¹ In a 1998 article in the Canadian Association of University Teachers (Caut) Bulletin, the Association's monthly newspaper, we requested information about any cases members might know about. See Lowman, J. & Palys, T., “When Research Ethics and Law Conflict” Caut Bulletin Acppu (June 1998) 6.Google Scholar Not one was forthcoming. If any readers of the current article know of such a case, we would appreciate hearing about it.

² For commentary on the Ogden case and SFU's reaction to it, see Lowman, J. & Palys, T., “A Law Unto Itself?” Simon Fraser News (27 November 1997) 5Google Scholar; Palys, T. & Lowman, J., “Abandoning ‘the Highest Ethical Standards’: Research Ethics at SFU” The Bulletin (April 1998) 5Google Scholar; Lowman & Palys, supra note 2; Lowman, J. & Palys, T., “The Liability of Ethics” Simon Fraser News (16 July 1998) 5Google Scholar; Lowman, J. & Palys, T., “Ethics/Law Conflict Revisited” Caut Bulletin Acppu (September 1998) 2Google Scholar; Lowman, J. & Palys, T., The History of Limited Confidentiality at SFU (1998)Google Scholar, online: T. Palys Homepage <http://www.sfu.ca/~palys/History.html> (date accessed: 14 June 2000) [hereinafter The History of Limited Confidentiality at SFU].

³ Ogden v. Simon Fraser University (19 June 1998), Burnaby Registry No.26780 (B.C. Prov. Ct.), online: T. Palys Homepage http://www.sfu.ca/~palys/steinbrg.htm (date accessed: 14 June 2000).

⁴ British Columbia, Russel Ogden Decision Review: A report to the President of Simon Fraser University (British Columbia: Simon Fraser University, 1998)Google Scholar (Co-chairs: N. Blomley & S. Davis).

⁵ Ottawa, Department of Supply and Services, 1998, online: Social Sciences and Humanities Research Council Homepage http://www.sshrc.ca/english/programinfo/policies/Index.htm (date accessed: 14 June 2000) [hereinafter Policy Statement].

⁶ The Medical Research Council (MRC), the National Science and Engineering Research Council (NSERC) and the Social Science and Humanities Research Council (SSHRC).

⁷ Supra note 6 at i-5.

⁸ A 1996 volume of Law and Contemporary Problems, 59:3, devoted to court-ordered disclosure of academic research identified about twenty relevant cases out of probably hundreds of thousands of research studies conducted during the thirty year period they refer to. For a description of these cases, see Lowman, J. & Palys, T., “Informed Consent, Confidentiality and the Law” (1999)Google Scholar, online: T. Palys Homepage http://www.sfu.ca/~palys/Conf&Law.html (date accessed: 14 June 2000).

⁹ Although cases discussed in the secondary literature probably do not include all such cases, they nevertheless give a good idea of the range of research affected and how US courts have balanced competing interests in those situations.

¹⁰ See e.g. Dow Chemical v. Allen, 672 F.2d 1262, 1274–77 (7^th Cir. 1982), and Deitchman v. Squibb, 740 F.2d 556 (7^th Cir. 1984). In both cases, the courts agreed that any identifying information should be protected.

¹¹ An early example is Richards of Rockford v. Pacific Gas & Elec, 71 F.R.D. 388 (N.D. Cal. 1976). The most recent example is In re: Cusumano & Yoffie [United States v. Microsoft], No. 98–2133 (1st Cir. 1998) [hereinafter Microsoft]. In both cases, the courts agreed that any identifying information should be protected.

¹² See Brajuha, M. & Hallowell, L., “Legal intrusion and the politics of field work: The impact of the Brajuha case” (1986) 14 Urb. Life 454CrossRefGoogle Scholar; and Scarce, R. “(No) Trial (But) Tribulations: When Courts and Ethnography Conflict” (1994) 23:2J. Contemp. Ethnog. 123.CrossRefGoogle Scholar In neither case were promised confidences violated, although Scarce spent 159 days in jail for contempt in order to maintain them. Of course, grand juries do not exist in Canada.

¹³ See Leo, R., “Trial and Tribulations: Courts, Ethnography, and the Need for an Evidentiary Privilege for Academic Researchers” (1995) 26:1Amer. Soc. 113.CrossRefGoogle Scholar The case is unusual to the extent that the research participants apparently did not object to the researcher testifying; they thought his testimony would help their cause. Given that research participants have the right to waive privilege, law and ethics may not have been in conflict in this instance.

