Russel Ogden v. SFU

The Russel Ogden Case

A fascinating case study involving ethics regulation in the universities has occurred over the last few years at Simon Fraser University. The basics of the case are that Russel Ogden, a former graduate student in the School of Criminology, did his MA thesis on the topic of assisted suicides among persons suffering from HIV/AIDS. His proposal, which he submitted to the SFU Ethics Committee, noted that he would offer his research participants "absolute confidentiality." Subsequent to completing his thesis, Ogden was supoenaed to appear in Coroner's Court, and asked to share information with the court regarding a death about which it was thought he might have knowledge. He refused to testify, and was threatened with charges of contempt of court. SFU's administration and Ethics Committee quickly disappeared, leaving Ogden to face the charges on his own. Ogden invoked the Wigmore criteria in support of his assertion that the information he gained was subject to researcher-participant privilege, and eventually won his case, becoming the first and only researcher in Canada ever to have researcher-participant privilege recognized in common law. SFU's only response to the situation was to give Ogden $2,000 on "compassionate" grounds (against his legal expenses, which amounted to approximately $11,500), and then to change SFU's Ethics Policy in a way that precluded researchers guaranteeing confidentiality to research participants in the future.

A colleague (John Lowman) and I believe that the behaviour of SFU in this case was inappropriate, both in its unjust treatment of Russel Ogden, and the way the university's actions in the Ogden case and thereafter seriously undermine the provision of confidentiality, which is one of the cornerstones of ethical practice, and a fundamental requirement for many types of socially valuable research. Much paper has been generated arguing these points. See the following for some views on these matters:

A series of three articles in Simon Fraser News:

The following article appeared in The Bulletin (Vol. 11, Issue 1, 1998), a co-publication of the Social Policy Issues and Ethnic and Intercultural Relations programmes at Simon Fraser University:

The following article gives a slightly different slant on the issues. It appeared in the Canadian Association of University Teachers (CAUT) Bulletin (June, 1998), which is distributed to all university faculty members across Canada.

Russel Ogden sued the university in Provincial Court (Small Claims) to recover more than $9000 in legal bills he incurred in order to defend his research participants and the principle of research confidentiality in Coroner's Court.   Ogden, who represented himself, argued the case as a point of contract: since he was undertaking research as he was required to do as a graduate student, according to professional standards that he had been taught were appropriate, and submitted his proposal to the Ethics Committee as he was required, was not the university obliged to stand beside him in court to defend all that his case stood for? On that point of contract, the judge said "No." The university makes its own decisions about how to safeguard "the highest ethical standards" it is charged with upholding, and has no particular obligation to pay the legal bills of a graduate student who ends up in court, however noble the cause. Judge Steinberg did not stop there, however. The final portion of the written decision contains an obiter dictum, the Judge's observations/opinions about the case over and above the narrow legal issues involved in the adjudication of the case. The entire decision, including his extremely critical observations about the university's behaviour in relation to the Ogden case, deserves to be read. We thank Judge Steinberg for his permission to reproduce the decision here.

Following the release of Judge Steinberg's decision, the university issued a press release that announced the university's victory, and noted that, consistent with Judge Steinberg's suggestion, Dr. Blaney (the SFU President) had established an independent two-person panel to review the Ogden case. The press release was something of a gloss, however, and failed to fully capture the spirit of Judge Steinberg's condemnation of the university's actions. To rectify those omissions, Lowman and I did the following article, which was published in the July 16th edition of Simon Fraser News:

Dr. Bruce Clayman, the VP-Research, and one of those stung by Judge Steinberg's rebuke, wrote a response to our article, which appeared in the same issue:

Lowman and I took exception to Dr. Clayman's response, in part because of its inaccurate reporting of events, and the misunderstanding of law it revealed, and set out to set the record straight. We sent a short "letter to the editor" to Simon Fraser News summarizing some of these problems, which they published in the September 10th issue, and  prepared a more detailed rejoinder to Dr. Clayman, which we reproduce here:

The Russel Ogden saga ended with the release of the Russel Ogden Decision Review, an independent review of the Ogden case conducted by Drs. Nick Blomley (Geography) and Steven Davis (Philosophy) at the behest of SFU President Jack Blaney. The authors do an excellent job of identifying issues of importance to us all that permeated this case. President Blaney accepted all three of the authors' recommendations -- (1) that Ogden be given a written apology; (2) that he be paid retroactively for his legal fees and lost wages; and (3) that the university guarantee that, in future, graduate students who have received ethical approval and whose academic freedom is challenged by a third party will be entitled to legal defense. Better late than never. By accepting these recommendations, SFU has gone from being the university that lets its graduate students twist in the wind, to the university whose graduate students have better guaranteed legal protection than, as far as we know, any other university in the world. Good job, SFU.