Table of Contents

Part I. THE OBJECTIVES, INTERESTS AND VALUES OF A UNIVERSITY *

Part II. PROFESSOR JACKSON AND MACCRIMMON'S LEGAL ANALYSIS *

Part III. AN ETHICS-BASED FRAME OF REFERENCE *

Part IV. REFLECTIONS ON PROFESSOR JACKSON AND MACCRIMMON'S RECOMMENDATIONS FOR AN ETHICS POLICY AT SFU *

Part V. concluding remarks *

SFU School of Criminology

From the fall of 1997 on, we urged SFU to obtain a properly researched legal opinion on research confidentiality and researcher-subject privilege.1 We now have that in the form of Michael Jackson and Marilyn MacCrimmon’s June 7, 1999 opinion commissioned by the Research Ethics Policy Revision Task Force.2 We thank the Task Force for having taken the initiative to recruit these two distinguished legal scholars to prepare a legal opinion, and we thank Professors Jackson and MacCrimmon for having waded into these complex legal and ethical issues to the extent they did.

Although we would have been interested to read Jackson and MacCrimmon’s insights regarding the law of privilege in any event, the experience was all the more interesting because of their decision to address many of the issues we raised in our submissions to the SFU Research Ethics Task Force about jurisprudence, the Wigmore test, and potential conflicts between research ethics and law. Their comprehensive and thoroughly researched opinion stands as the state-of-the-art legal work on the subject in Canada.

In very general terms, we are most grateful for their detailed articulation of the criteria used in judicial decision-making on privilege. In this regard, Jackson and MacCrimmon's analysis of pivotal Canadian and US cases (A.M. v Ryan and Cusumano and Yoffie v. Microsoft) acquaints researchers with the legal conceptual filters through which any claim for researcher-subject privilege must pass. Their re-examination of the Russel Ogden case (see pp.104-116) through application of the principles unearthed in their analysis of Ryan and Cusumano and Yoffie stands as the most thoughtful and useful legal consideration of the Ogden case we have seen.

Having offered us this framework, the authors then expound the implications of a legal conceptual framework for ethics and ethics policy. In the interests of comprehensiveness, Jackson and MacCrimmon actually take on two tasks simultaneously, by addressing the two approaches alluded to in the Tri-Council's Policy Statement, when it states that "legal and ethical approaches may lead to different conclusions" (p.i.8).

In the first instance, the authors fulfil their commissioned role to examine the law of privilege, and whether there even is legal defence of researcher academic privilege. They agree that there is, and then examine how best to assert it. Researchers who choose a priori to be as ethical as they can be within the confines of contemporary law will no doubt appreciate Professor Jackson and MacCrimmon's well-considered advice. We term this "within the law" approach the "law-based" perspective.

In the second instance, they talk about how the "ethics-based approach" we articulated in our prior submissions to the Task Force might be refined on the basis of their legal analysis. The ethics-based approach is distinguished by its a priori position that ethics should not necessarily be subjugated to law, and recognizes that our professional allegiance is to ethics over law. It is this position that may lead to different conclusions from law.

In these, our "reflections" on the Jackson-MacCrimmon Opinion, we take the opportunity to consider their advice regarding both approaches in light of the ethics that is presumably at the heart of any ethics policy. Indeed, the cogency and comprehensiveness of the Jackson-MacCrimmon Opinion allows us to consider here what exactly the Tri-Council's phrase — that "law and ethics may lead to different conclusions" — means in practice.

For our purposes in this response, we differentiate three main parts to their legal opinion. The first (their Part I) is their statement of the university’s mission, and the part that research plays in that mission. The second (their Parts II through V) is their legal analysis of the law of privilege. This takes into account: a) the one Canadian case in which researcher-subject privilege was asserted (successfully) in court; b) Canadian jurisprudence with respect to other forms of privilege that may have a bearing on the way that assertions of researcher-subject privilege would be greeted by the Supreme Court; and c) American jurisprudence that bears more directly on challenges to research confidentiality. The third part of their Legal Opinion comprises their recommendations for constructing a new ethics policy at SFU (their Part VI). We comment on each of these parts in turn.

Professors Jackson and MacCrimmon preface their legal opinion with a discussion of the objectives, interests and values of the university. These include (a) promoting research and the social benefits that it advances (pp.5-6); (b) promoting academic freedom (pp.6-8); and (c) promoting ethical conduct in research (pp.8-11).

A fourth set of values/objectives they cite deserves separate consideration: developing polices and procedures that "promote respect for the rule of law" and encouraging a culture of research that enhances the protection of human rights (pp.11-17). Including promotion of respect for the rule of law as a specific objective of the university is contentious. Critical theorists and some feminists have argued that the "Rule of Law" cannot be taken at face value, claiming it is an ideological construction masking substantive injustice, and anyone interested in protecting academic freedom would staunchly defend their right to promote this view. At a different level, making promotion of respect for the rule of law an objective of the university creates and reaffirms the very tension that has animated the "confidentiality debate" at SFU, i.e., that ethics and law may sometimes lead to different conclusions. Indeed, Jackson and MacCrimmon quote the Tri-Council Policy Statement (TCPS) to this very effect:

We agree that researchers should do everything possible to ensure ethical decisions respect the law, but they should also try to ensure that legal decisions respect ethics. This leaves difficult questions about those rare occasions when ethics and law "lead to different conclusions." In our view, there is no single "correct" solution when ethics and law conflict. One's ultimate allegiance to ethics or law is itself an ethical choice and the ability of researchers to make it, and of universities to support them either way, is an integral element of academic freedom. Professors Jackson and MacCrimmon appear to agree on this issue in their principled recognition that, "On the ethical issues, as lawyers and law professors, we have no monopoly to pass definitive judgements" (p.187). In accordance with these views, we presume they would agree that no one should have the right to develop an ethics policy that stops researchers from pursuing an ethics-based ethics strategy.

At the same time, notwithstanding the cogency of Professor Jackson and MacCrimmon's law-based analysis and their resolve to remain as ethical as possible at every legally-defined turn, we suggest that their foray into ethics reveals the limitations of constructing an ethics policy on legally-based as opposed to ethics-based categories. For us, the point is straightforward: law cannot be more ethical than ethics, but ethics can be more ethical than law. Consequently, our allegiance in the last instant is to ethics, even if that means violating law. This is the basis of the ethics position we have developed in our various submissions to the SFU Ethics Task Force, and in our protracted debate with the Simon Fraser URERC and university administration over the right to do our research.3 It is also the framework guiding our following observations about the Jackson-MacCrimmon Legal Opinion.

Our reading of Professors Jackson and MacCrimmon's legal analysis shows there are many points on which we agree; we begin by outlining some of the more important of these below. There are other points we would like them to embellish and/or clarify, and others on which we would urge them to chart a slightly different course, or to explain why they think our approach is inappropriate or ill advised from an ethical point of view.

In terms of the position we have outlined in our various submissions to the Task Force, the most important aspect of Jackson and MacCrimmon’s Legal Opinion is that they agree that researchers and universities are ethically obliged to do "everything possible" to maintain the confidentiality of information gained in research. In this regard, they concur (p.121) that "doing everything possible" requires researchers to design research protocols with an eye to using common law to protect confidential research information. That has been our main point all along.

Toward this end, their legal analysis is an insightful and critical preview of how a court would evaluate a claim for researcher-subject privilege and of the legal tests to which such a claim would be submitted. Their opinion provides a much needed reality-check that leaves us all better informed about the challenge that awaits those rare few researchers whose ethics mettle may someday be tested in court.

With the Wigmore criteria providing the conceptual framework, Jackson and MacCrimmon offer indispensable advice about how to design research to anticipate the evidentiary requirements that materialize when a claim of privilege is made (see pp.122-132). Further, their sections on "The Law of Privilege" (Part III), and American Jurisprudence (Part IV) offer important information about the factors that will make a researcher's assertion of privilege more or less likely to succeed.

By and large, we believe the Jackson-MacCrimmon analysis tends to support the optimism that characterized our earlier submissions to the Task Force. For example, they suggest that the Russel Ogden case is a significant one, and their analysis of it may well influence future judicial decision-making regarding researcher-subject privilege.

Jackson and MacCrimmon's analysis of the US literature also maintains our optimism. Their detailed discussion of Cusumano and Yoffie v. Microsoft — one of the most significant in terms of the interests pitted against each other in the civil arena — reaffirms the view that, notwithstanding the absence of a class privilege for researcher-subject communications, US courts value the research enterprise, understand the importance of confidentiality to that enterprise, and appreciate the extent to which the undermining of research confidentiality would restrict academic freedom, with society and future litigants being the losers.

Even in cases where the US courts have decided to order disclosure, Jackson and MacCrimmon's review suggests that most of them issue partial disclosure orders to ensure that harm to researchers and their subjects is minimized. Most important for our own research — in which the subpoenaing of interview transcripts and field notes poses little threat because of the care we take to anonymize them at the earliest opportunity — Jackson and MacCrimmon affirm that US courts have generally respected research subject anonymity. Even when a court has ordered disclosure of confidential information, the order rarely includes the identity of subjects.

In sum, the impression we derive from the Jackson and MacCrimmon opinion is that only very rarely will ethics and law conflict. Given the relatively small number of cases in which third parties have sought confidential research information — even from the US, which the authors label "the most litigious nation on earth" — the over-riding impression is that ethics and law co-exist harmoniously. Even when they do cross paths, the one Canadian case and the twenty or so US ones reveal that, most of the time, the identity of research subjects is protected.

There are two situations where a court might order disclosure of confidential research information: (1) when maintaining confidentiality would undermine a defendant’s right to full answer and defence, and (2) when public safety is endangered. Each of these situations warrants further discussion.

According to Jackson and MacCrimmon, the worst-case scenario for the researcher will arise when researcher-subject privilege and the rights of research subjects to confidentiality are pitted against the right of an accused to a fair trial, i.e., to full answer and defence. Stated simply, they believe the evidence suggests that, when the confidentiality of research information is pitted against the right to a fair trial, the researcher (and his/her research subjects) will lose. They discuss two cases that bear on this principle:

1. R. v. O'Connor in Canada (pp.45-48). Although this case dealt with therapist-client privilege, it gave an opportunity to observe how the Supreme Court weighs a complainant's right to privacy against the right of an accused to full answer and defence.
2. The Richard Leo case in the United States (pp.85-93). Although it never resulted in a formal written decision, Professors Jackson and MacCrimmon view this case as the best test of whether it is possible for academic privilege to supersede the right of an accused to a fair trial. We wonder whether the case is so straightforward. Also, we note that this is the only case discussed in the literature on privilege where these two interests have been pitted against each other.

We consider each of these cases in turn.

The absence of any Canadian jurisprudence on researcher-subject privilege places us all in the role of speculators regarding what the courts might do when asked to weigh the maintenance of confidentiality in the researcher-subject relationship against the right of an accused to a fair trial. Accordingly, Professors Jackson and MacCrimmon looked to see how other forms of privilege fared in the Supreme Court when weighed against the right of an accused to a fair trial. The O'Connor case — which involved a claim of therapist-client privilege — provided such an opportunity.

Very briefly, the clients in question were several Aboriginal women who had engaged in therapy as part of the process of healing from a series of sexual assaults they suffered at the hands of Bishop O'Connor in a residential school when they were youths. When Bishop O'Connor was charged with the crimes, he sought to have records of the women's therapy entered as evidence. The Crown objected, stating that giving access to the therapy records violated the women's privacy and equality rights. After much agonizing, the Court decided by a margin of 4 to 3 that O'Connor's right to make full answer and defence took priority over the women's privacy and equality rights.

