Researcher Privilege Recognized (This Time): A Comment on Parent and Bruckert v. the Queen

Abstract

Justice Sophie Bourque’s ruling in Parent and Bruckert v. the Queen is the first Canadian judicial decision recognizing a privilege for research participant information through the application of the “Wigmore” or “case-by-case” privilege criteria. As a privilege-affirming decision, the case should be of significant interest to researchers across the Social Sciences and Health Sciences disciplines. The case confirms that proper (and doubtless typical) research ethics board-mandated confidentiality procedures and protections provide a good foundation for elements of a privilege claim. It also confirms that the law is not wholly opposed to researcher interests – while the law may disrupt, it may also protect. But a key lesson of the case is that privilege will ultimately turn on the connections between particular research information and particular facts-in-issue in litigation. Legally, we are left much where we were before the decision: whether privilege will be recognized depends on case-by-case assessment. I review the facts and Justice Bourque’s reasons, then consider some issues that arise from the decision.

Keywords: researcher privilege, case-by-case privilege, Wigmore privilege

JEL Classification: I18, K19, K32, K41