Douglas Todd
SUN Ethics Reporter

SFU faces an ethical storm over research subjects

SFU has been dragged into the centre of the ethical storm by one of its former criminology students, Russel Ogden, who made international headlines in 1994 after reporting 34 Canadians had died through illegal, often-botched assisted suicides.

Ogden and several criminologists became embroiled in a prolonged feud with SFU after it failed to pay Ogden's legal fees when a Vancouver coroner asked him to reveal the identity of the people who helped kill their loved ones.

SFU recently admitted to Ogden it made a mistake, and took steps to support future researchers should they be hauled before the courts.

But criminologists like SFU's John Lowman think his university administration hasn't gone far enough. A backlog of proposed research projects is building up at SFU for lack of satisfactory commitments to confidentiality, according to Lowman and SFU Faculty Association official Rick Coe.

Lowman, for one, has been trying for more than a year to obtain a guarantee from SFU tht he can promise sources "unlimited confidentiality" when he explores why off-street prostitutes -- in escort services, massage services and body-rub parlours suffer much less violence than street prostitutes.

Although studying the criminal mind is always controversial because it places university professors and graduate students in the awkward ethical dilemma of not telling police about nefarious activity, Lowman and others maintain it can lead to a better society.

Researching the lives of Vancouver prostitutes could bring about new laws that protect prostitutes from murder, he says.

Researching Asian gang members could reveal new ways to discourage young people from being lured into lives of robbery and extortion.

Researching IRA or Sikh terrorists might pinpoint peaceful means of resolving the issues over which terrorists feel they must kill.

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Social scientists want more support

And though many would disagree, Odgen believes his research into the underground world of assisted suicide has led to a better understanding for clear laws governing euthanasia. He's told a Canadian Senate subcommittee and forums around the world his investigations could help stop assisted suicides from being conducted like abortions once were -- in grim, unregulated conditions.

For such well-meaning, if contentious, reasons, Lowman and other social scientists across the country want their universities to give them full financial and legal support in protecting the identity of their sources -- in much the same way, Lowman says, that many media outlets back their journalists.

The Ogden mini-war with SFU that started this national debate goes back more than five years.

When Ogden proposed researching the underground world of assisted suicides of people with AIDS, an SFU ethics committee initially required him to guarantee the strict confidentiality of his research subjects.

But after Ogden became the first university researcher in Canada to be called before the courts to reveal his sources, Lowman said, SFT "abandoned Ogden." SFU decided it would no longer allow researchers to grant total confidentiality to subjects. Ogden, nevertheless, continued to refuse to reveal his sources to the coroner.

The coroner, Larry Campbell, eventually decided against holding Ogden in contempt of court. But not before Ogden was out roughly $10,000 in legal fees and lost wages. He sued SFU for damages.

Although he lost his case in court early this year, the judge criticized SFU officials' handling of the Ogden case. This fall, SFU apologized to Ogden and agreed to pay his costs.

And SFU recently added to its apology by issuing an internal memo to university officials that said SFU will now provide support to graduate students who have their academic freedom threatened by outside bodies.

Ogden said SFU's lastest move is a big step for "academic freedom" in Canada. Lowman agrees.

But there's still a hitch, according to Lowman and others. They are expecting SFU to lead the way in protecting researchers and their sources from prying courts.

The SFU Faculty Association and Lowman worry that SFU's ethics research committee is continuing to inform research applicants that a court may compel them to disclose information they uncover.

Faculty associations across the country have added their voices to Lowman's complaint that such wording reflects a commitment to only "limited confidentiality," not the "unlimited confidentiality" they seek.

A promise of "unlimited confidentiality," Lowman said, would ensure that university researchers receive firm administrative support should they be called before the courts to reveal identities of criminals.

"We want SFU to say, in no uncertain terms, it will defend the confidentiality of sources in a court of law," Lowman said.

"The university has been spinning its wheels on this issue. But we're on the brink of working it out."

Until the Ogden case went to court, Lowman said, no Canadian university had been forced to come up with clearcut policies to protect researchers from paying their own legal defence costs to protect the identities of research subjects.

Canadian universities are far behind most U.S. jurisdictions, Lowman says. "Shield laws" have been established in parts of the U.S., he said, that enable researchers to refuse in court to identify the criminals drug dealers, prostitutes and other characters they interview in the name of understanding human behaviour.

Lowman wants SFU and other Canadian universities to offer researchers financial and legal backing similar to that provided by many Canadian media outlets to journalists who use anonymous sources.

Most Canadian media outlets will pay the costs of reporters whom the courts ask to reveal their sources. In many cases, says journalist Rick Ouston, author of Getting the Goods, Canadian reporters promise their confidential sources they will risk contempt of court citations and going to jail to protect their identities.

Whenever research subjects tell Lowman about a past legal act, Lowman believes he is ethically committed to hid their identities because they should not be out in jeopardy for agreeing to help a researcher.

The only time Lowman believes he is ethically required to break his promise of anonymity is if sources should reveal they were about to do "prospective harm" -- in other words, commit a specific serious crime, such as murder.

SFU's executive director, Gregg Macdonald, acknowledged the university's "sensitivity and awareness" of the importance of protecting sources in research has been heightened by the Ogden case.

In addition, Macdonald said, SFU is currently trying to respond to new ethical guidelines by Canada's three largest national research-granting bodies covering research into living human subjects.

The agencies have suggested university administrations, if they want to continue to obtain grants, must give more legal support to researchers who study illicit human behaviour. The research-granting agencies' new approach to confidentiality is in part a response to the Ogden case, Lowman said.

In response to changing policies at the three research councils, Macdonald said, SFU has set up a committee to make recommendations on a variety of research issues, including the confidentiality of subjects. The head of the committee, Professor Ellen Gee, did not return phone calls.

For his part, Lowman worries that his research project with criminologist Ted Palys into off-street prostitution in Vancouver may have already gone off the rails because of repeated delays caused by SFU's lack of firm commitment to protecting sources.

But Lowman still hopes SFU will clear the confidentiality hurdles that could get his project back on track, because more than 60 street prostitutes have been murdered in B.C. in the past 15 years.

Lowman said he believes a thorough study of the relative safety of sex-trade workers who don't walk the street could lead to a repeal of current prostitution laws he thinks needlessly endanger prostitutes.

The battle over confidentiality of sources might seem academic, bureaucratic and abstruse at times, Lowman admits. But the stakes are high.