One element we wish Professors Jackson and MacCrimmon would have explained further because of its relevance to their opinion is the apparently obvious legal flaw that the information the Crown sought to protect (on behalf of the women) was no longer "confidential" at the time the court was asked to rule about whether it should be considered privileged. The women had already shared their therapeutic records with the Crown as part of the process of ensuring that Bishop O'Connor would be charged and tried. On this point, and writing as part of the majority, Lamer CJ and Sopinka J state:

A further element of the O'Connor that Professors Jackson and MacCrimmon do not address is the conflict of interest that exists for the complainants, who want to release information to some parties, but not to others. Justices Lamer and Sopinka stated the point most directly when they noted that

In sum, the outcome of the O'Connor case did not turn on the issue of privilege, since the majority held that considerations of privilege were irrelevant when the complainants themselves had already waived the confidentiality of their records. Nonetheless, the Supreme Court did comment on the issue of how privilege would fare if pitted against the right of an accused to full answer and defence. Lamer CJ and Sopinka J stated the following in this regard:

We emphasize "may" in the preceding quote to draw attention to the Court's acknowledgement that just as privilege is not absolute, the accused's right to full answer and defence is not an absolute right superseding all other rights. As Madame Justice McLachlin commented in her minority decision in O'Connor:

In contrast, Professors Jackson and MacCrimmon quote Madame Justice McLachlin from her decision in A.M. v. Ryan to the effect that:

We wonder if this juxtaposition of quotes may be taken to affirm that the right to full answer and defence is not a monolithic and uniform right that will receive the same weight in all circumstances. Just as the interest in protecting public safety is activated in only those situations that are serious, imminent, and with a clearly identified target (cf Smith v. Jones), and not by any and every threat, one would think that, to be consistent with the various things the Supreme Court says about privilege, the balancing of a defendant’s right to a fair trial and the privacy interests of research subjects surely must also be balanced on a case-by-case basis. Indeed, L'Heureux-Dubé J said as much in her minority opinion in O'Connor:

If, like privilege, the right to make full answer and defence is not absolute, then the Supreme Court will engage in a balancing exercise that weighs the right of a volunteer research subject to privacy with the right of an accused to a fair trial. Professors Jackson and MacCrimmon base their cautious advice that researchers are likely to lose that balancing on the Court's rulings in civil suits related to sexual assault (A.M. v. Ryan; A. (L.L.) v. B.(A.)) and criminal cases involving sexual assault (R. v. O’Connor) or murder (R. v. Gruenke). Most of the hypothetical examples supplied by Professors Jackson and MacCrimmon involve what we refer to elsewhere as "heinous discovery" situations (e.g., we discover the identity of a murderer and realize an innocent person has been convicted, and is being sent down for life imprisonment).

But what if we change the stakes by examining a case that could arise in research on prostitution? Professors Jackson and MacCrimmon chide us on occasion for picking what they refer to as "best-case" scenarios (e.g., p.154), in which case we presume they would accept that basing their advice on "worst-case" scenarios is equally problematic. For our part, we try whenever possible to pick scenarios that are based in research we have conducted, or that we could envision happening on the basis of our experience in the field. The example that follows is a case in point.

One of Lowman’s studies included observing police enforcing the communicating law (Criminal Code section 213). This statute prohibits any public communication with the purpose of engaging in prostitution or engaging the services of a prostitute. As this is a summary offence, the maximum sentence is six months in prison. In practice, clients rarely go to prison. Indeed, in Vancouver from 1991 to 1994, 87% of clients found guilty of communicating received an absolute or conditional discharge, and thus did not end up with a criminal record. In this research, police were assured that their identities would not be divulged, and that information they had given would not be attributed to them. We suggest that confidentiality was vital to this observational research, and would not have been possible had confidentiality been limited at the outset.

What if one of the men charged with communicating, realising that a researcher had observed the defendant’s interaction with police, subpoenaed the researcher as a material witness? How would a court weigh the various factors in the face of a claim for privilege in this instance? The likelihood is that even if the accused were to be convicted, he would not go to jail. Indeed, after six months, he would not even have a criminal record. The harm caused by this hypothetical wrongful summary conviction is hardly on a par with the harm done to David Milgaard, Donald Marshal or Guy Morin. And yet the harm done to police research could be considerable. In the scenario described above, we would not have testified in the event that a court ordered us to.

We wonder whether Professors Jackson and MacCrimmon would reconsider the apparent absolutism of their judgement regarding the right of an accused to a fair trial superseding the rights of researchers and subjects to engage in confidential communication. Do they believe it will not matter to the Supreme Court whether the criminal act being adjudicated is a serious crime, a summary offence, or something in between?

Another aspect of our ethical argument that Jackson and MacCrimmon do not address concerns the unique situation in which research subjects provide information that may harm them. We have already suggested that by releasing information to the Crown for the purpose of prosecuting Bishop O’Connor, they had effectively waived privilege, the interest they have in making this information available to some parties, but not to others, also needs to be taken into account.

In O'Connor, the complainants had alleged sexual assault on the part of Bishop O'Connor, and presumably wished to see him charged, prosecuted, found guilty, and punished. Thwarting his ability to use whatever means he could to mount a defence has the appearance of a conflict of interest because it helps achieve these objectives.4 Similarly, in A.M. v. Ryan, the civil action for damages by M. is more easily won when Ryan's opportunity to make full answer and defence is impeded, particularly with respect to the impact of the event on M, which would have been the very focus of therapy. In such situations, the court’s attempt to balance competing interests apparently takes into account the vested interest of a complainant who has something to gain by revealing information to one party, but not to another.5

In contrast to the complainants in these cases, and indeed in contrast to all claims of privilege we are aware of, research subjects do not have nearly as much to gain when they divulge information about themselves to researchers. Indeed, in some cases, they have much to lose. In Going the Distance, we stated the case this way:

As the law stands, class privileges exist only in those instances where there are compelling policy reasons and the relationship at issue must be inextricably linked with the justice system. We suggest that because the circumstances in which the research subject provides information is unique and the value of research is potentially so great, that policy reasons alone warrant changing the common law rules for the recognition of class privilege in this case.

Lamer CJ and Sopinka J described the considerations that would be involved in this balancing of interests:

The element that particularly interests us here, but that Professors Jackson and MacCrimmon largely pass by, is with respect to the probative value of different types of research information. In her dissenting opinion, Madame Justice L'Heureux-Dubé made the following remarks about therapeutic records of the type considered in O'Connor:

Many of the same comments could be made with respect to research records, although different issues arise in the research context as well. Scientific and legal standards of "validity" overlap but differ in important respects. How would the Court treat interview data? Does information the research subject provides on the basis of direct observation have greater probative value than hearsay? Does information from a taped interview have greater probative value than a set of notes taken during an interview? What if the information is contained in an anonymized transcript and the researcher cannot recall precisely who the subject was? In the case of observational field notes, would it make a difference if the notes were generated in situ or following the observational period? Are there any circumstances under which data could be considered completely "safe" from probing by the courts? For example, are completely anonymized field notes and interview transcripts any use to a court? What if the researcher has done so many interviews or observations that his/her memory about who any given subject was can no longer be considered reliable? Such considerations would be important for ethical researchers to know — any technique that could make research records less "interesting" to the courts without any appreciable cost to methodological validity should be considered. Any advice that Professors Jackson and MacCrimmon could offer in this regard would be appreciated.

In their introduction to the Richard Leo case, Professors Jackson and MacCrimmon say:

Because it deals with a situation where academic privilege was pitted against the constitutional right of a defendant to a fair trial, it is indeed an interesting case, and worthy of the detailed examination that Professors Jackson and MacCrimmon give it. We embellish their discussion by considering some of the ethical aspects of the case which Jackson and MacCrimmon do not highlight, as again it is a situation where our ethical position would preclude our testifying, unless the research subjects waived privilege. When we examine some of the ethical decisions Leo made, we are not convinced the legal outcome is as clear cut as Jackson and MacCrimmon suggest.

Jackson and MacCrimmon regard Leo’s case as one of the strongest claims for "academic privilege" that they encountered. They note (p.85) that it took Leo three months of negotiation to secure ethics approval. However, they do not mention the painstaking two-year process through which he had to go before the Laconia7 Police Department (LPD) granted him access, and the additional months it took to win the trust of the officers conducting interrogations. Achieving that access was no small feat, as the interrogation room is shrouded in secrecy. As Leo explains:

The main worry of the detectives who conducted the interrogations was that an exposé of police interrogation practices by a hostile observer might not reflect well on, and could have negative repercussions for, individual officers and the Police Department as a whole. Leo (1995) explains:

The primary condition of his access to the interrogation room — required by both the LPD and Berkeley's ethics committee — was an agreement that confidentiality would be maintained. Any reports or publications would use pseudonyms to refer to individual police officers and the department as a whole.8 Leo saw his ethical obligations thus:

The particular case for which Leo was subpoenaed came as something of a surprise, because it was not one of the more contentious interrogations he had observed:

It is relevant that both Leo and his attorney believed that Leo's testimony actually supported the police account of events, although they continued to argue in court that,

Despite many efforts by Leo, his dissertation supervisor, and his attorney to address the court's requirements without actually having Leo testify in court and produce his field notes, the judge in the case eventually intervened:

In the end, Leo decided to testify. As he explains:

Events did not proceed as expected. Although Leo's notes and testimony established that the interrogators had not threatened the accused, the notes nonetheless included information that led the trial judge to conclude that the accused's Miranda rights had been violated for other reasons, and the confession was not allowed as evidence in court. Leo felt the burden of this outcome:

The court ultimately convicted the accused on one count of armed robbery, but dismissed the other charges against him. Leo, who earlier had felt that a failure to testify might irreparably harm the research relationship between researchers and police, now concluded that his decision to testify may have done the same:

Professors Jackson and MacCrimmon see the Leo case as making the strongest possible argument for academic privilege, and place great significance on the fact that the judge in the case ordered disclosure nonetheless:

Framing the case this way conflates what are actually two separate issues — "academic privilege," the legal category on which Jackson and MacCrimmon are focussing their analysis; and "the rights and interests of research participants," which is the ethical interest that researchers are obliged to uphold. In most cases, these two categories will be synonymous — asserting researcher-subject privilege is the way that researchers in most cases will protect the rights and interests of research subjects.

However, the objective of an ethical approach is ultimately not to promote "academic privilege" per se, but to protect the rights and interests of our research subjects. It is, after all, their privilege more so than it is ours, just as solicitor-client privilege is not the privilege of the solicitor, but of the client. Indeed, that is why we prefer the term "researcher-subject" privilege: the subject appears in the concept. The term "academic privilege" gives the impression that the privilege is enjoyed by academics, not their subjects.

In Leo’s case, it could easily be argued that "the rights and interests of [Leo's] research subjects" were perhaps best served by Leo's decision to testify, because they (we presume) and Leo (we are told) believed that Leo's observational record supported the police interrogators' account of events. According to this line of reasoning, Leo’s decision to testify would not cause them any loss of reputation, nor stigmatize them in any way, and would be consistent with their preference (we presume) that the confession should be admitted, thereby increasing the likelihood that the suspect would be convicted. Given that the research subject holds the privilege, only the research subject can waive it. But let us stress this point: the subject can waive it. Accordingly, we suggest one thing that Leo might have done in this situation would have been to ask the police interrogators whether they preferred to waive confidentiality and have Leo testify. It is not clear from Leo's article whether he did ask the interrogators that question, but the impression is that he did not, for reasons that are not obvious to us, particularly given that he seems to have been aware of this possibility (Leo, 1995, p.132).