¹⁴ For the social sciences generally, see Kidder, L., Research Methods in Social Relations, 4th ed., (New York: Holt Rinehart & Winston, 1981)Google Scholar; for our discipline, criminology, see Wolfgang, M., “Criminology: Confidentiality in Criminological Research and Other Ethical Issues:’ (1981) 72:1J. Criminal Law and Criminology 345.CrossRefGoogle Scholar

¹⁵ See generally Nejelski, P., ed., Social Research in Conflict with Law and Ethics (Cambridge, Mass.: Ballinger, 1976)Google Scholar; Boruch, R.F. & Cecil, J., eds., Solutions to Ethical and Legal Problems in Social Research (New York: Academic Press, 1983)Google Scholar; and Cecil, J. & Wetherington, G.T., eds., “Court-Ordered Disclosure of Academic Research: A Clash of Values of Science and Law” (1996) 59:3Law and Contemporary Problems.Google Scholar

¹⁶ Supra note 6 at 3.2.

¹⁷ The more inductive and qualitative research becomes, the more likely it is that researchers know the identities of their participants. Also, in longitudinal research, such as the National Longitudinal Study of Children and Youth conducted by Statistics Canada, it is necessary to know participant identities in order to track them over time.

¹⁸ See e.g. Berg, B.L., Qualitative Research Methods for the Social Sciences (Boston: Allyn & Bacon, 1989)Google Scholar; Lofland, J. & Lofland, L.H., Analyzing Social Settings: A Guide to Qualitative Observation and Analysis, 3rd ed., (Belmont, CA: Wadsworth, 1995)Google Scholar; Palys, T., Research Decisions: Qualitative and Quantitative Perspectives, 2nd ed., (Toronto: Harcourt Brace, 1997).Google Scholar

¹⁹ Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].

²⁰ Supra note 6 at i-8.

²¹ Jackson, M. & MacCrimmon, M., Research Confidentiality and Academic Privilege: A Legal Opinion (1999).Google Scholar Commissioned by Simon Fraser University (SFU) Research Ethics Policy Revision Task Force, online: SFU President’s Homepage <http://www.sfu.ca/pres/researchconfidentiality.htm> at 16ff (date accessed: 14 June 2000) [hereinafter Jackson & MacCrimmon]. The quotation by La Forest J. can be found at R. v. Dyment, [1988] 2 S.C.R. 417 at 429–30 [hereinafter Dyment].

²² R. v. Plant, [1993] 3 S.R.C. 281 at 293 [hereinafter Plant].

²³ R.S.B.C. 1996, c. 165 [hereinafter Privacy Act].

²⁴ British Columbia, Report of the Special Committee to Review the Freedom of Information and Protection of Privacy Act, (British Columbia: Queen’s Printer, 1999).Google Scholar

²⁵ See e.g. Sopinka, J., Lederman, S.N., & Bryant, A.W., The Law of Evidence in Canada (Toronto: Butterworths, 1992)Google Scholar [hereinafter The Law of Evidence in Canada].

²⁶ R. v. O’Connor [1995] 4 S.C.R. 411 at 517 [hereinafter O’Connor].

²⁷ Jackson & MacCrimmon, supra note 22 at 33.

²⁸ Canada Evidence Act, R.S.C. 1985, c. C-5 [hereinafter Evidence Act].

²⁹ R.S.C. 1985, c. S-19 [hereinafter Statistic Act].

³⁰ See e.g. R. v. Mills, [1999] 3 S.C.R. 668 [hereinafter Mills].

³¹ Smith v. Jones, [1999] 1 S.C.R. 455 at 474- 75 [hereinafter Smith].

³² Ibid. at 477.

³³ The reason why the court clarified this was because the prospective harm was serious (involving death), imminent (Jones had already mobilised the plan), and directed toward a clearly identified target (prostitutes on a specific Vancouver stroll).

³⁴ Smith, supra note 32 at 474.

³⁵ Jacson & MacCrimmon, supra note 22 at 119.

³⁶ R. v. Gruenke, [1991] 3 S.C.R. 263 [hereinafter Gruenke].

³⁷ Ibid. at 303–04. Justices L’Heureux-Dubé and Gonthier stated: “[O]ther authors express the view that it would be impractical and futile to attempt to force the clergy to testify, because often the cleric would refuse. … Compelling disclosure, or charging a cleric in contempt, it is further argued, places the presiding judge in the position of having either to force the breach of a confidence, or to imprison the cleric, both of which may arguably bring disrepute to the system of justice.”

³⁸ Supra note 26 at 631.

³⁹ Supra note 31 at 723.

⁴⁰ Wigmore, J. H., A Treatise on the System of Evidence in Trials at Common Law, Including the Statutes and Judicial Decisions of All Jurisdictions of the United States, England, and Canada (Boston: Little, Brown 1905).Google Scholar

⁴¹ Ibid. at 3185 [italics in original].

