U of O profs stress confidentiality in criminal investigation

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The Fulcrum (University of Ottawa)


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

Professors Christine Bruckert and Colette Parent took the matter to court in March 2013 in order to challenge the seizure of a video interview with Magnotta, under the alias Jimmy. The interview was conducted six years earlier for a study called “Sex Work and Intimacy: Escorts and Their Clients” that took place between 2004 and 2008. Magnotta was one of the three groups of 20 male escorts, 20 female escorts and 20 clients who agreed to participate in the study under the promise of confidentiality.

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

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

“The evidence demonstrates that the public interest in respecting the promise of confidentiality is high,” the decision stated. “On the other hand, the interest of society in the investigation of serious crimes such as the one (contemplated) in this case is high, but the probative value, if any, of the Confidential Interview in the pursuit of that interest is, at best, minimal and marginal both theoretically and factually.”

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

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

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

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

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

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

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

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

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

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

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

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

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

With files from Sofia Hashi.

Photo: Adam Feibel