If our analysis above is correct,11 then it makes the Leo case a peculiar one insofar as the question of what is ethically "correct" is muddied, since there is an appearance of conflict in the situation in which he found himself. The immediate interests of Leo's research subjects were presumably best advanced by having Leo testify, but Leo's personal and professional interests in academic privilege appear thwarted by deferring to a court order to disclose. These latter interests in researcher-subject privilege are presumably best served (according to Leo) by refusing to testify, but appeared to be at odds with what his research subjects presumably would have preferred, i.e., an independent observer reaffirming their view of events. As there is no written judgement, we do not know what the Judge thought about this apparent confusion.

Although Professors Jackson and MacCrimmon draw parallels between the Leo and Ogden cases (p.86), Leo’s lacks the ethical clarity of Ogden's situation on the matter most central to Professor Jackson and MacCrimmon's opinion. In Ogden's case, it was very clear that the academic privilege being asserted was for the protection of the research subjects. In Leo’s case, it was not. If we are correct in our analysis, the main lesson to be drawn from the case is that researchers should be very careful about managing conflicts of interest in their research.12

Professors Jackson and MacCrimmon find it significant that the interrogating officers responded quite differently than did Leo to his having testified. They note Leo apologized to the officers in question, but it turned out that they were not at all upset by his decision to testify. Accordingly, Jackson and MacCrimmon question the belief that researchers should necessarily resist any court order for disclosure:

We doubt that Jackson and MacCrimmon are suggesting that all police would agree that researchers should follow the law and break confidences when a court orders them to. And surely they cannot be suggesting that the police would have given Leo access to the interrogation room if he had told them at the start that there was a possibility he might end up testifying in court about anything he saw. We suggest that the apparently enduring good will of the interrogators at the Laconia Police Department was completely attributable to the fact that Leo's testimony coincided with their own view of their behaviour. Had Leo simply asked them to waive privilege, the ethical dilemma he faced would have been resolved! But had this been a situation where the police had threatened the suspect, and/or it was clear they had violated his Miranda rights, and Leo's account had supported the suspect's version of events, we doubt whether they would have been so accepting.

As to any implication in Jackson and MacCrimmon’s opinion that the Leo case suggests that confidentiality is not important to police officers, and hence that confidentiality may be limited a priori, we strongly disagree. We believe Leo's is a good example of the type of research that requires an unlimited guarantee of confidentiality for reliable results, as do Jackson and MacCrimmon. We can only speculate about how a researcher’s presence in a police interrogation room changes "usual" interrogation practices. However, we are convinced that a promise of limited confidentiality would contaminate the field setting, because we can no longer be sure that the subjects will act in a way that they would if the pledge of confidentiality was not limited. A pledge of unlimited confidentiality is essential to research like Leo’s. We suggest it is only the most extraordinary form of heinous discovery (see section III-3 below) that would justify a researcher violating such a pledge.

Leo’s is a classic example of an instance where we would not have begun the research unless we were prepared to give an unlimited guarantee of confidentiality, and were prepared to defy a court order to disclose confidential information. We believe the research mission has enormous social value. Given we would know at the outset that we were putting ourselves in the position of being a material witness, the only way to do valid and reliable research would be to give an unlimited pledge of confidentiality. In this situation, we would be ethically obliged to keep the promise (assuming the subjects did not waive privilege), or not do the research.

As for the willingness of the police to accept limits to confidentiality, we suggest a different reference point than the Leo case. In our university, we have already seen how conflicts over confidentiality in research on police can affect researcher-subject relations. In 1983, the Vancouver Police Union banned research with SFU researchers after a former member of the School of Criminology named several Canadian police officers in a report on police use of deadly force. The particular merits of the police’s complaint and the researcher’s defence aside, the incident highlights the vital role of confidentiality in the criminological research enterprise.

Finally, while Leo (1995) believes that academic researchers should have the equivalent of class privilege, Professors Jackson and MacCrimmon suggest that he undermined his own argument:

We disagree with this analysis and so does Leo. For his part, Leo stated:

We agree with Leo, and would draw Jackson and MacCrimmon's attention to the exceptions that exist to solicitor-client privilege, noting that the existence of those exceptions do not "undercut" its merit. No privilege is absolute, and nor should it be, either philosophically or in practice. As Jackson and MacCrimmon are aware, the chief difference between a class and a case-by-case privilege lies in the onus of proof. For a case-by-case claim, the onus is on the person making the claim to show why the privilege should be granted. In the case of a class privilege, the onus is on the person seeking to cancel it to show why that should be the case.

Professor Jackson and MacCrimmon's reconsideration of the Ogden case is particularly useful for the way in which they use the original court transcripts to breathe life into the Wigmore criteria and show how they can be applied in court. However, two minor aspects of the commentary require some clarification, since both are problematic in our view, and play an important role in the ethics policy advice they give the Task Force.

For the most part, Professor Jackson and MacCrimmon's advice regarding the first Wigmore criterion (that the communications were held by all parties to be confidential) are well advised. However, they misrepresent our position to the extent that they do not acknowledge the way it evolved through our first three submissions to the Task Force.

The issue begins with our critique of the SFU limited confidentiality consent statement imposed on researchers who indicated in their proposals that they were engaging in research in which they might hear about violations of criminal or civil law.13 In light of R. v. Gruenke, the first jurisprudence on privilege we read, Mary Marshall’s legal opinion on Gruenke posted on the Internet;14 and the special volume of Law and Contemporary Problems15 we presented reasons for thinking that the SFU limited confidentiality consent statement represented a waiver of privilege. By warning a subject that a court might order disclosure of the information they provide, we felt this statement made it impossible to satisfy the first criterion of the Wigmore test, which requires that a communication is made in the confidence it will not be disclosed.

From the time of our very first interaction with the SFU Ethics Committee and the VP Research in October 1997, we encouraged them to obtain a properly researched independent legal opinion in light of this problem. They did not. Instead, they persisted in requiring that certain researchers use the limited confidentiality consent statement.

It was not until February 1999 that we obtained any kind of formal legal opinion. It came from Mr. Paul Jones, legal counsel for the Canadian Association of University Teachers, at the request of the SFU Faculty Association. Jones identified four cases as having the most significant bearing on researcher-subject privilege in Canada, including A.M. v. Ryan (1997). The case is pivotal because it deals with a situation where a counsellor and client did anticipate the possibility of court-ordered disclosure. In this case, the lower courts acted exactly as we had predicted, but the Supreme Court took a different tack and concluded: "If the apprehended possibility of disclosure negated privilege, privilege would seldom, if ever, be found" (p. 173). Jones made it clear that as long as one made a declaration along the lines of psychiatrist Parfitt's that she would do "everything possible" to maintain confidentiality, and acted in accordance with that statement, it now appeared the Supreme Court would accept that an "expectation of confidentiality" still existed. As Jones put it: "With this statement the Supreme Court clearly indicates that exposure to the knowledge communications may be subject to disclosure does not negate a subsequent claim for privilege."

In our next submission to the Task Force,16 we acknowledged that a statement anticipating court-ordered disclosure would not necessarily undermine a Wigmore defence. We thus found it odd that Professors Jackson and MacCrimmon (on pp. 106-7 and 134-140) would attribute to us, and feel the need to disagree with, a proposition we already abandoned. We mention this because we are concerned that they did not take up some of our other criticisms of the SFU consent statement,17 not the least of which is our concern that a researcher could treat it as a waiver of privilege18 and so, in turn, could a court.

The Tri-Council Policy Statement obligates researchers to avoid any kind of protocol that requires research subjects to waive their rights. Consequently, we would place more emphasis than did Professors Jackson and MacCrimmon on the need to design research protocols so that statements about limitations of confidentiality cannot be construed as waivers of privilege. Consequently, we would have appreciated some discussion on wording parameters for both researchers and the next REB to consider if they are to avoid creating consent statements that do exactly that. We are concerned that Professors Jackson and MacCrimmon did not give any consideration, either ethical or legal, to the problems that may occur if a court or researcher could interpret any aspect of a research protocol as a waiver of privilege. Our main objection to the SFU limited confidentiality statement still in use to this day is that a researcher who does not want to resist a subpoena can say it represents a waiver of privilege.

We began these reflections by drawing attention to the Tri-Council Policy Statement’s (TCPS) recognition that, "legal and ethical approaches to issues may lead to different conclusions" (p.i.8). In the fourth part of their Opinion ("Formulating a New Ethics Policy"), Professors Jackson and MacCrimmon use the legal categories they have identified as the foundation for a series of recommendations to the SFU Ethics Task Force. In framing this advice, the authors proceed from a series of legal categories to talk about ethics. They offer advice that would be of use both to those researchers who are prepared to have their ethics defined by law, as well as those, like ourselves, whose primary allegiance when the two conflict, is to ethics.

Notwithstanding the thoughtfulness of their advice, and their appreciation that different researchers will choose different paths, it is at this point the limitations of an analysis framed in law becomes most evident. Our strategy is different. In the process of developing an ethics-based approach to research confidentiality, we examine the law to understand how best to maximize the protection of research subjects, as we are ethically obliged to do. But we do not see law as defining the limit to our ethical obligations.

From the commentary to date, it appears that there are two primary situations where social science research and law may conflict: when there is a court order to disclose confidential information, and where mandatory-reporting requirements exist, such as the statutory obligation to report child or elder abuse. We intermingle our discussion of what we believe is the appropriate ethical way of dealing with such situations with some of the Jackson-MacCrimmon Opinion, which, for the most part, outlines the ways law defines the limits of ethical behaviour.

Professors Jackson and MacCrimmon offer very useful advice when they state that "over-generalized" claims about the importance of confidentiality to the research enterprise will not cut muster in court (e.g., p.109). Nonetheless, on a purely ethical basis, we take the provision of confidentiality to be an integral part of the research enterprise. Every code of ethics we have ever seen treats confidentiality as a fundamental principle to be observed. For example,

Professors Jackson and MacCrimmon also make a valid point when they state that not every research subject wants to remain anonymous (e.g., p.126). In reference to Professor Jackson's research in prisons, for example, the authors note that:

Notwithstanding the fact that "many" of his interviewees "have expressed an eagerness to see their names in print," Professor Jackson surely would not be considered "ethical" if he assumed that everyone wanted to see their names in print, and then named them in order to "honour" their voices. Research subjects who want to be recognized usually should be recognized — as long as the naming of these individuals does not violate the confidences of others — but an ethical approach requires it to remain their choice, not the researcher's. We say "usually" because we are aware of prostitutes who went public in the media in the process of defending prostitute rights only to regret the decision subsequently because of the effect the publicity had on themselves and their families. While there may be a fine line between paternalism and protection in this regard, we suggest that researchers proceed cautiously, and discuss with research subjects the possible repercussions when they do want to be named.

The point that confidentiality is not crucial to all research is well taken. But does that negate the viability of researcher-subject privilege, or diminish the high value attached to confidentiality? By comparison, we doubt that confidentiality is crucial to all interactions between lawyers and clients. Although it is obvious that many legal issues can only be discussed in the context of a guarantee of solicitor-client privilege, we doubt whether all issues need to be. For example, both of us have attended legal workshops where practising lawyers made presentations about their legal speciality. In the question-and-answer sessions that invariably follow, audience members — in full public view of strangers — often provided details of their own life situations relevant to wills, business incorporation, landlord-tenant relations, divorce and custody issues and other topics in hope of obtaining advice, which the legal presenters typically give! Also, we would note that lawyers all too frequently have to admonish their clients not to discuss the details of their cases, and only wish that some defendants respected the need for confidentiality as much as lawyers do.

