Ron:

I'm not sure on the English precedents, but Canadian decisions do seem 
to offer some legal basis for such immunity in the case of academic 
researchers.  The article by Palys and Lowman 
(http://www.sfu.ca/~palys/Strategies-CJLS.pdf) gives a useful 
discussion.  Journalists are indeed often dragged before the courts. 
However, they are often backed up by their employers in the name of 
freedom of the press in ways that academics like Ogden weren't.

Nick

On Friday, January 31, 2003, at 08:25  AM, R.J.Johnston wrote:

>
> I undertsand the issue perfectly, but wonder whether such claimed 
> immunity
> will really stand up: as I understand it, only doctors and priests
> (surgery and confessional) are so protected here, and journalists have
> been imprisoned whren they fail to disclose sources.
>
> Beyond the inidividual case, much will depend on (a) the ethical 
> approval
> process undertaken before the interviewing and (b) whether the 
> researcher
> formally gave the respondents a guarnatee of confidentiality.
>
> Under data protection legislation here, any individual has the right to
> see any documents (electroninc or otherwise) about her/himself - and 
> can
> presumably choose to use these in a law caase, irespective of the
> researcher's wishes!
>
> RON
>
> On Fri, 31 Jan 2003, Nicholas Blomley wrote:
>
>> Dear colleagues:
>>
>> Please excuse the long email. I am directing this in the first 
>> instance
>> to Canadian geographers.  However, support from other academics would
>> be most welcome.
>>
>> The forwarded message below from Ted Palys and John Lowman, two
>> Criminologists, concerns the case of a Canadian researcher who has now
>> been subpoenaed two times and asked to divulge information collected
>> from his research subjects to a court of law, despite his pledge to
>> protect his respondents' confidentiality and anonymity.  This first
>> occurred in 1994, when he was a Criminology MA student at Simon Fraser
>> University.  He refused to appear, citing his ethics agreement with 
>> his
>> respondents.  Fortunately, he was vindicated.  However, one can only
>> imagine the personal consequences of this battle.  Now it appears the
>> same issue has resurfaced.
>>
>> As researchers, I believe the issues raised by Mr Ogden's case concern
>> us all.  Critical issues of academic freedom and research ethics are 
>> at
>> issue.  One can imagine similar issues arising  in Geography:  for
>> example, a political geographer might interview urban housing 
>> activists
>> or representatives of the Muslim community (with appropriate pledges 
>> of
>> anonymity) and then be subpoenaed by the authorities.  This would have
>> a chilling effect not only on academic freedom, but on the willingness
>> of research subjects to interact with academics.
>>
>> Unlike the US, Canadian law is unsettled.   Palys and Lowman suggest
>> the following action, which I urge you to consider:
>>
>> "We suggest that researchers and others who would like to support 
>> Russel
>> forward this email to the Presidents of the three granting councils
>> urging
>> them to take two actions.
>>
>> 1. Provide whatever funds are necessary to defend Russel Ogdenb> 
>> research
>> subjects from the threat of the courts; and
>>
>> 2. Initiate a campaign for legislation to create b> certificatesb>
>> We would note that we addressed our plea for legal help to the
>> Presidents of
>> the three granting councils for two reasons. First, the subpoena 
>> Russel
>> just
>> received concerns his work as an independent researcher. Because he 
>> did
>> not
>> hold a University or College post when he started his current research
>> on
>> assisted suicide, it is conducted under the auspices of a Community
>> Based
>> Research Council ethics certificate. CBRC has no funds for mounting a
>> legal
>> defence. Second, our article in the Canadian Journal of Law and 
>> Society
>> (http://www.sfu.ca/~palys/Strategies-CJLS.pdf) alerted the three
>> granting
>> councils to the problem Russel is now facing and asked them to resolve
>> potential conflicts between ethics and law by securing confidentiality
>> certificate legislation in Canada. If the granting councils are not
>> prepared
>> to champion this cause, who will? Also, we note that if the granting
>> councils had acted three years ago, their resolve to protect research
>> participants from the courts could have been used now as evidence to
>> defend
>> Ogden's research subjects against the subpoena.