⁴² See Daisley, B., “Clear evidence needed to invoke Wigmore rules” The Lawyer’s Weekly (9 December 1994) 28Google Scholar; M. Marshall, “When is a secret not a secret?” Cook Duke Cox Newsletter 1992); Jackson & MacCrimmon, supra note 22; Gruenke, supra note 37; M.(A.) v. Ryan, [1997] 1 S.C.R. 157 [hereinafter Ryan].

⁴³ Lord Eldon, from an 1819 decision in Parkhurst v. Lowten, cited by Wigmore, supra note 41 at 3233.

⁴⁴ P. Jones, A Legal Opinion Regarding Research-Participant Privilege (February 15, 1999) at par. iii, as reproduced in J. Lowman & T. Palys, Going the Distance: Lessons for Researchers from Jurisprudence on Privilege, (1999) in App. A, online: T. Palys Homepage <http://www.sfu.ca/~palys/Distance.html> (date accessed: 14 June 2000). Jones is legal advisor to Caut. The opinion was provided at the request of the SFU Faculty Association.

⁴⁵ Ryan, supra note 43 at 173.

⁴⁶ Ibid. at 168.

⁴⁷ Supra note 6 at 2.6.

⁴⁸ See The Law of Evidence in Canada, supra note 26.

⁴⁹ Supra note 6 at 3.2.

⁵⁰ Atlantic Sugar v. United States, 85 Cust. Ct. 128 (1980) [hereinafter Atlantic Sugar]. The case is discussed in Traynor, M. “Countering the excessive subpoena for scholarly research” (1996) 59:3 Law & Contemporary Problems 119 at 122Google Scholar, and is all the more provocative because it goes against the grain of many other US court decisions that protect confidentiality. We thank Mr. Traynor for supplying us with a copy of the decision.

⁵¹ Supra note 6 at 3.2.

⁵² This is not a recommendation for using signed informed consent statements, since the very existence of the statement may compromise confidentiality.

⁵³ Mario Brajuha’s participant-observer research on the “sociology of the American restaurant” illustrates the problem. A grand jury subpoenaed Brajuha, and asked to see his field notes. Although Brajuha had guaranteed confidentiality to “many” of his research participants, he had not kept a record of those guarantees. This raised for the court the problem of establishing to whom he had guaranteed confidentiality, and hence identifying which parts of his field notes were privileged. See R. M. O’Neil “A researcher’s privilege: Does any hope remain?” in J. Cecil & G.T. Wetherington, supra note 16 at 41.

⁵⁴ Wigmore, supra note 41 at 3211.

⁵⁵ Scarce, supra note 13.

⁵⁶ O'Neil, supra note 41.

⁵⁷ See Policy Statement, supra note 6 at 4.0.

⁵⁸ See e.g. Kidder, supra note 15; Sudman, S. & Bradburn, N., Asking Questions (San Francisco: Jossey Bass, 1982).Google Scholar

⁵⁹ Supra note 6 at 3.1.

⁶⁰ Traynor, supra note 51 at 121.

⁶¹ In some cases, this information can be gathered after the fact. In Farnsworth v. Proctor & Gamble, 758 F.2d 1545, 1546–47 (ll^th Cir. 1985) [hereinafter Proctor & Gamble] for example, when the Center for Disease Control (CDC) was subpoenaed to produce information they had gathered regarding toxic shock syndrome (which included sexual histories), the CDC contacted all participants, told them of the subpoena, and asked whether they would consent to their names and data being passed on to Proctor & Gamble. Had they said “yes,” the researcher's ethical problem would be resolved because the participants would have waived privilege. However, in this case, the answer was a resounding “no,” which gave concrete evidence that confidentiality of identity was crucial to participation in the research. The court protected the identity of respondents in that case, even though CDC had not given an express guarantee of confidentiality at the outset.

⁶² Transcript of Coroner's Inquest re: “Unknown Female” (1 June 1994, Case 91–240–0838) at 33–35.

⁶³ Supra note 22.

⁶⁴ Policy Statement, supra note 6 at i.7.

⁶⁵ Supra note 22 at 114–15.

⁶⁶ Ibid.

⁶⁷ Policy Statement, supra note 6 at i-4.

⁶⁸ See Wiggins, E. C. & McKenna, J. A., “Researchers' reactions to compelled disclosure of scientific information” (1996) 59:3 Law and Contemporary Problems 67 at 87.Google Scholar

⁶⁹ In re R.J.Reynolds, 518 N.Y.S.2d 729 (Sup. Ct. 1987).

⁷⁰ Wiggins & McKenna, supra note 69 at 69.

⁷¹ Ibid. at 70, 76.

⁷² Ibid. at 69.

⁷³ Ibid. at 76.

⁷⁴ Ibid. at 79.