If the non-universality of the need for confidentiality negates the overall claim for privilege would Professors Jackson and MacCrimmon argue that class privilege for solicitors and their clients should be abolished? We doubt it. For many of the same reasons and others outlined at length in our previous submissions to the Task Force, we continue to advocate for the need to establish class or statutory privilege for research subjects.

In sum, we continue to suggest that research subjects should be able to assume that confidentiality will be maintained in any conversation they have with a researcher unless the subject makes it crystal clear that they do not care about confidentiality, or express a preference that they be named.

We believe that criminological field research — such as Russel Ogden's research on assisted suicide and Richard Leo's research on police interrogation — and many other types of research cannot yield valid and reliable results without an unlimited guarantee of confidentiality. Epistemologically, some areas of research require a guarantee of confidentiality as part of the relationship of mutual trust and confidence upon which the research is built. If confidentiality and anonymity are not necessary components of most research, why do most researchers go to such great lengths to anonymize information, or not collect personal identifiers in the first place, even when the information they are gathering is not particularly sensitive or embarrassing? We suggest this is more than superstitious behaviour or thoughtless habit; it is because an integral part of both "good methodology" and "good ethics" involves maintaining the common understanding that research information is to be treated as confidential unless specific arrangements are made to the contrary.

Ethically, we believe that sensitive research of the type we have alluded to throughout these reflections — for example, research involving undetected crime, deviant activities, sensitive topics, policy issues, business practices, family life, collaborative research, long-term field research, many types of feminist research — should not proceed without an unlimited guarantee of confidentiality. Without this guarantee, subjects would be put at risk. Although some current and former members of the SFU ethics committee believed that placing a priori limitations on confidentiality was ethically acceptable as long as one warned research subjects about the risks, we flatly reject this caveat emptor approach. To us it is unethical. It is the researcher's job to manage and anticipate risk, not to fob it off to research subjects, and say, "Too bad, I warned you," when and if a third party intervenes.

The strength of our conviction in this regard should be evident in our earlier submissions to the Task Force. For example, in Going the Distance when reflecting on priest-penitent privilege, we stated:

At one point in their legal opinion, Professors Jackson and MacCrimmon seize upon this statement and note that:

With all due respect to Professors Jackson and MacCrimmon, we would suggest that their foray into assessing whether our understanding of the research enterprise and the ethical obligations that surround it are "theoretically" valid is akin to asking about the appropriateness of a religious person's commitment to his or her God. We made the secular-sacred analogy as a sincere statement of the depth of our commitment to the research enterprise, and wish all researchers felt that way.

Research subjects have an ethical and legal right to informational privacy regarding non-public aspects of their lives, and the Tri-Council Policy Statement obliges researchers to do nothing that would undermine the legal rights of subjects. In particular, we suggest researchers should carefully avoid soliciting any kind of agreement with a subject that a court could interpret as a waiver of privilege, and believe it is unethical for the researcher to knowingly use an informed consent statement that s/he believes is a waiver of privilege.

Notwithstanding the high value we attach to researcher-subject confidentiality, we also recognize in theory that no confidence is absolute. However rare and unlikely, it is theoretically possible that an interview respondent will tell us something so heinous that a higher ethic will take precedence and we would feel ethically obliged to violate our guarantee of confidentiality. We have called such revelations "heinous discovery," and believe it would be ethical to violate a confidence under such circumstances, and only under such circumstances, for reasons that we have outlined at greater length elsewhere.19 The concept of "heinous discovery" is ethical rather than legal. It includes, but is not restricted to, the "public safety exception" to privilege in common law. Also, it includes other serious prospective harms, such as wrongful imprisonment. In order to clarify the difference between a law-based and ethics-based approach in order to clarify our ethical position, it is useful to distinguish between anticipated and unanticipated serious prospective harm.

We begin with the assumption that researchers have a general inkling of what they will hear and/or observe when they undertake any given piece of research. This anticipation will arise from: (a) their experience in this or similar field settings; (b) their knowledge of the relevant literature and its revelations; and/or (c) what they learn from supervisors or colleagues who have been in this or similar situations. For example, in many different kinds of field research in criminology, we know that we will hear about activities that violate the criminal law. Given that we can anticipate hearing about such activities, we believe that researchers should not undertake such research unless they are prepared to hear about violations of the law and keep that information confidential.

At the same time, it is theoretically possible that information about serious prospective harm will simply fall into our laps. For example, when engaged in research with women who prostitute, it is theoretically possible that one of them will start telling us that her last client, who she names, is a terrorist who revealed his plans to detonate a nuclear weapon in Vancouver tomorrow. We could never anticipate such an eventuality. In the case of a revelation of serious prospective harm, which we termed "heinous discovery," we feel it would be ethically appropriate to violate our guarantee of confidentiality and do whatever it takes to save Vancouver.

The most difficult ethical decisions, we would suggest, come with respect to anticipated discovery of serious prospective harm. These are research situations where one can reasonably anticipate hearing about deeds that might be considered heinous, but where one must decide ethical priorities before the event. For example,

1. In Russel Ogden's case, he had to anticipate that he would be hearing about people's involvement in activities that, according to the Criminal Code, comprise murder.
2. A researcher like Richard Leo, who sought to engage in observational research with police interrogators, should anticipate that there would be times when he would witness the civil rights of suspects being violated, and perhaps even witness someone being "roughed up" or otherwise coerced into a confession.
3. A researcher interviewing terrorists should anticipate they might hear about future terrorist activities.

In all of these cases, when the discovery of serious prospective harm can be anticipated, the researcher must decide either: (a) that the research is still worth doing, make a guarantee of unlimited confidentiality, and then stick with it; or (b) not do the research. To proceed with the research with limited confidentiality would be unethical, because it would involve knowingly exposing research subjects to harm.

Russel Ogden’s research is the best example of this principle being put into action. He understood that he would be hearing about "assisted suicides" which, through some people's eyes, comprise murder, and yet he believed that the research was prospectively so valuable that it should be done, and was prepared to live with the ethical burden of hearing such information. He did so, ethically, in our view, because he gave his research subjects an unlimited guarantee of confidentiality and stuck to it.

Richard Leo and his research on police interrogation practices is another matter. From the outset, Leo acknowledged that he might witness activities in a police interrogation room that are unethical and illegal:

In order to do his research ethically, we suggest he should have been prepared to witness that whole range of activity and yet still be prepared to maintain the pledge of confidentiality he made to his research subjects.

It is noteworthy, however, that Leo also makes the following point:

Although there are aspects of this statement we disagree with (see section III-5A below regarding why we cannot imagine ever submitting to a court order), we take his statement to be one that is consistent with our view. In his case, he had to be prepared to witness a range of unpalatable activity, but, in the unlikely event of a "heinous discovery," he believed it would be ethically appropriate to violate that pledge. For example, if members of the Laconia Police Department began torturing suspects in order to obtain confessions, or beat someone into a coma and "framed" another prisoner, we would see this as sufficiently beyond the range of anticipated prospective harm that one might reasonably expect to witness in an average North American Police Department, that it would warrant a researcher violating their pledge of confidentiality.

Alternatively, however, imagine that we came across an opportunity to do comparative research that involved participant observation of police interrogation practices in former dictator Augusto Pinochet's Chile, where torture and other violations of basic human rights were routine. Again, the choice for us would be either to do the research with unlimited guarantees of confidentiality, as that is the only way we could gather reliable information, or not do the research at all. In this case, there is no way we would do the research, as we could not bear the ethical burden.

We have stated above that, in the case of heinous discovery, we believe it is ethically permissible to violate an unlimited guarantee of confidentiality. Although there is jurisprudence concerning how serious the revelation should be to warrant violating a pledge of confidentiality, ultimately we believe that the resolution of the ethical conflict must be left to the individual researcher. In our view, researchers abdicate their ethical responsibility if they leave this decision to the courts.

In part, the decision should be left to the researcher for two reasons:

1. The precise circumstances of the revelation and the understanding of its implications will be known most directly to the researcher, who thereby also is in the best position to make decisions about what to do; and
2. If the researcher chooses inaction, in most situations it is highly unlikely that anyone else will ever know the revelation occurred.

For these two reasons, we believe decisions about how to respond to the revelation of serious prospective harms is primarily an ethical not a legal one. Doing research on any topic requires a researcher to have the ability and willingness to make those decisions.

In this section, we examine the implications of our ethics-based analysis for determining appropriate courses of action in situations where ethics and law conflict, although in our examples we will also allude to situations where the ethics and the law of the situation are the same. As we have already noted, there are two main situations where ethics and law may conflict: (1) a court order to disclose confidential research information; and (2) involvement in research where mandatory reporting laws may apply. We examine the problems created by "heinous discovery" in two situations: (1) hearing of a serious threat to public safety, and (2) learning about a past or prospective wrongful conviction.

 III-5A. A Court Order to Disclose

Difficult questions arise in relation to a court order to disclose, because subpoenas are extremely rare and unpredictable. Even in "the most litigious nation on earth," the US, there are only twenty or so cases on record where confidential research records became the object of court scrutiny out of hundreds of thousands of research projects completed over the past few decades. And yet every once in a while, such as in research like Russel Ogden’s, the risk of subpoena can be anticipated.

We suggest that researchers in different disciplines, given their experience with discipline-based areas of research and with the persons who inhabit field settings, are the best placed to understand their chances of receiving a subpoena. One of the important and overlooked aspects of the Russel Ogden case is that the prospect of receiving a subpoena, and the idea that the most likely source of such a subpoena would be the Coroner's Court, was anticipated by Ogden and his supervisory committee from the very start. Similarly, Richard Leo understood that because his participant observer role would place him in the position of being a potential material witness, he might well receive a subpoena, although, in the end, he was surprised at the particular case in which the subpoena arose.

In Russel Ogden’s research on assisted suicide, SFU’s response to his receiving a subpoena was to assert that researchers are not above the "Law of the Land."20 Although Ogden successfully protected the confidentiality of his sources using the Wigmore test, the university took the position that it was not worth resisting a subpoena, because researchers would be unlikely to win protection of confidential information using common law. According to this "Wigmore won’t work" logic, no claim of research privilege was deemed sufficiently meritorious for the University to support it.

Against this view, we have argued that researchers and Universities are ethically obliged to resist subpoenas. The Tri-Council Policy Statement takes much the same position, as do the various codes of ethics we believe are most relevant to criminological field research (i.e., American Society of Criminology; Canadian Association of Sociology and Anthropology; American Sociological Association; American Anthropological Association), and Professors Jackson and MacCrimmon echo this commitment. Also, we have suggested that the imposition of any doctrine that absolutely subjugates social science ethics to law is an infringement of academic freedom. On those very rare occasions where law and research ethics lead to different conclusions, we believe our professional obligation is to proceed down the ethical path, even if it means disobeying the law. Consequently, we have declared our intention to violate a court order if needs be in order to protect research subjects from harm.

