Protecting Research Confidentiality via the Wigmore Criteria: Some Implications of Parent and Bruckert v The Queen and Luka Rocco Magnotta

Abstract

There have been two significant legal challenges to research confidentiality in Canada. The first occurred because of a Coroner's subpoena, with the researcher invoking the Wigmore criteria and winning a researcher-participant privilege. A second case saw two University of Ottawa researchers served with a search warrant for the tape and transcript of an interview they had conducted years earlier with an individual subsequently accused of murder. The researchers defended research confidentiality in Quebec Superior Court, winning a qualified researcher-participant privilege in the process. This article discusses implications of the court's decision for researchers, research ethics boards, and universities for the future defence of research confidences. All have a role to play in designing research that anticipates the court's evidentiary requirements when a claim of privilege is invoked to help ensure future jurisprudence is as favourable to research participants and as respectful of academic freedom as possible.