>>
>> The names of the three granting council presidents are:
>>
>> Marc Renaud, President, Social Sciences and Humanities Research 
>> Council
>> Tom Brzustowski, President, National Science and Engineering Research
>> Council
>> Alan Bernstein, President, Canadian Institutes for Health Research
>>
>> Their respective email addresses are: [log in to unmask],
>> [log in to unmask], [log in to unmask]"
>>
>> Nick Blomley
>>
>> Begin forwarded message:
>>
>>> From: [log in to unmask]
>>> Subject: DC)jC  Vu: Ogden Subpoenaed Again
>>> Reply-To: [log in to unmask]
>>>
>>> An Open Letter To:
>>> Marc Renaud, President, Social Sciences and Humanities Research 
>>> Council
>>> Tom Brzustowski, President, National Science and Engineering Research
>>> Council
>>> Alan Bernstein, President, Canadian Institutes for Health Research
>>>
>>> From: Ted Palys & John Lowman
>>> Subject: DC)jC  Vu: Ogden Subpoenaed Again
>>>
>>> Russel Ogden, an internationally renowned expert on assisted suicide,
>>> has
>>> been subpoenaed again. He was first subpoenaed in 1994 to appear
>>> before a
>>> CoronerBs Court. He successfully defended academic freedom from the
>>> CourtBs
>>> threat using the common law BWigmore testB to assert
>>> research-participant
>>> privilege. The second subpoena arrived at his home on January 8th 
>>> this
>>> year
>>> and calls on him to appear on March 19th Bto give material evidence
>>> for the
>>> prosecutionB in the preliminary hearing of 72 year old Evelyn 
>>> Martens
>>> on
>>> charges of counselling a person to commit suicide and 
>>> aiding/abetting a
>>> person to commit suicide. TodayBs Vancouver Sun reports that other
>>> charges
>>> are pending.
>>>
>>> Ogden was attending MartenBs hearing as part of his research but 
>>> now,
>>> as a
>>> prospective material witness, he can no longer continue his court
>>> observations. Worse, participants in his longitudinal research may
>>> withdraw
>>> as they wait to see how the case unfolds. Others may decline to 
>>> provide
>>> information for fear that association with him will make them objects
>>> of the
>>> prosecutorBs attention. In fact, OgdenBs entire research program 
>>> is in
>>> jeopardy now that he is squarely in the prosecutorBs sights as a
>>> prospective
>>> witness in this and who knows what other cases.
>>>
>>> OgdenBs second case dramatically illustrates the threat that the
>>> courts pose
>>> to academic freedom in Canada. The mere fact of the subpoena will 
>>> have
>>> a
>>> chilling effect on OgdenBs research regardless of how the court
>>> ultimately
>>> deals with it.
>>>
>>> The scene is reminiscent of the United States in the 1970s during the
>>> Nixon
>>> years when grand juries and other legal authorities first tried to
>>> co-opt
>>> researchers as witnesses for the prosecution. U.S. researchers
>>> resisted and
>>> they, their universities, their disciplinary associations and federal
>>> funding agencies campaigned for statutory protections for research
>>> confidentiality. Federal authorities understood that certain kinds of
>>> sensitive research on important social issues could never be done 
>>> with
>>> researchers and their participants wondering when the next subpoena
>>> would
>>> arrive. They understood that the justice system itself would lose out
>>> because it would lose the potential for the expert testimony that is
>>> the
>>> essential foundation of legal decisions and social policies.
>>>
>>> The U.S. government responded by creating statutory protections in 
>>> the
>>> form
>>> of BconfidentialityB and Bprivacy certificatesB making certain 
>>> kinds of
>>> sensitive health and criminal justice research immune to the courts.
>>> Statistics Canada researchers enjoy the same kinds of protections
>>> under the
>>> Statistics Act.
>>>
>>> Have Canadian academics learned anything in light of the U.S.
>>> experience?
>>> Apparently not. The SFU Research Ethics Policy Review Task Force,
>>> Chaired by
>>> the late Ellen Gee, recommended that SFU initiate a campaign for
>>> confidentiality certificates here in Canada. What has SFU done? So 
>>> far,
>>> nothing, but we hope that will change. And, of course, SFU should not
>>> have
>>> to bear this burden alone.
>>>
>>> In 1998 the three granting councils saw fit to impose the Tri-Council
>>> Policy
>>> Statement on Canadian universities in the name of protecting research
>>> subjects. The Policy Statement recognises that Blegal and ethical
>>> approaches
>>> to issues may lead to different conclusionsB and says that Bthough
>>> ethical
>>> approaches cannot pre-empt the application of the law, they may well
>>> affect
>>> its future development.B The question now is: how much are the 
>>> granting
>>> councils prepared to walk their talk? Where is their responsibility 
>>> in
>>> ensuring that the law develops in such a way that conflicts between
>>> ethics
>>> and law are minimised?