In the process of our discussing these issues, an apparent ethical problem with this declaration came to light. It appears to preclude the possibility of complying with a court order in the event that it is ethically appropriate to do so. How can we categorically state that we would defy a court order when the possibility exists that a court might order us to divulge confidential information in a situation where, according to our own ethics, we have said we would violate a pledge of confidentiality? Jackson and MacCrimmon state the matter thus:

In light of these comments, obviously we need to clarify our reasons for taking this position. Having laid the foundation for this explanation in sections III-3 and III-4 above, the framework of our position is as follows:

• We would not undertake research unless we were prepared to make an unlimited guarantee of confidentiality;
• There are only two times we would be prepared to violate that unlimited guarantee of confidentiality: (1) in the event we came across an unanticipated heinous discovery; and (2) if the research subject indicated s/he wanted to waive privilege and have us testify.
• In the case of heinous discovery, we believe the choice of what to do in the first instant is an ethical, not a legal one. Our commitment to ethics requires us to make the decision at the time of the heinous discovery, not to sit and wait for a court to make our ethical decisions for us. In the extremely unlikely event that a court produced information that made us re-evaluate our ethical decision and decide to violate a confidentiality agreement, we would release the information. In this situation, it would not be necessary for a court to order us to do so. If a court has to go to the length of ordering us to divulge information, it will be because it has not given us an ethical reason to violate a confidentiality agreement.
• In the case of a research subject waiving privilege at the point where we are subpoenaed, then we would likely testify without contesting the subpoena.

In sum, we confidently assert that we would defy a court order because, given how we construct our ethical responsibilities, it is logically impossible for us to arrive at a situation where the court would be in a position of ordering us to make an ethical decision. Professors Jackson and MacCrimmon wonder about the ethics of making such a promise because it amounts to having a closed mind about what the court might have to say (p.176). However, we cannot imagine a situation in which the court might suddenly cause us to change our minds and reverse our ethical stance. We would also note that we now have examined every reported case in North America, and we have yet to see a case where we would comply with a court order to divulge the identity of research participants or release confidential information pertaining to them.21

Having outlined this view, we can state that the aspect of the Richard Leo case we found most disconcerting was his apparent inconsistency. For us, Leo erred by not determining the proper ethical course of action at the point the subpoena was received, and then stay that ethical course. Upon receiving a subpoena, our first action would have been to ask the officers who conducted the interrogation, whose names were already known to the court, whether they wished to waive privilege. If they wanted to waive privilege in this situation, as is their right, we would have testified. If they did not want to waive it, we would have refused to testify, because we would not have undertaken the research in the first place without promising that anything that happened in the interrogation room was confidential. The situation that Leo describes being faced with does not begin to approach what we mean by "heinous discovery."

 III-5B. Mandatory Reporting Laws

Apparently, we did not do a very good job of describing the ethical obligations of researchers when mandatory reporting laws apply, as Professors Jackson and MacCrimmon clearly misunderstood, and hence have misrepresented, our position in this regard. Consequently, we clarify it here.

The misunderstanding no doubt arose because our discussion of the mandatory reporting situation did not articulate a position on mandatory reporting per se. Rather, it was designed to problematize aspects of the SFU ethics committee's decision-making regarding its imposition of limited confidentiality. In particular, we did not understand why the URERC chose to single out criminological field research for its formulaic imposition of its limited confidentiality consent statement. We pointed out that situations faced by other disciplines — including the mandatory reporting situations routinely encountered by researchers in education and child psychology, for example — were not singled out for this attention even though they raised parallel if not more problematic ethics issues. Accordingly, much of what we wrote about mandatory reporting situations — especially in The History of Limited Confidentiality at SFU — involved turning the committee's logic regarding the limitation of confidentiality back onto itself. We now see Professors Jackson and MacCrimmon quoting our adaptation of the URERC's position as if it was our own. We disagree with the position Jackson and MacCrimmon espouse to the extent that it involves an a priori limitation of confidentiality.

We view information about child and elder abuse, the activities covered by mandatory reporting laws, as being similar to public safety issues, and treat them as a species of heinous discovery. If we were conducting research and did not anticipate hearing about child or elder abuse, but had a case drop in our laps, we would be faced with the same ethical dilemma as we would in other situations of heinous discovery. Does the prospective harm associated with the abuse warrant violating a pledge of confidentiality? If in our judgement it does, we would violate that pledge.

However, our position with regard to anticipated disclosure of child or elder abuse is subject to the same considerations as situations where the researcher can anticipate receiving information about serious prospective harm. For example, if one were going to conduct research into practices of care in Seniors' Housing Facilities, one should anticipate the possibility that practices will be observed that some people might consider negligent or abusive. Any a priori limitation of confidentiality would compromise the validity and reliability of that research, and be unethical to the extent it would expose participants to risk. At the same time, it creates an ethical paradox by ensuring that those care facilities that engaged in the most questionable practices would be unlikely to participate in the research, thereby contributing to the invalid finding that elder care facilities do not engage in such practices! To the extent that completely heinous practices exist, they, too, would never be found.

An unlimited pledge of confidentiality in certain types of research is essential to generating reliable and valid information. Nonetheless, mandatory reporting laws create a different problem for researchers. In the case of court-ordered disclosure, the researcher is in something of a legal void and, if subpoenaed, the courts effectively make the law after-the-fact. With mandatory reporting, the researcher knows the law ahead of time. Consequently, we suggest that, in the case of research where one can anticipate receiving information that is subject to mandatory reporting laws, researchers first should attempt to seek exemptions, along the lines of the "privacy certificates" available to US researchers, prior to conducting the research. Without this exemption, we suggest that the ethical choice is doing the research with an unlimited guarantee of confidentiality, or not doing it at all.

 III-5C. The Public Safety Exception in Common Law

In common law, the public safety exception applies to all privileges. In Smith v. Jones the Supreme Court held that communications protected by a class privilege, such as solicitor-client privilege, may be disclosed to protect public safety. The Court left open the question as to whether there is a legal duty to disclose information when a public safety concern arises.22 Because citizens are not required by statute to report serious prospective harms, researchers making heinous discoveries will likely be confronted by an ethical, not a legal decision.23 The decision as to whether to violate a pledge of confidentiality will probably have to be made independently of any court process or statute, and the researcher will have to live with the consequences.

We would have no problem violating a pledge of confidentiality in order to satisfy a superior ethical obligation, such as preventing serious prospective harm, in situations where we did not anticipate the discovery. However, at the risk of belabouring this point, we say again, in research where we could reasonably anticipate the discovery of prospective harm, we doubt it would yield reliable information if we limited confidentiality at the outset. Imagine saying to a terrorist, drug dealer or gang member:

We do not believe that criminological research would be worth doing under these conditions because we could not trust the results, and believe such an approach is unethical in any event. Researchers are thus faced with a choice: if the research is likely to produce information about serious prospective harm or harm that has already occurred, the researcher should make a pledge of unlimited confidentiality and be prepared to stick to it, or do some other kind of research. In other words, doing research with would-be nuclear terrorists will mean making a pledge of unlimited confidentiality with the full intention of upholding it. If the ethical conflict creates too much of a personal burden, then we believe the ethical choice is to not do the research. Our personal decision in this regard is straightforward: we do not anticipate conducting research with would-be nuclear terrorists.

To make this ethical point clear, let’s take as an example research that probably is not practicable but, in theory at least, is possible: a case study of persons who committed crimes for which an innocent person has been convicted and sentenced to life in prison. Professor Jackson and MacCrimmon's commentary on privilege suggests that an accused person’s right to a fair trial would likely outweigh a researcher’s claim to privilege. Nevertheless, we cannot imagine the subject of this research divulging the information we want without an assurance that it would not be passed on to the authorities, a court order notwithstanding. In this instance, ethical considerations would clearly be at odds with the law. Nonetheless, from an ethical perspective, if the information was gained only by virtue of a promise of confidentiality, that promise should be honoured.

As far as the public safety exception is concerned, we accept the general guidelines outlined by the Supreme Court in Smith v. Jones,24 i.e., that before violating a pledge of confidentiality, the danger to public safety must be imminent, serious, and with a clear target in mind. Notwithstanding this apparent region of agreement between the law and ethics, there are other ways we see Smith v. Jones as a telling hypothetical example of the problems that would arise for any researcher who prioritized law over ethics.

Let us review the facts briefly. Michael Leopold was charged with sexual assault against a prostitute, went to see a lawyer, and intended to plead guilty to the offence. His lawyer referred him to Dr. Roy O’Shaughnessy for psychiatric examination, in the hope that this assessment would be beneficial to his client at sentencing. Because Leopold's lawyer instigated the examination, the communications between Dr. O'Shaughnessy and Leopold were protected by solicitor-client privilege. During their interactions, Leopold told O'Shaughnessy that his assault of the prostitute was actually a "trial run" for his plans to abduct prostitutes from Vancouver's Downtown Eastside, hold them captive at his home, sexually assault and then kill them. The murder would be achieved in a manner that would make the women less identifiable (by blowing their faces off) before he disposed of their bodies.

Given the chilling detail of Leopold's descriptions and the fact that he had already acted out part of his plan by turning his home’s basement into a cell, O'Shaughnessy was convinced the threat to the women was real. Consequently, he wanted to reveal this information to the Court during Leopold’s sentencing. When the lawyer did not reveal these confidences, presumably because they would be prejudicial to his client, O'Shaughnessy applied to the court for permission to violate lawyer-client privilege in order to help protect prostitutes on the Downtown Eastside. Eighteen months later, after the initial trial and two appeal court hearings, with Leopold in and out of jail at various times during that period, the Supreme Court gave its permission to O'Shaughnessy to violate the confidence. A short time later, Michael Leopold's name was on the front page of the Vancouver Sun with all the details of the case revealed.

Smith v. Jones fascinated us for many reasons, not the least of which was because it was very close to home. The case happens to be an area (prostitution, violence against prostitutes) in which Lowman has done research, and is related to a project in which the two of us are currently engaged. The case even happened in Vancouver — our home city — and involved prostitution strolls with women who Lowman has met and interviewed in the course of his research. Although we have never knowingly interviewed someone like Michael Leopold, it is conceivable that we could have in a recent study of men who buy sex. Accordingly, the question of what we would do if we realized we were interviewing a Michael Leopold is a meaningful one, and provides an opportunity to compare ethical and legal approaches in the context of research.

In the project on men who buy sex, we asked questions about respondents’ experiences with prostitutes, their attitudes about the women who prostitute and women more generally. For reasons we have outlined above, we would not undertake such research without an unlimited guarantee of confidentiality. If Leopold had contacted us and started telling us what he told he Dr. O'Shaughnessy, however, we would see this as an instance of heinous discovery. Our ethical responsibility would be to take steps to ensure that the lives of the women who prostitute on the Downtown Eastside were protected from Mr. Leopold, because the saving of their lives has a higher ethical value than the already high value we place on maintaining research confidentiality.

At the same time, it is still the case that Mr. Leopold is our research subject, and hence we still have ethical obligations to him; the fact that he has triggered a "heinous discovery" does not give us license to merely throw him to the wolves. We do not know what precisely we would do at that point; it would depend on many factors such as whether the interview was in person or over the phone, what information we could get from him regarding any psychiatric care he might be under, and so forth. Nonetheless, our objective would be to do our utmost to ensure the safety of the women, and to do so in a manner that involved an approach of care to Mr. Leopold. For example, our first inclination would be to connect Mr. Leopold with mental health authorities rather than the police, although we would be prepared to do the latter if no other options were available.

When the Supreme Court ultimately did decide the matter, they chose a resolution that we think is ethically problematic. Our ethical position is more in keeping with the minority opinion of Chief Justice Lamer, and Justices Major and Binnie, who agreed that Dr. O'Shaughnessy could violate the privilege but argued that the disclosure should be done in a way that minimized the extent to which the confidence was violated.

