Court upholds researchers’ right to protect confidential information
Researchers across Canada won a major victory when police efforts to seize confidential research records were quashed in a precedent-setting Quebec court decision last month.
Quebec Superior Court Justice Sophie Bourque denied Montreal police access to a taped interview with accused killer Luka Magnotta, upholding, for the first time, the rights of researchers to protect confidential information necessary for their academic work.
“This decision is the first court recognition of researcher-participant privilege,” said CAUT executive director James Turk. “Courts have recognized the social importance of journalists being able to protect confidential sources, and this decision extends a similar recognition to academic researchers.”
Bourque said in her ruling that “much academic research … provides useful information on certain aspects of the human condition that are normally kept silent.
“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.”
The interview with Magnotta was conducted in 2007 as part of University of Ottawa criminologists Chris Bruckert’s and Colette Parent’s research into the sex trade.
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.”
Just as with journalists’ right to shield the identity of sources during police investigations, the court was clear that researcher-participant privilege is not absolute, depending in each case on weighing the public interest in respecting the relationship with the interest in criminal investigations.
In June 2012 when confronted by Montreal police to surrender the confidential interview, Bruckert and Parent turned to CAUT for assistance. CAUT hired Peter Jacobsen, a prominent lawyer in the defence of journalists’ privilege, to represent the researchers while asking, along with the Association of Professors of the University of Ottawa, for the university to step in and fulfill its obligation under Tri-Council policy to support its researchers in maintaining promises of confidentiality.
But the university refused, writing to CAUT in December 2012 that it would not pay legal costs “in the context of criminal proceedings.”
Members of the University of Ottawa’s research ethics boards spoke out in March 2013, pressing the university administration to come forward in support of professors Bruckert and Parent, and joining CAUT in pointing out that a board had approved the research on condition that participants’ confidentiality would be protected.
Six months after the April 2013 court hearing that took place before Justice Bourque, the University of Ottawa administration offered to contribute $150,000 to the legal costs incurred by CAUT.
While Turk expressed appreciation for the university’s assistance, he maintained universities are obliged to defend the confidentiality of their academic staff’s research records. He noted that the Tri-Council policy is unambiguous: “Institutions shall support their researchers in maintaining promises of confidentiality.”
According to Turk, the impact of the Quebec court ruling 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.
Source: CAUT Bulletin 61:2 (February 2014)