>>>
>>> Three years ago we published an article on the ethics and law of
>>> research
>>> confidentiality in the Canadian Journal of Law and Society (URL) that
>>> ended
>>> by urging the councils to pick up the baton and press for research
>>> confidentiality certificate legislation in Canada based on the U.S.
>>> model.
>>> As far as we know, they have done nothing to this end. Perhaps 
>>> OgdenBs
>>> latest subpoena will convince them to chart a different course.
>>>
>>> OgdenBs first subpoena might have been written off as a fluke. But 
>>> this
>>> second one shows that OgdenBs research is a target. Now is the time 
>>> for
>>> every member of the academic research community to do what they can 
>>> to
>>> support OgdenBs fight to prevent the courts and the state from
>>> co-opting
>>> researchers as agents of law enforcement and witnesses for the
>>> prosecution.
>>> This open letter is a formal request to the three granting councils 
>>> to
>>> provide the requisite funds for a lawyer so that Russel Ogden is not
>>> left on
>>> his own once again to defend academic freedom and the integrity of 
>>> the
>>> research enterprise.
>>>
>>>
>>>
>>>
>>
>>
>> Begin forwarded message:
>>
>>> From: [log in to unmask]
>>> Date: Tue Jan 28, 2003  3:20:46  PM America/Vancouver
>>> To: [log in to unmask], [log in to unmask], 
>>> [log in to unmask]
>>> Cc: [log in to unmask], [log in to unmask], [log in to unmask],
>>> [log in to unmask], [log in to unmask], [log in to unmask],
>>> [log in to unmask], [log in to unmask], [log in to unmask],
>>> [log in to unmask], [log in to unmask], [log in to unmask], [log in to unmask]
>>> Subject: DC)jC  Vu: Ogden Subpoenaed Again
>>> Reply-To: [log in to unmask]
>>>
>>> An Open Letter To:
>>> Marc Renaud, President, Social Sciences and Humanities Research 
>>> Council
>>> Tom Brzustowski, President, National Science and Engineering Research
>>> Council
>>> Alan Bernstein, President, Canadian Institutes for Health Research
>>>
>>> From: Ted Palys & John Lowman
>>> Subject: DC)jC  Vu: Ogden Subpoenaed Again
>>>
>>> Russel Ogden, an internationally renowned expert on assisted suicide,
>>> has
>>> been subpoenaed again. He was first subpoenaed in 1994 to appear
>>> before a
>>> CoronerBs Court. He successfully defended academic freedom from the
>>> CourtBs
>>> threat using the common law BWigmore testB to assert
>>> research-participant
>>> privilege. The second subpoena arrived at his home on January 8th 
>>> this
>>> year
>>> and calls on him to appear on March 19th Bto give material evidence
>>> for the
>>> prosecutionB in the preliminary hearing of 72 year old Evelyn 
>>> Martens
>>> on
>>> charges of counselling a person to commit suicide and 
>>> aiding/abetting a
>>> person to commit suicide. TodayBs Vancouver Sun reports that other
>>> charges
>>> are pending.
>>>
>>> Ogden was attending MartenBs hearing as part of his research but 
>>> now,
>>> as a
>>> prospective material witness, he can no longer continue his court
>>> observations. Worse, participants in his longitudinal research may
>>> withdraw
>>> as they wait to see how the case unfolds. Others may decline to 
>>> provide
>>> information for fear that association with him will make them objects
>>> of the
>>> prosecutorBs attention. In fact, OgdenBs entire research program 
>>> is in
>>> jeopardy now that he is squarely in the prosecutorBs sights as a
>>> prospective
>>> witness in this and who knows what other cases.
>>>
>>> OgdenBs second case dramatically illustrates the threat that the
>>> courts pose
>>> to academic freedom in Canada. The mere fact of the subpoena will 
>>> have
>>> a
>>> chilling effect on OgdenBs research regardless of how the court
>>> ultimately
>>> deals with it.
>>>
>>> The scene is reminiscent of the United States in the 1970s during the
>>> Nixon
>>> years when grand juries and other legal authorities first tried to
>>> co-opt
>>> researchers as witnesses for the prosecution. U.S. researchers
>>> resisted and
>>> they, their universities, their disciplinary associations and federal
>>> funding agencies campaigned for statutory protections for research
>>> confidentiality. Federal authorities understood that certain kinds of
>>> sensitive research on important social issues could never be done 
>>> with
>>> researchers and their participants wondering when the next subpoena
>>> would
>>> arrive. They understood that the justice system itself would lose out
>>> because it would lose the potential for the expert testimony that is
>>> the
>>> essential foundation of legal decisions and social policies.