The majority of the court went further than that, and the result was a public spectacle that saw sufficient detail presented in the newspapers to prejudice Mr. Leopold's right to a fair trial (assuming he was allowed to withdraw the guilty plea he made prior to the Supreme Court’s decision to allow O’Shaughnessy to violate the confidence). The irony of the publicity surrounding the case is that it may eventually endanger, not enhance public safety, for, as Justice Major pointed out in the minority decision:

And finally, we come to the most important aspect of this case — a point on which Professors Jackson and MacCrimmon are silent — even though in our previous writing, it serves as one of the cornerstones of our ethical position. If Dr. O’Shaughnessy had told Leopold that confidentiality was limited, Leopold probably would never have divulged his plans to kill prostitutes. The result: there is a much greater likelihood that, at some point in the future, he would be able to carry out his plans. How can one consider the outcome "ethical?"

The puzzle of what to do in response to heinous discovery is one of the deepest of ethical questions. Because we have strong feelings about the ethical resolution to such dilemmas, we end this section with what to us are two fundamental propositions:

1. Any a priori limitation of confidentiality will likely ensure that heinous discovery will not occur; and
2. The choice of what to do about heinous discovery is a personal ethical decision that no Research Ethics Board should be empowered to impose on a researcher.

In the US and Canada, Professors Jackson and MacCrimmon suggest that an accused person’s constitutional right to a fair trial is likely to supersede all other considerations, including the importance of confidentiality to the research enterprise. For this reason, although Jackson and MacCrimmon believe that an appellate court would have upheld the Coroner’s decision regarding Russel Ogden’s testimony, they suggest (p. 115) that if an accused person’s right to a fair trial had been at stake, the court would have ordered disclosure.

From an ethical point of view, we regard the unanticipated revelation of wrongful conviction as a form of heinous discovery. If such a revelation occurs, researchers should weigh the harm caused by a wrongful conviction against the harm that violating a pledge of confidentiality would do to the research enterprise when deciding whether to violate that pledge.

As was the case with the public safety exception discussed above, ethical researchers, in our view, will not wait for a court to make this decision for them. Indeed, we cannot see how the courts could create this dilemma for us, and cannot find an example where it has happened. We would know if relevant information was at our disposal, and would likely be faced with the dilemma about what to do long before the facts of the case ever came to a court’s attention, if indeed it ever did at all. This is why in our research on prostitution we were prepared to declare that we would not comply with a court order to disclose the identity of our research subjects. When it comes to the dilemma that occurs when prospective serious harms compromise confidentiality, researchers cannot divest their ethical obligations to the courts. When it comes to heinous discovery, a court order would not be needed, as we would already have disclosed the information. Similarly, if we decided on ethical grounds not to divulge the information, we cannot imagine anything a judge could say or do at that point, including a court order, that would make us divulge it.

In sum, we cannot see a situation where a court would have to order us to take the ethical course of action. The whole point about an ethics-based approach is that we have to make these difficult decisions ourselves.

Professors Jackson and MacCrimmon conclude their legal opinion by articulating what they believe its implications are for the new ethics policy currently being contemplated for SFU. It is also in this section that they allude most frequently to our earlier submissions to the Task Force, sometimes in complimentary fashion, other times using our work as a vehicle for the articulation of their own position. It is unfortunate that so much of this final portion relies on their:

1. Reaction to the arguments against the current URERC's limited confidentiality consent statement that we presented in The History of Limited Confidentiality at SFU, which we later revised (in Going the Distance) to take into account the Ryan case after it was drawn to our attention in the legal opinion completed by Mr. Paul Jones of CAUT (discussed in Section II-2B above);
2. Apparent misunderstanding of why our ethical approach makes it a logical impossibility for us to do anything but refuse to comply with a court order for disclosure in the event that matters proceeded that far (discussed in Section III-5A above); and
3. Apparent misunderstanding of our position regarding research that encounters mandatory reporting laws (discussed in Section III-5B above).

Because of the confusion, we think there are times Professor Jackson and MacCrimmon’s legal opinion places us needlessly at cross purposes with them, although we should also emphasize that they have been very gracious in allowing for the ethics of our position which, for the most part, they get right. Indeed, most of what they say provides further support for recommendations we offered in our earlier submissions to the Task Force. On other occasions, the recommendations they make are clearly at odds with our own. Our intention in this final section is to make a tour of the final portion of their legal opinion that deals with ethics policy without needlessly repeating those aspects of our position already discussed above.

The sentence in the Jackson-MacCrimmon Opinion that sounded one of the loudest warning bells to us was their opinion that:

We agree that an REB should be mindful of liability issues as they relate to protecting research subjects. But we strongly disagree with any suggestion that REBs should police ethics applications with an eye to protecting researchers and the university from research subjects, which is precisely what we have seen at SFU, where the ethics policy has been used to manipulate a very different kind of liability. What worries us about the Jackson and MacCrimmon statement is it does not recognise that the interests of universities and researchers in protecting themselves from liability may conflict with those of research subjects.

This conflict is exemplified by the formulaic requirement we have seen from the current Simon Fraser URERC that researchers require research subjects to sign a consent statement. The Research Ethics Officer has held up research when researchers refuse to require that subjects sign an informed consent statement as a condition of participating in the research. We believe that liability considerations are driving this requirement so that, again, the SFU research ethics bureaucracy has undermined the rights of research subjects.

When the signing of a consent statement is made a condition of participation in research, we wonder who benefits. The fact the researcher generally keeps the signed record suggests that it is the researcher who is protected by it, not the subject. Indeed, one of the primary reasons given by SFU's Research Ethics Officer for forcing subjects to sign consent statements is that doing so protects researchers (and, by extension, the university). There is a conflict of interest here. Researchers and the university want to ensure they have a record of the subject's consent in order to protect themselves from those subjects. However, the existence and retention of such records may compromise the researcher’s ability to maintain the confidentiality of records (a subject right) in the event that the researcher is subpoenaed. Such legalisms also may undermine a research relationship built on mutual trust and respect that exists or is sought, particularly by field researchers.

We suggest an approach that protects the rights of subjects would presume that most consent statements should not be written and signed, or, if they are, that it is the researcher who should sign the form, and leave it in the possession of the research subject. Records of informed consent acceptance should be made only when it is in the research subject's interest to do so, and/or when the relation between researcher and subject is a more clearly legalistic and perhaps adversarial one. Signed consent statements should not be used when it would compromise subjects' rights, such as the right to confidentiality and/or anonymity. Consequently, we recommend that the new Ethics Policy explicitly state that the decision as to whether to use a signed consent statement should be left in the hands of the researcher and research subject, not imposed by a Research Ethics Officer or REB.

Professors Jackson and MacCrimmon acknowledge that the university's original response to the Russel Ogden situation was governed by liability considerations (pp.138-139). However, we worry that their unqualified assertion that "… it is appropriate, and indeed necessary, in formulating an ethics policy to be concerned about liability issues," can be misinterpreted as a fiscal carte blanche that will only create more Russel Ogden situations instead of maintaining the highest ethical standards. This, coupled with the draft policy's assertion that the purpose of the policy is to protect "the interests of research subjects, researchers, and the University," is, in our minds, a recipe for ethics disaster. Accordingly, we recommend that Professors Jackson and MacCrimmon clarify what they mean in that statement by articulating its ethical basis, and also that the Task Force delete its reference to protecting "researchers and the university" from the Draft ethics policy. The primary purpose of an ethics policy is to protect research subjects, not undermine their rights.

 Professors Jackson and MacCrimmon articulate a view consistent with our own when they state, "Whether ethics would require civil disobedience to the law depends on the facts and context of the particular case" (p.178). But they seem to misunderstand our position regarding civil disobedience when they say,

Understanding our assertions may benefit from some explanation of the context in which they were raised. SFU’s original reaction to conflicts between ethics and law was that "researchers are not above the law of the land." For example, in his article entitled "The Law of the Land," which appeared in Simon Fraser News on 30 October 1997, Dr. Clayman (the VP-Research) stated:

More recently, when former VP-Academic David Gagan considered our appeal of the URERC's rejection of our application for ethics approval, he ordered the URERC to construct an informed consent statement for us that met a number of specified criteria. Included amongst the criteria was a statement that, "in all circumstances including third party intervention," it must be clear that:

We cannot agree with this position because of its a priori and absolute subjugation of ethics to law; this doctrine subverts academic freedom. The point of talking about the history of civil disobedience in Going the Distance was to show that a principled stand against a particular law is designed to problematize that law, and that law only. It is not an assault on the rule of law. The literature on civil disobedience says that in order to make this point, one must disobey publicly and willingly go to prison without complaining (unless the degree of punishment is unreasonably harsh). The purpose of this public display is to show that the act of disobedience relates to one law in particular, and is not an act showing disrespect for law in general. Willing submission to punishment is the price of civil disobedience, and a way of showing respect for law.26

As to Professor Jackson and MacCrimmon's comments about the sacred versus the secular obligation to disobey, they cannot take away from us what we feel: i.e. our valuation of research and research confidentiality is every bit as principled as the priest’s valuation of the confidence necessary for the confessional. It is a pity not all researchers feel like this, and that some would even question our position. As long as they do this, the chances are that members of the Supreme Court will treat priests and researchers quite differently, when in fact we sincerely believe they should be seen as two kinds of people with equally deeply felt convictions.

With respect to the ethical and legal commitments that researchers and universities should be prepared to make to research participants, Professors Jackson and MacCrimmon state that:

The Task Force has indeed followed this recommendation in its draft policy. In a section that articulates the university's commitment to challenging third party efforts to bring about a court order to disclose, the draft policy states that:

Even more recently, in a Simon Fraser News article that described the ethics draft policy provisions in this regard, Dr. Clayman, the VP-Research seems to support this view by quoting it almost verbatim. However, it reminded us of his views, held also by some members of the ethics committee when we began our debate with them on these issues, that no case involving researchers is meritorious because they will never win using Wigmore. If he/they still hold that view, we worry that the Task Force, acting on Professor Jackson and MacCrimmon's advice, may have created what is essentially an empty promise. In other words, only in meritorious cases will the University appeal a court order to disclose confidential research information, the only problem being that there are no meritorious cases! The fact the draft policy does not specify who is to make the evaluation of merit — a task that, because of the financial commitments involved, might conceivably fall to the VP-Research — makes the statement particularly worrisome.

We suggest that Professors Jackson and MacCrimmon need to clarify what they mean by a "meritorious case," as does the Task Force in its draft ethics policy. We further suggest the explanation of "merit" should be expressed in terms of the short and long term benefits to subjects. Also, given that the research relationship being defended will have received university ethics approval, we suggest that the best assumption to make is that any case is meritorious as long as the researcher abided by the approved research protocol.27 Accordingly, we suggest that a case should be supported unless it can be established that it is not meritorious according to pre-defined ethical criteria. The new ethics policy also should include a clear statement about who decides whether a case is not meritorious, and the process to be followed in making that decision.

 Professors Jackson and MacCrimmon problematize the formula used by the SFU ethics committee to determine application of its limited confidentiality consent statement. In light of increasing use of litigation in Canada, and because of an on-going "judicialization of society," Jackson and MacCrimmon suggest, "it is reasonable to conclude that across the full spectrum of research activities there is a [material] risk that research may become the subject of legal proceedings" (p.147).

