Professor Stenning's misunderstanding issues from his quoting the first part of the SFU informed consent statement out of context. The statement also says, "as a result of legal action, the researcher may be required to divulge information obtained in the course of this research to a court or other legal body." All the commentary we have seen reveals a profound irony in the common law relating to confidentiality. By implying that you will violate a court order to protect confidentiality (i.e., you guarantee unlimited confidentiality like Russel Ogden did), the greater the likelihood a court will recognize that a communication is privileged. The SFU consent statement is disastrous when it comes to employing the Wigmore test to protect confidential information, because it makes it clear that unlimited confidentiality is not being offered. In these circumstances, the court could just say, "The information was not confidential because you told the research participant a court might require it, and a court now requires it, ergo no privilege is recognised."
Professor Stenning seems to think the meaning of the phrase, "the extent permitted by law" is self-evident. But it is not. Russel Ogden's experience and the subsequent actions of the SFU Ethics Committee make it clear that the university and the committee believe the limit of the law is reached when a court asks for information. In this regard, we would urge professor Stenning to read Judge Steinberg's Decision in Russel Ogden v. SFU where he admonishes SFU for not recognising that "the rule of law includes the right to determine what the boundaries or the extent of academic privilege might be by way of a court challenge." In his concluding paragraph, professor Stenning says: "If we find the law intolerable, of course we have the option to advocate changes to it but not the right to disobey it with impunity." The first claim in this sentence is all well and good when we are talking about statutory law. Indeed, Canadian researchers should campaign to secure researcher-participant (i.e., academic) privilege in legislation, as is currently available only to Statistics Canada researchers and their participants (Statistics Act, section 18). Also we should campaign to obtain the equivalent of the "privacy certificates" that are available to US researchers exempting them from mandatory reporting requirements.
But the Ogden case raises a different issue. The "law of the land" is written after the fact. According to the Supreme Court of Canada, the appropriate mechanism for establishing privilege on a case-by-case basis is the Wigmore test. And here is the most important point: If researchers can successfully use the test, as Ogden did, it may lead to the establishment of a class privilege (which is precisely how Wigmore intended it to be used).
Consequently, we would advise Canadian researchers who believe that confidentiality is integral to the research enterprise to design their research in light of the Wigmore test: is the element of confidentiality essential to the relationship between researcher and participant? Is the relationship one that should be sedulously fostered? Is the injury that would inure to the relation by the disclosure of the communication greater than the benefit thereby gained for the correct disposal of the litigation? If all three answers are "yes," then the pact should be sealed with a guarantee of unlimited confidentiality. If a judge ordered a researcher to disclose information, we think it is essential to the integrity of the research enterprise to appeal the decision all the way to the Supreme Court of Canada if need be. And what if the Supreme Court ordered a researcher to divulge confidential information? We argue that they should not divulge it. Would this hypothetical researcher have exercised "the right to disobey (the law) with impunity?" Of course not -- he or she would have to submit to the sentence imposed. This is the same as the journalists' code of ethics, and we shudder to think that ours would be any different. Academic privilege is a social good worth fighting for, even if it means the loss of liberty.
Professor Stenning asserts that academic freedom does not include freedom to ignore the established law of the land. While we think it highly unlikely that a Canadian researcher would be put in the position of having to violate the law, we believe that any doctrine that absolutely subordinates research ethics to law is a very dangerous infringement of academic freedom because it erodes the university's independence from the state. We will continue to resist this kind of imposition.
JOHN LOWMAN & TED PALYS
Criminology, Simon Fraser University