>>>
>>> The U.S. government responded by creating statutory protections in 
>>> the
>>> form
>>> of BconfidentialityB and Bprivacy certificatesB making certain 
>>> kinds of
>>> sensitive health and criminal justice research immune to the courts.
>>> Statistics Canada researchers enjoy the same kinds of protections
>>> under the
>>> Statistics Act.
>>>
>>> Have Canadian academics learned anything in light of the U.S.
>>> experience?
>>> Apparently not. The SFU Research Ethics Policy Review Task Force,
>>> Chaired by
>>> the late Ellen Gee, recommended that SFU initiate a campaign for
>>> confidentiality certificates here in Canada. What has SFU done? So 
>>> far,
>>> nothing, but we hope that will change. And, of course, SFU should not
>>> have
>>> to bear this burden alone.
>>>
>>> In 1998 the three granting councils saw fit to impose the Tri-Council
>>> Policy
>>> Statement on Canadian universities in the name of protecting research
>>> subjects. The Policy Statement recognises that Blegal and ethical
>>> approaches
>>> to issues may lead to different conclusionsB and says that Bthough
>>> ethical
>>> approaches cannot pre-empt the application of the law, they may well
>>> affect
>>> its future development.B The question now is: how much are the 
>>> granting
>>> councils prepared to walk their talk? Where is their responsibility 
>>> in
>>> ensuring that the law develops in such a way that conflicts between
>>> ethics
>>> and law are minimised?
>>>
>>> Three years ago we published an article on the ethics and law of
>>> research
>>> confidentiality in the Canadian Journal of Law and Society (URL) that
>>> ended
>>> by urging the councils to pick up the baton and press for research
>>> confidentiality certificate legislation in Canada based on the U.S.
>>> model.
>>> As far as we know, they have done nothing to this end. Perhaps 
>>> OgdenBs
>>> latest subpoena will convince them to chart a different course.
>>>
>>> OgdenBs first subpoena might have been written off as a fluke. But 
>>> this
>>> second one shows that OgdenBs research is a target. Now is the time 
>>> for
>>> every member of the academic research community to do what they can 
>>> to
>>> support OgdenBs fight to prevent the courts and the state from
>>> co-opting
>>> researchers as agents of law enforcement and witnesses for the
>>> prosecution.
>>> This open letter is a formal request to the three granting councils 
>>> to
>>> provide the requisite funds for a lawyer so that Russel Ogden is not
>>> left on
>>> his own once again to defend academic freedom and the integrity of 
>>> the
>>> research enterprise.
>>>
>>>
>>>
>>>
>>
>>
>> Begin forwarded message:
>>
>>> From: [log in to unmask]
>>> Date: Tue Jan 28, 2003  3:20:46  PM America/Vancouver
>>> To: [log in to unmask], [log in to unmask], 
>>> [log in to unmask]
>>> Cc: [log in to unmask], [log in to unmask], [log in to unmask],
>>> [log in to unmask], [log in to unmask], [log in to unmask],
>>> [log in to unmask], [log in to unmask], [log in to unmask],
>>> [log in to unmask], [log in to unmask], [log in to unmask], [log in to unmask]
>>> Subject: DC)jC  Vu: Ogden Subpoenaed Again
>>> Reply-To: [log in to unmask]
>>>
>>> An Open Letter To:
>>> Marc Renaud, President, Social Sciences and Humanities Research 
>>> Council
>>> Tom Brzustowski, President, National Science and Engineering Research
>>> Council
>>> Alan Bernstein, President, Canadian Institutes for Health Research
>>>
>>> From: Ted Palys & John Lowman
>>> Subject: DC)jC  Vu: Ogden Subpoenaed Again
>>>
>>> Russel Ogden, an internationally renowned expert on assisted suicide,
>>> has
>>> been subpoenaed again. He was first subpoenaed in 1994 to appear
>>> before a
>>> CoronerBs Court. He successfully defended academic freedom from the
>>> CourtBs
>>> threat using the common law BWigmore testB to assert
>>> research-participant
>>> privilege. The second subpoena arrived at his home on January 8th 
>>> this
>>> year
>>> and calls on him to appear on March 19th Bto give material evidence
>>> for the
>>> prosecutionB in the preliminary hearing of 72 year old Evelyn 
>>> Martens
>>> on
>>> charges of counselling a person to commit suicide and 
>>> aiding/abetting a
>>> person to commit suicide. TodayBs Vancouver Sun reports that other
>>> charges
>>> are pending.