Several times we have asked the SFU Ethics Committee whether the Tri-Council’s minimal risk and consent alteration provisions mean that researchers interviewing people about criminal activity are involved in minimal risk research.28 Also, we asked SSHRC for an opinion. They referred the query to NSERC, who said that while our argument may make sense, REBs should decide the boundaries of "minimal risk."29

We are troubled that both the SFU Research Ethics Task Force and Professors Jackson and MacCrimmon alter the Tri-Council’s definition of "minimal risk" and then proceed as if they have the right to tell other researchers to do it their way.

The Tri-Council Policy Statement says that in cases of minimal risk, the degree of REB intervention should be minimal. "Minimal risk" is to be defined from the perspective of research subjects:

Is the risk of court-ordered disclosure great enough to warrant more than minimal intervention by the REB? Unfortunately, since neither the Tri-Council nor the Task Force seems to have solicited the views of any subject populations in this regard, we are no further along in knowing what the "perspective of research subjects" is on this issue.

The Jackson-MacCrimmon Opinion similarly leaves us no closer to answering this question. Professors Jackson and MacCrimmon observe that the law, which has developed mainly in response to medical interventions, hinges upon the concept of "material risk:"

Jackson and MacCrimmon consider court-ordered disclosure to be a material risk, and conclude:

We wonder, though, how their analysis of material risk relates to the application of the criterion of minimal risk to ethics applications. Minimal and material risk are not the same thing. One might have a situation where there is a material risk, but this risk does not meet the criterion of minimal risk articulated by the Tri-Council.

In contrast to these various definitions, the Task Force opts for a variant of Professor Jackson and MacCrimmon's "material risk" which they then call "minimal risk:" The Draft Policy definition is as follows:

If this definition were to be used consistently, we find it hard to imagine any research that would be "minimal risk," given that almost all university research involves some level of unknown. The Draft Policy's taking of "minimal risk" to mean "any risk" may thwart or impede ethical research and academic freedom on the basis of a fear of risk that is not consistent with the more balanced definition in the Tri-Council Policy Statement.

None of the three definitions above is inherently "right" or "wrong," so why should an REB be empowered to impose one view over others? What measure should we use to ascertain which projects generate risks sufficient to be regarded as greater than minimal risk, thereby warranting more than expedited ethics review?

For Professors Jackson and MacCrimmon, "The question that must be asked of any research project is whether the possibility of court-ordered disclosure is a material risk in the sense of one that a reasonable person in a subject’s position would want to know." However, when it talks about minimal risk and expedited ethics review, the Tri-Council poses a different question. The issue here is how much an REB should intervene in research when the risk is minuscule. Should an REB be empowered to hold up research indefinitely over a risk that is so small that it has never actually materialized in Canada? We think not, and that such intervention is just one more form of unacceptable ethics imperialism.

Furthermore, given the wide range of disciplines in the US that have become embroiled in high stakes litigation, the problem with ascertaining material risk is that it is very difficult to predict what information might become the object of a court’s interest. Would it have been possible for Mario Brujaha, who was studying the "sociology of the American restaurant," to predict that his field notes would become the subject of a courtroom controversy?

It appears that the primary reason Professors Jackson and MacCrimmon and the Task Force entered the "minimal risk" discourse with respect to confidentiality is because confidentiality is not absolute. However, we believe the fact that it is not absolute does not provide an adequate reason for limiting it a priori. The prospect of court-ordered disclosure is only a "material risk," to borrow Professor Jackson and MacCrimmon's term, for researchers who would consider bowing to a court order in the absence of heinous discovery, which we would not. It is partly for this reason that we believe our research falls into the category of "minimal risk" as defined in the Tri-Council Policy Statement.

We do not accept Professor Jackson and MacCrimmon's claim that our interpretation of the Tri-Council's consent alteration provisions are not "consistent with the ethical spirit of the Tri-Council Policy Statement" (p.156) because it does not fit within any of the scenarios depicted in that section of the Policy Statement. The purpose of the Policy Statement is to offer generic principles and procedures that should apply to all research. Just like us, they cannot foresee all the possibilities. Indeed, if our interpretation were so at odds with the Tri-Council's intent, we suggest they would have said something to that effect when we made our inquiries to SSHRC and NSERC. The fact they did not reject it out of hand, but referred the question of minimal risk back to the REB for consideration, suggests our interpretation had some merit.

We believe that according to the Tri-Council’s concept of proportionate review, its definition of minimal risk and its consent alteration provisions, REBs should be careful not to use anything more than minimal intervention in minimal risk research protocols. When there is less than minimal risk to subjects, which we believe will be the case in most research in criminology, for example,30 researchers should be left to decide whether to mention the risk of a court order to disclose. If they do not mention it, they should violate confidentiality only because of heinous discovery, as per the ethical framework laid out above. If they do mention it, they should also inform subjects what they intend to do should a court order them to divulge confidential information. We say this because we fear that some researchers might interpret a warning about court-ordered disclosure as a waiver of privilege.

 Notwithstanding Professor Jackson and MacCrimmon's principled recognition that, "On the ethical issues, as lawyers and law professors, we have no monopoly to pass definitive judgements" (p.187), they sometimes do not distinguish between legal and ethical advice. A case in point is in regard to the public safety exception, where Professors Jackson and MacCrimmon say:

We disagree strongly with this advice because of the ethical conundrum it fails to address, which is also one of our core ethical objections to limited confidentiality. If one says to a potential would-be nuclear terrorist, "please don’t tell me that you intend to detonate a bomb, as I’ll have to report it," the likely consequence is that the information would be withheld, with the result that thousands of people would die. How is this "ethical?"

An example of this conundrum recently played out in Smith v. Jones, as we described above [in Section III-5C(i)]. What would have happened if Dr. O’Shaughnessy, the consulting psychiatrist, had prefaced his conversation with a limited confidentiality statement? Under a regime of limited confidentiality, surely Leopold would have withheld his plans to murder prostitutes, in which case he may have been released after serving his sentence, at which point he might have proceeded with those plans. According to Crown Council Colin Sweeney, Leopold "gambled that the information would not come into the hands of the Crown or the police based on the belief that some solicitor-client privilege would keep it under wraps."31

Because of the ethical conundrum created by limited confidentiality, for the sake of the potential victims of heinous acts, we see ethical reasons not to limit confidentiality in advance. Given that there is no clear ethical solution to the conundrum created by limited confidentiality, should an REB or Research Ethics Officers be empowered to insist that researchers take one particular course of action, a course that might, from the researcher’s point of view, be unethical? Our answer is an unequivocal, "No." Professors Jackson and MacCrimmon are silent on this issue.

 While there would no doubt be wide consensus about the importance of researchers obtaining informed consent and respecting the rights of research subjects, a host of ethical questions do not have clear "right" or "wrong" answers. In these situations, the role of a Research Ethics Board should be to ensure that researchers understand the ethical issues at stake so that they can make an informed decision. However, our experience is that the SFU ethics committee and Research Ethics Officer used their power to impose their own answers and prohibit alternative equally acceptable approaches when they saw fit. Our eighteen-month battle with the URERC suggests that some mechanism should be put in place to prevent Research Ethics Boards and Research Ethics Officers from abusing their power by imposing their ethics on researchers in cases where, in fact, there are several legitimate ethical courses of action.

Any thoughtful piece of research will likely raise more questions than it answers and Jackson and MacCrimmon’s Legal Opinion is no exception. In this final section, we raise a set of issues that, to us, remain unresolved by the Jackson-MacCrimmon Opinion, particularly as to how they might affect the writing of a new ethics policy.

 We noted at the beginning of these reflections that there are two classes of response on those rare occasions when ethics and law conflict, i.e., (a) one in which ethics is ultimately circumscribed by law; and (b) and one where ethics may over-rule law. Jackson and MacCrimmon’s Opinion is relevant to both perspectives. However, we are concerned that some observers will take their ethical opinion not as advice, but as prescription. Consequently, in our concluding section, we outline some of the issues that arose for us when we read the Jackson-MacCrimmon Legal Opinion.

As Professors Jackson and MacCrimmon acknowledge on several occasions, incorporating protections in the design and execution of one's research protocol is a first line of defense for the protection of research confidentiality. We have in mind here such procedures as not taking the names of participants or other identifying information unless necessary; and anonymizing information at the earliest possible opportunity.

Unfortunately, the Jackson-MacCrimmon legal opinion does not offer any suggestions as to how researchers might reduce the probative value of research records (i.e., make their data less "interesting" to the courts), without compromising methodological validity. We might speculate, however, that interview data will be less "interesting" to the courts than observational data, and anonymized data will be less interesting than data in which names are left intact.

The "legal parameters" we have in mind here include such factors as mandatory reporting laws, and/or situations outlined by Professors Jackson and MacCrimmon that make a claim of privilege more or less likely to be successful. For law-allegiant researchers, knowing the law is fundamental to knowing how to forewarn prospective research subjects about the risks they undertake if they participate in research. These parameters are less problematic for ethics-allegiant researchers, since the vagaries of law will not change the way they respond to their ethical obligations. For these researchers, knowing the relevant law clarifies the ethical choices one confronts. For example, ethics-allegiant researchers should approach mandatory reporting situations, where the law is known ahead of time, in a slightly different way than court ordered disclosure, where the law is effectively constructed after the fact.

This is relevant to both sets of researchers, since both have the obligation to work within the law wherever possible, and both are obliged to use every legal means available to protect the rights of research participants. Understanding the Wigmore criteria, for example, and attempting to design research in anticipation of a Wigmore defense is essential to minimize the chances of court-ordered disclosure. Similarly, attempting to acquire the equivalent of US "privacy certificates" would seem a necessary first step in preventing legal difficulties that might arise in research that encounters mandatory reporting situations.

Highest on the list for us is avoiding consent statements or agreements that could in any way be construed as a waiver of privilege — an issue to which we wish the Jackson-MacCrimmon legal opinion would have devoted some attention.

A crucial element of the Jackson-MacCrimmon legal opinion is its attempt to envision the requirements of both ethics- and law-allegiant perspectives. We suggest that one clear implication of the Jackson-MacCrimmon legal opinion is the desideratum that SFU's new ethics policy embodies similar tolerance, and does not inadvertently create a structure that impedes either perspective. This can be achieved by creating an ethics policy that explicitly recognizes that often there is more than one "ethically proper" way of proceeding. The university's commitment to academic freedom requires that no REB should have the right to impose one of a range of ethical solutions on a given researcher.

 One limitation to the Jackson-MacCrimmon position is that, although they are careful to mention ways that qualitative field research is different from more structured, quantitative modes of inquiry, their legal analysis and ethical advice create a tension that is never fully resolved. The advice they offer generally takes for granted the traditional model of ethics review.

Of course, Professors Jackson and MacCrimmon are not alone in this respect. The starting point for the Tri-Council and the Task Force was also an acceptance of what has now become the "traditional" REB model -– the "Ethics Cop" model of doing business. Researchers propose a piece of research in which they anticipate the ethical issues involved, and the job of the REB is to determine whether the inventory is complete, and the ethical solutions proposed are consistent with policy. Research ethics in field settings are far less predictable than this.

 V-2A. The "Ethics Cop" Model is Best Suited to Highly Structured and Predictable Research

This model has been developed for, and is ideally suited to, the kinds of structured, standardized, programmatic inquiry that characterizes more quantitative forms of research. In this model there is usually a single procedure developed ahead of time that is administered again and again to a succession of research subjects. Indeed, many research texts speak of the need to ensure that the procedure is as identical as possible across subjects — through such techniques as automating procedures, use of standardized instruments, and by using tape recorded instructions, etc. — in order to minimize the background error variation against which the statistical significance of independent variables is tested. Researchers who engage in such research can specify their procedures in advance and because of the structured, repetitive nature of the interaction they have with research subjects, can predict with reasonable accuracy "what will happen" in the research context.32 This is the current model of ethics review at Simon Fraser University: "What is your question? What will happen? How have you ensured that you have protected the rights of research subjects?" Our greatest dismay with the final section of the Jackson-MacCrimmon opinion is that it implicitly accepts this model as the appropriate one for ethics review.