⁷⁵ See e.g. Proctor & Gamble, supra note 62.

⁷⁶ Microsoft, supra note 12 at 9.

⁷⁷ B. Crabb, “Judicially compelled disclosure of researchers' data: A judge's view” in Cecil and Wetherington, supra note 16 at 9.

⁷⁸ Ibid. at 14.

⁷⁹ See, e.g. Crabb, supra note 78; Wiggins & McKenna, supra note 69; P. M. Fischer, “Science and subpoenas: When do the courts become instruments of manipulation?” in Cecil & Wetherington, supra note 16 at 159.

⁸⁰ See Crabb, supra note 78; Wiggins & McKenna, supra note69.

⁸¹ Supra note 27.

⁸² A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536.

⁸³ Supra note 43.

⁸⁴ Supra note 31.

⁸³ Ryan, supra note 43 at 170.

⁸⁶ Supra note 27 at 431.

⁸⁷ Ibid. at 56.

⁸⁸ Supra note 31 at 713.

⁸⁹ Ibid. at 73.

⁹⁰ Ryan, Supra note 43 at 179.

⁹¹ For discussion of the ethical and legal implications of this, the American Sociological Association's Code of Ethics, see J. Lowman & T. Palys, “Confidentiality and the 1997 ASA Code of Ethics: A Query” Footnotes, (February 1999); J. Iutcovich et al., “Confidentiality and the 1997 ASA Code of Ethics: A Response from Cope” Footnotes (February 1999).

⁹² Supra note 6 at i-8.

⁹³ Ibid. at 2.9.

⁹⁴ Ibid. at 10.2.

⁹⁵ Letter from A-M Monteith to J. Lowman & T. Palys (27 April 2000), online: T. Palys Homepage <http://www.sfu.ca/~palys/TCPSFAQ.pdf> (date accessed: 14 June 2000) [hereinafter NSERC letter].

⁹⁶ An indictable conviction for contempt of court (CCC s. 127) with a penalty not exceeding two years.

⁹⁷ Supra note 6 at i-8.

⁹⁸ See The History of Limited Confidentiality at SFU, supra note 3.

⁹⁹ See T. J. Madden & H. S. Lessin “Statutory approaches to ensuring the privacy and confidentiality of social science research information: The Law Enforcement Assistance Administration experience” in Boruch & Cecil, supra note 16 at 248.

¹⁰⁰ Supra note 22.

¹⁰¹ See supra notes 9 and 16.

¹⁰² In 1972, Popkin, a Harvard political scientist, spent eight days in jail for refusing to reveal to a grand jury the identities of the persons he interviewed regarding the Pentagon papers, a secret war study. See Caroll, J. & Knerr, C., “Confidentiality of social science research sources and data: The Popkin case” (1973) 6 Polit. Sci. Quart 268.Google Scholar

¹⁰³ Supra note 51.

¹⁰⁴ Supra note 13.

¹⁰⁵ If any reader knows of such a case, we would appreciate it being brought to our attention.

¹⁰⁶ E. Friedson, “The Legal Protection of Social Research: Criteria for Definition” in Nejelski, supra note 16 at 123.

¹⁰⁷ See e.g. R. v. Scott, [1990] 3 S.C.R. 979.

¹⁰⁸ We would make a similar argument in the case of research on offences, such as child abuse, that one is required to report. The solution to the problems posed by mandatory reporting laws may well be addressed by use of confidentiality certificates, which are discussed in the conclusion to the paper.

¹⁰⁹ We mean “record” broadly. For example, the researcher could note the response anonymously or with a pseudonym in contemporaneous field notes, or have a verbatim record in an anonymised interview transcript.

¹¹⁰ See Levine, F. & Kennedy, J. M., “Promoting a scholar's privilege: Accelerating the pace” (1999) 24:4L. & Soc. Inquiry 967.Google Scholar

¹¹¹ On the history of confidentiality and privacy certificates see Madden & Lessin, supra note 100 at 263; Nelson, R.T. & Hedrick, T.E, ‘The Statutory Protection of Confidential Research Data: Synthesis and Evaluation” in Boruch, R.F. & Cecil, J., eds., Solutions to Ethical and Legal Problems in Social Research (New York: Academic Press, 1983) 213.Google Scholar

¹¹² §301(d), 42 U.S.C. §241(d).

¹¹³ 42 U.S.C. §3789g

¹¹⁴ People v. Newman, 32 N.Y.2d 379, 298 N.E.2d 651, 345 N.Y.S.2d 502 (1973), cert. denied, 414 U.S. 1163 (1973).

¹¹⁵ See Nelson & Hedrick, supra note 112 at 213.

¹¹⁶ Supra note 6 at i-8.