>>>
>>> Ogden was attending MartenBs hearing as part of his research but 
>>> now,
>>> as a
>>> prospective material witness, he can no longer continue his court
>>> observations. Worse, participants in his longitudinal research may
>>> withdraw
>>> as they wait to see how the case unfolds. Others may decline to 
>>> provide
>>> information for fear that association with him will make them objects
>>> of the
>>> prosecutorBs attention. In fact, OgdenBs entire research program 
>>> is in
>>> jeopardy now that he is squarely in the prosecutorBs sights as a
>>> prospective
>>> witness in this and who knows what other cases.
>>>
>>> OgdenBs second case dramatically illustrates the threat that the
>>> courts pose
>>> to academic freedom in Canada. The mere fact of the subpoena will 
>>> have
>>> a
>>> chilling effect on OgdenBs research regardless of how the court
>>> ultimately
>>> deals with it.
>>>
>>> The scene is reminiscent of the United States in the 1970s during the
>>> Nixon
>>> years when grand juries and other legal authorities first tried to
>>> co-opt
>>> researchers as witnesses for the prosecution. U.S. researchers
>>> resisted and
>>> they, their universities, their disciplinary associations and federal
>>> funding agencies campaigned for statutory protections for research
>>> confidentiality. Federal authorities understood that certain kinds of
>>> sensitive research on important social issues could never be done 
>>> with
>>> researchers and their participants wondering when the next subpoena
>>> would
>>> arrive. They understood that the justice system itself would lose out
>>> because it would lose the potential for the expert testimony that is
>>> the
>>> essential foundation of legal decisions and social policies.
>>>
>>> The U.S. government responded by creating statutory protections in 
>>> the
>>> form
>>> of BconfidentialityB and Bprivacy certificatesB making certain 
>>> kinds of
>>> sensitive health and criminal justice research immune to the courts.
>>> Statistics Canada researchers enjoy the same kinds of protections
>>> under the
>>> Statistics Act.
>>>
>>> Have Canadian academics learned anything in light of the U.S.
>>> experience?
>>> Apparently not. The SFU Research Ethics Policy Review Task Force,
>>> Chaired by
>>> the late Ellen Gee, recommended that SFU initiate a campaign for
>>> confidentiality certificates here in Canada. What has SFU done? So 
>>> far,
>>> nothing, but we hope that will change. And, of course, SFU should not
>>> have
>>> to bear this burden alone.
>>>
>>> In 1998 the three granting councils saw fit to impose the Tri-Council
>>> Policy
>>> Statement on Canadian universities in the name of protecting research
>>> subjects. The Policy Statement recognises that Blegal and ethical
>>> approaches
>>> to issues may lead to different conclusionsB and says that Bthough
>>> ethical
>>> approaches cannot pre-empt the application of the law, they may well
>>> affect
>>> its future development.B The question now is: how much are the 
>>> granting
>>> councils prepared to walk their talk? Where is their responsibility 
>>> in
>>> ensuring that the law develops in such a way that conflicts between
>>> ethics
>>> and law are minimised?
>>>
>>> Three years ago we published an article on the ethics and law of
>>> research
>>> confidentiality in the Canadian Journal of Law and Society (URL) that
>>> ended
>>> by urging the councils to pick up the baton and press for research
>>> confidentiality certificate legislation in Canada based on the U.S.
>>> model.
>>> As far as we know, they have done nothing to this end. Perhaps 
>>> OgdenBs
>>> latest subpoena will convince them to chart a different course.
>>>
>>> OgdenBs first subpoena might have been written off as a fluke. But 
>>> this
>>> second one shows that OgdenBs research is a target. Now is the time 
>>> for
>>> every member of the academic research community to do what they can 
>>> to
>>> support OgdenBs fight to prevent the courts and the state from
>>> co-opting
>>> researchers as agents of law enforcement and witnesses for the
>>> prosecution.
>>> This open letter is a formal request to the three granting councils 
>>> to
>>> provide the requisite funds for a lawyer so that Russel Ogden is not
>>> left on
>>> his own once again to defend academic freedom and the integrity of 
>>> the
>>> research enterprise.
>>>
>>>
>>>
>>>
>>>
>> ************************************
>> Nicholas Blomley
>> Department of Geography
>> Simon Fraser University
>> Burnaby, BC V5A 1S6, CANADA
>> http://www.sfu.ca/geography/People/Faculty/blomley.html
>>
>>
>
>