parent used strict confidentiality protocols, including asking research participants to choose pseudonyms — Magnotta chose “Jimmy” — and having their research assistants sign the pseudonyms to consent forms, to guard against anyone identifying participants based on handwriting. After an interview is taped, transcribed and stripped of obviously identifying information, they send it to the participant to delete other details that could identify them. Once the participant returns the transcript, the team destroys the participant’s e-mail address, along with the connection between the name, e-mail address and pseudonym.
Undeterred, police told Bruckert they would take legal steps, including a search warrant, to obtain the interview.
Bruckert contacted the Canadian Association of University Teachers (CAUT) where Executive Director Jim Turk hired Peter Jacobsen, a lawyer known for defending journalists who are pressed to divulge their sources. Bruckert sent the digital audiotape of the interview and the 68-page transcript to Jacobsen’s Toronto office. Police seized the materials there, but took them in a sealed package, because of the legal move to quash the search warrant on the grounds that it would violate the researchers’ promise of confidentiality.
By then, Magnotta had been arrested in Europe. Later he wrote an affidavit stating that he gave an interview as “Jimmy” in a study at the University of Ottawa, that he was assured the interview would be private and confidential, and that he wanted it to remain so.
To Bruckert, the threat was clear: her research on sex workers would be impossible without confidentiality. But the issue had been tested only once before in Canada. In a 1994 Coroner’s Inquest in Vancouver, a masters’ student was subpoenaed to testify about confidential interviews with individuals who assisted suicides among people with HIV/AIDS, but after he refused to answer questions, the coroner ruled that the student’s communications with his research subjects were privileged so his refusal to answer questions was not contempt of court.
As Bruckert and Parent worked to prepare their case, CAUT negotiated with the university seeking its support of the researchers, but University of Ottawa President Allan Rock wrote Turk that the university would not pay legal costs “in the context of criminal proceedings.” Members of the university’s Research Ethics Boards also pressed for support for the professors, writing Rock that a board had approved the research on condition of the participants’ confidentiality, and months later, University administrators agreed to cover about half the CAUT’s expense, or $150 000.
The hearing took place in April 2013 before Justice Sophie Bourque of Quebec Superior Court. Her 37-page decision issued Jan. 21, follows a legal framework known as the Wigmore criteria, a four-step analysis to determine if a particular communication should be protected against disclosure. The case hinged on whether the public interest in obtaining the “Jimmy” interview for the investigation and suppression of crime outweighed the interest in what Justice Bourque described as “the free flow of accurate and pertinent information,” which could dry up without a reliable promise of confidentiality. She broke the seal and reviewed the interview transcript privately, but did not share its contents, writing that its relevancy to the charges against Magnotta or to a “not criminally responsible” defence was “minimal at most and marginal.” Bourque quashed the search warrant, concluding that “the Confidential Interview is covered by the researcher-participant confidentiality privilege and…it should not be disclosed.”
The Crown has until late February to appeal the decision but already, the case has prompted rethinking of researchers’ duties. New guidelines at the University of Toronto, for example, list principles to be followed in “research where external pressure to disclose is reasonably foreseeable” and the federal Panel on Research Ethics told CMAJ it would issue a new interpretation of the duty of confidentiality in the next two months.