 V-2B. Qualitative Research is Neither Highly Structured Nor Totally Predictable

Qualitative field research sometimes shares some of the characteristics listed above — where essentially the same questions are asked across a sample of respondents, for example, or where a structured observational protocol is used time and again across time and/or settings — but just as often it does not. Sometimes the researcher begins by "hanging around" a public setting and talking with subjects in order to determine what the most appropriate questions are to ask, or how best to ask them, or even whom to approach. Other times the research itself emerges from a collaborative process that involves both the researcher and subjects in the setting. Very often, researchers spend significant portions, and sometimes all of their careers engaged in a particular milieu. Lowman's research regarding prostitution in Vancouver, for example, has been going on now for more than twenty years, as has Professor Jackson's research in prisons, while Palys has now been involved in research regarding Aboriginal issues for more than a decade. What we (Palys and Lowman) believe characterizes this kind of research is its foundation in a personal trust that goes beyond anything one can say in an informed consent statement. It is based on a credibility and integrity that our research subjects have come to associate with us because of having seen us in action for so long.

Our core objection to the way that Professors Jackson and MacCrimmon write about a prospective ethics policy is the same as our objection to the way the SFU URERC has recently interpreted its mission. Ethics review is conceived in a way that attempts to transform the personal relationship that propels our research into an institutional relationship that undermines it. Research "subjects" in field settings do not participate in our research solely or even mainly because we have used appropriate words in an informed consent statement. It is more likely that participation occurs because we have enough history with one another, or with people we both know, that they feel they can trust us to protect their rights.

We wonder when Professor Jackson goes to interview prisoners whether he puts an informed consent statement in front of them to sign, or whether he tells them to go talk to "Joey the Knife," who will tell them that he is "solid" and is a friend concerned about prisoner's rights. Indeed, we suspect that if Professor Jackson put an informed consent statement in front of them and asked them to sign it as a condition of talking to him, they would turn around and walk the other way. The consent form would likely signify to them that the relationship we seek is a solely institutional one (i.e., as employees of a university), rather than a personal one (i.e., as researchers who care about them and what they have to say). Just as the Inuit translation of the word "lawyer" is, "the person who lies for you," many of our subjects do not see legalistic documents such as informed consent statements as a protection of their rights so much as a document that limits our obligations to them.

Although to some extent this is a reflection of the kinds of relationships that field settings involve, we would also suggest that the personal-institutional dichotomy has been exacerbated by SFU's unethical decision in 1994 to abandon Russel Ogden, and the protracted process that was required to make that situation right. Reputations die hard; how many people still think "hot bed of radicalism" when they think of SFU, even though that reputation was borne from the protests of the late 1960s, and is not particularly characteristic of the campus today? True, SFU has now admitted its error, formally apologized to Ogden, paid his legal fees, and gone from being the university that lets graduate students twist in the wind to the university that offers better legal protection to graduate students than any university in the world we know of. But we suspect that what many people recall is that SFU — the institution — is the university that did not stand behind its word, while Russel Ogden — the person — lived up to every promise he made. Any ethics policy that undermines this personal relationship undermines its ability to do research.

On at least two occasions (p.127; p.160), Professors Jackson and MacCrimmon suggest that one should have a "full dialogue" with one's research subjects on the issue of confidentiality. We suggest that such dialogues typically do happen as a relationship with research subjects develops assuming it is relevant. But we wonder how this "full dialogue" fits within the process of ethics review that the URERC now practices, or that Professors Jackson and MacCrimmon seem to assume is the appropriate one. Further, we note that, even when the "full dialogue" occurs, it is often not at the start of a research relationship, but as it develops. People do not tell intimate details about their lives because one is a researcher from SFU; they talk about some aspects of their lives, gauge your reaction, and make ongoing decisions about just how far they are prepared to go based on the unfolding interaction.

The corollary of this is that researchers go through the same process, too. If they are like us, they are comfortable guaranteeing unlimited confidentiality for the reasons we elaborated above. But if the interaction starts to go in strange directions, and the researcher begins to feel uncomfortable about the commitments s/he has made, a relationship can be terminated, or an agreement changed, and sometimes is. An epistemologically sensitive ethics policy will incorporate the idea that some types of research require time to unfold to achieve definition.

An ethics review that requires researchers to predict everything ahead of time is suited to research with standardized "instruments" and procedures. But it creates conflicts and impediments for research that does not fit this mould. We suspect that part of what has "spooked" the URERC in its evaluation of field research proposals — a Committee that in the last five years has had little if any representation from persons experienced in qualitative field research — is that, in the absence of certainty about "what will happen," it proceeds on the basis of worst-case scenarios, sometimes based on stereotype, sometimes on pure guesswork. Jackson and MacCrimmon, in the role of lawyers whose job is to sensitize their clients (the university in this case) to risk, have further promoted this view. For example, when they dismissed our argument about the Tri-Council's minimal risk consent waiver provisions, part of their rationale was that our explanation relied on "best-case scenarios," to which they responded with worst case scenarios. But our scenarios were not provided because they were the "best" we could imagine. They were cited because they reflect the real worries of our research subjects, and, in our judgement, given years of experience in those field settings (since we were talking about the consent waiver provisions in the context of our research), were the most likely, if any, to occur.

The fact remains that no Canadian researcher has ever been ordered to divulge the names of research participants. The fact also remains that we do not intend to divulge them except in cases of heinous discovery. Consequently, there is no material risk to our subjects, apart from those who would blow up Vancouver. The particular conception of informed consent that has driven limited confidentiality at SFU, and continues to animate it in Jackson and MacCrimmon’s Legal Opinion, has become an institutional fetish that threatens to needlessly stultify certain kinds of qualitative field research. We suggest that only by including persons with field experience and expertise on university REBs will there be realistic assessments of the risks associated with such research.

Although the concerns we have expressed have relevance across the disciplines of the university, we have particular concern over the way that more qualitative field research will be handled by the new policy. The Draft Policy created by the Task Force is devoid of reference to disciplinary standards, makes no provision for epistemological diversity in the membership of the new REB, and creates a single, centralized committee that will ostensibly understand and appreciate the full range of research conducted at the university. An appreciation for the unique issues facing field researchers is evident in only one paragraph of the sixteen-page Draft Policy:

After making this token gesture, the rest of the Draft Policy speaks primarily to research that conforms to the standardized quantitative model. If the Task Force has nothing more to say about these "complex ethical considerations" after its 15 months of existence, how is an REB supposed to sort through these complex issues without any guidance from the policy?

The Task Force is not alone in this neglect. The Tri-Council itself did little better, although the representation of more qualitatively-inclined researchers among members of the Working Group was greater than zero. But after more than three years and a substantial budget, a colleague's recent query to the National Council on Ethics in Human Research (NCEHR) regarding the Tri-Council Policy Statement’s position on qualitative field research brought the following response:

We strongly urge the Task Force to consider establishing more than one REB at SFU so that one can focus exclusively on more qualitative/field research types of projects. We suggest it is only in this way that practitioners of such research will be able to get the epistemologically and disciplinarily-sensitive consideration that the Tri-Council and Task Force both suggest should occur in the process of ethics review. Further, this body should consider how some of the contentious terms from the Policy Statement — "minimal risk," for example — are to be defined in the qualitative research context, and particularly with respect to disciplines (e.g., English, Film) that have never before been subject to ethics review. It is also in such a forum that qualitative researchers could develop procedures for ethics review that ensures maximum protection for research participants without imposing formulaic monitoring standards that do little more than impede ethical research. In short, we believe formation of a Qualitative REB represents a timely opportunity for SFU to show national leadership on the issue of adaptation of ethical guidelines to qualitative field research.

 We begin this section by recalling a statement from the Tri-Council Policy Statement that Professors Jackson and MacCrimmon quote on page 11 of their Legal Opinion:

The authors cite this possibility approvingly, and, in the introduction to their Legal Opinion, express this as a part of their vision of the role that a university ethics policy should fulfil:

In large part, this proactivity is achieved by their suggesting that anticipation of the Wigmore criteria should be built into every research design, thereby ensuring maximum legal protection for research subjects. Being prepared in this manner helps to enhance the likelihood not only that efforts to claim privilege will be successful, but also that "bad law," i.e., precedents that undermine the likelihood of future researchers successfully defending researcher-subject privilege, will be avoided.

We wholeheartedly support that view and suggest the approach is one that other universities would do well to emulate. However, while this approach represents the Opinion’s greatest strength — i.e., its detailed understanding of the intricacy of 1999 Canadian law regarding privilege — ironically, this is also its greatest weakness. By accepting contemporary legal categories as they are, there is an important sense in which it precludes "affecting law's future development"!

Stated another way, how can researchers affect the development of law if their ethical thinking is rooted in legal rather than ethical categories? For example, if we accept, as Jackson and MacCrimmon seem to, that not only must there be a compelling policy reason for a class privilege to be recognised, but also the relationship must be inextricably linked with the justice system, then we are unlikely to win a class privilege in common law for researchers. However, we do not accept that these are the only valid reasons for the recognition of a class privilege, which differs from case-by case privilege only in terms of where the onus of proof lies in the balancing exercise a court engages in when deciding whether a communication should be privileged. Neither form of privilege is absolute.33

If we can proceed by analogy, we note that one of the authors of the legal opinion, Professor Michael Jackson, is one of Canada’s most distinguished legal scholars and practising lawyers in the area of Aboriginal rights. Recently, he was counsel to the Gitksan and Wet'suwet'en plaintiffs in the case of Delgamuukw v. The Queen, a watershed Supreme Court decision that has essentially re-written Canadian jurisprudence regarding Aboriginal rights. Could there ever have been a Delgamuukw if Professor Jackson had accepted the legal categories and framework that existed in the 1970s when he began his work in this area? We sincerely doubt it. The concept he began with was "Aboriginal rights," and that was the vision he pursued. He understood the law and respected it, and yet used his knowledge of its categories and frameworks to challenge it at every useful turn, until the point where it was "Aboriginal rights" that was shaping the law, not the other way around. It is conceivable that some of the Aboriginal defendants he represented went to jail for acting in accordance with what they perceived to be their rights — for "crimes" that are now perceived as legitimate expressions of Aboriginal rights.

In similar fashion, we believe an approach to ethics that is rooted in 1999 law, however insightful it may be, is doomed to be constrained by that law. We have a different aspiration. We envision a research ethics that does not submit absolutely to the law, and that influences the future development of law by making law more ethical, not ethics more legal. We suggest that the only way to achieve that vision is for researchers and the university to maintain a primary allegiance to ethics, to be informed by law and yet be prepared to challenge it if necessary, and thereby to "affect its future development." The starting point is for the university to have an ethics policy that is based in ethics, and to support researchers who are prepared to follow their deepest ethical convictions. This is the position we have tried to articulate in our various submissions to the SFU Research Ethics Policy Revision Task Force, and we very much appreciate the way in which Professors Jackson and MacCrimmon have helped focus that vision.

14 See Mary Marshall (1992). "When is a secret not a secret?" at http://www.cookdukecox.com/newsletters/issue6-1992/secret.htm