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U of O profs stress importance of confidentiality in criminal investigations

Photo by Adam Feibel

The two University of Ottawa professors who conducted a research study that included an interview with accused killer Luka Magnotta have won their legal bid to quash a Montreal police warrant for the video.

Professors Christine Bruckert and Colette Parent took the matter to court last March in order to challenge the seizure of a video interview with Magnotta, under the alias Jimmy. The interview was conducted six years earlier for a study called “Sex Work and Intimacy: Escorts and Their Clients” that took place between 2004 and 2008. Magnotta was one of 20 male escorts, 20 female escorts, and 20 clients of escorts who agreed to participate in the study under the promise of confidentiality.

Magnotta, 31, is charged with the murder and dismemberment of 33-year-old Concordia University student Lin Jun in 2012, among other related charges.

Quebec Superior Court Justice Sophie Bourque ruled in favour of the professors after finding that the importance of preserving the relationship between the researcher and the subject outweighed the video’s usefulness to police.

“The evidence demonstrates that the public interest in respecting the promise of confidentiality is high,” the decision stated. “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.”

Bourque made it clear that similar decisions would be made on a case-by-case basis, in which a judge would determine whether research materials better serve the public good by remaining confidential or by contributing to criminal investigations, public safety, or national security.

“As far as we are concerned, it’s difficult to see cases where the data would be necessary to fight crime,” said Parent.

The court used a Wigmore test, a four-step process to evaluate privilege. The test stipulates that confidentiality must be promised, the research must be necessary, the research must be relevant to society, and the court must weigh the public interest versus private interest.

Upon privately examining the content of the interview, the court concluded that “the potential relevancy of the Confidential Interview is minimal at most and marginal” to the investigation, and that police “could obtain that type of evidence by other means.”

Magnotta’s trial is set to begin in September. He has pleaded not guilty to five charges, including the first-degree murder of Lin, a Chinese international student at Concordia.

The warrant for Magnotta’s interview was granted in June 2012, shortly after U of O graduate Adam McLeod informed Montreal police of the interview he conducted with Magnotta in 2007. McLeod was a fourth-year student when he assisted the professors with their study by gathering data and conducting a number of interviews on their behalf.

Bruckert said the takeaway from the case is that researchers need to develop their protocols with “a clear eye for protecting confidentiality,” and to recognize the potential threat of a search warrant.

“The decision is a good one,” she said. “It doesn’t give researchers a blanket — we’re not priests or doctors where there’s a blanket confidentiality — but what we’ve established is that … there’s a process through which the courts will go and that we can challenge the police seizing our data. So that’s all really, really positive.

“But it also means that there are limits,” she said. “Essentially it means we have to be very, very careful to prevent the police from even seizing our data.”

The university issued an official statement that recognized the “significance of the issues” raised in the proceedings.

“The university welcomes the Quebec Superior Court’s decision and it is pleased that the court has recognized the importance of academic research and the duty to uphold the promise of confidentiality made to research participants,” the statement read.

The criminologists were represented by the Canadian Association of University Teachers (CAUT). James Turk, the organization’s executive director, said it was an “enormously important” case that could have tarnished the ability for academics to conduct research on illicit behaviour in order to gain knowledge on a particular subject and serve the public good.

“You’re asking people to give you information that could be used to put them in jeopardy in the criminal justice system, and so you have to promise them confidentiality,” said Turk. “If they don’t have a sense that that confidentiality will be respected by courts, they’re not going to talk to you.”

The U of O contributed $150,000 to the legal costs incurred by CAUT — about half the estimated $300,000 total — despite its statement last year that it would not.

In March, the university officially stated that it “does not consider that it is part of its role to pay for legal costs if researchers decide to challenge the seizure of research records in the context of criminal proceedings.”

Meg Lonergan, a fourth-year criminology and women’s studies student at the U of O, spearheaded a letter-writing campaign to ask the university to reconsider its position. Ted Palys, a criminologist at Simon Fraser University (SFU), filed a complaint against the university to the federal Secretariat on Responsible Conduct of Research for failing to help protect the professors. Bruckert and Parent also received considerable moral support from the U of O student community and the Research Ethics Board.

In an email to the Fulcrum, Lonergan, who’s currently completing her fieldwork placement in Ghana, said that although she doesn’t know whether the campaign had anything to do with the university’s change of heart, she’s relieved with the outcome of the case.

“I am thrilled by the news and the precedence it continues of respecting research confidentiality in Canadian social science research,” she said.

Bruckert said it was “extremely unfortunate” that the U of O didn’t immediately offer financial support for the two professors, but said she’s “heartened that the university did recognize its obligation.” She added that she hopes the university introduces a policy that clearly stipulates that obligation, such as one that exists at SFU.

Turk, who had back-and-forth email correspondence with U of O president Allan Rock for about a year, said he’s grateful that Rock did eventually decide to contribute to the legal costs.

“I think that this whole thing was a surprise to everyone,” said Parent. “I don’t think that anybody had ever seen a case like that, and I think it was difficult for a lot of people to know how to react.”

 With files from Sofia Hashi