To report, or not report?

This blog continues my series of the Concordia University Public Scholar program posts exploring the ethics of conducting research with people who have been labeled as criminal. This blog post is not intended as legal advice and should not be considered as such.

In this iteration, I explore the complexities of navigating both legal requirements and ethical obligations related to the notion of the ‘duty to report’.

As a researcher examining the experiences of people classified as criminal, am I always obligated to report activities deemed illegal that I witness or uncover in the course of my data collection?

Reporting certain illegal activity will most likely result in breaching the confidentiality I have guaranteed to my participants. But not reporting certain activity may itself be understood as illegal. Under what circumstances should one report? What is worthy of being reported? And who is one supposed to report to? Does it have to be the police? Or should I go to my supervisor, or to the ethics office of the university? Alternatively, what if a researcher takes the ethical stance to not report any illegal activity?

Answers to these questions are not immediately clear.

A lack of clear and specific guidance

When one seeks clarity on legal and ethical issues such as these, Canadian researchers look to the Tri-Council Policy Statement, the code of ethics that governs all aspects of university research with humans in Canada.

But the code is vague on this issue, indicating that in cases of potential disclosures researchers should look to “ethical principles and/or law” and that “researchers’ conduct in such situations should be assessed on a case-by-case basis and guided by consultation with colleagues, any relevant professional body, the REB and/or legal counsel”. Furthermore the policy states:

“Researchers may face situations where they experience a tension between the requirements of the law and the guidance of the ethical principles in this Policy. In such situations, researchers should strive to comply with the law in the application of ethical principles.”

What if one’s ethical principles are in opposition to reporting illegal activity?  Depending on where you stand, this vagueness in Tri-Council policy could be understood as flexible and supportive of a range of situations as it isn’t overly prescriptive and allows for researchers to use their own judgment.

But due to lack of clear and specific guidance, and in a context of the never-ending imperative to manage risks, researchers, Ethics Review Boards, and university administrators may err on the side of caution, and as such, may have an overly broad understanding of duty to report. The result is that there may be a default to concerns of legal liability over all else.

For example, an ethnographic researcher examining the practices of drug dealers may be told by their ethics review board to go to the police if they witness an illegal incident when conducting their research. But in practice if they did, reporting illegal activity would put their project in jeopardy. If they reported witnessing drug trafficking or possession, or any other crime, they may immediately lose trust from their participants, trust that is often a long process to acquire.

Reporting the practices of their research participants could also make them an arm of the criminal justice system, and could reduce credibility in the broader project of social research.

The researcher may also personally believe that drug use and sale should not be regulated by the criminal law, and that the criminal justice system does more harm than good in such contexts. The nature of such research could mean that depending on the specific topic at hand, the researcher’s job may be to document the lives and experiences of people who are regularly breaking the laws. Doing so may require a critical eye attuned to those laws, and an understanding that laws today are not static are subject to change and open to contestation.

A researcher undertaking such research on a contentious social issue likely wants to limit instances where reporting is required so as to protect their participants.

Tensions between law and research: what to do?

Also, I understand my ethical obligation to confidentiality of my research participants as paramount, beyond what the law might say. But as a student, I also may lack institutional support or the resources to garner legal counsel, so there is even more uncertainty.

Canadian researchers who work on so-called sensitive topics such as crime, sex and drug use are not explicitly guaranteed codified legal protections, such as legal privilege, that reflect the ethical obligation to ensure privacy of research participants. So in the context of illegal activity there is a constant fear that our research could be subpoenaed and used against our research participants.

These tensions between the law and research ethics are an ongoing negotiation that researchers must often navigate on our own.

So what to do?

Look to the laws of the land and understand those that apply to you and the duty to report. It’s up to the researcher to understand the legal landscape in which their work is situated.

In Canada, there is no provision in the Criminal Code requiring anyone to report any crime they may witness. Duties to report are instead only outlined in provincial legalisation, for example, as enshrined in each province’s child protection legislation. Professionals providing services to children have a duty to report child abuse that is ongoing or is imminent. In Quebec's Youth Protection Act the duty to report is under Section 39, where it states: 

“39. Every professional who, by the very nature of his profession, provides care or any other form of assistance to children and who, in the practice of his profession, has reasonable grounds to believe that the security or development of a child is or may be considered to be in danger… must bring the situation to the attention of the director without delay.”

So researchers undertaking research with children would likely be subject to this law and would be responsible for reporting ongoing or imminent threats of harm to an identifiable child. The law doesn’t mandate that the police be contacted, but is likely that they would become involved. But this is an important distinction to make, if a Research Ethics Board has asked the researcher to go directly to the police.

Duty to report in relation to adults

For the duty to report in relation to adults it depends on the province. Quebec has no provincial legislation regarding the legal duty report imminent potential harm to an adult. Some provinces have begun to institute elder abuse reporting into law for people who provide services to elders. In Ontario, anyone suspecting elder abuse is legally mandated to report the abuse to the Ontario Ministry of Health and Long-Term Care. So again, not the police, but they will likely be engaged at some point.

The federal legal guidance in this area, rather than the duty to report, is actually better conceptualized as outlining when it is permissible to breach confidentiality in professions where confidentiality is legally protected, such as between a psychiatrist and patient. This distinction is important, because it means that the default is not to reporting, but rather to protection of confidentiality.

Based on the Supreme Court of Canada Jones v Smith decision from 1999, this course of action outlines that in some very limited instances it could be justifiable to breach legally guaranteed confidentiality if there is an imminent threat of bodily harm to an identifiable person.

In the case, a psychiatrist was tasked with interviewing a man charged with aggravated sexual assault as an expert. During the interview the man disclosed that he planned to rape and kill sex workers in the near future. The psychiatrist was concerned for the safety of the sex workers and made a sworn affidavit and then sought legal counsel on his rights to breach the man’s confidentiality. The man's defense counsel responded legally and it went all the way to the Supreme Court of Canada.

The court decided in favour of the psychiatrist and established what is known now as a "duty to protect and warn" for doctors where a public safety concern may in some instances outweigh patient-practitioner privilege.

This is the criteria the court put forward to make such a decision:    

"Three factors should be taken into consideration in determining whether public safety outweighs solicitor- client privilege: (1) Is there a clear risk to an identifiable person or group of persons? (2) Is there a risk of serious bodily harm of death? (3) Is the danger imminent?"

But does this decision only apply to people who have guaranteed legal privilege? As I mentioned earlier, researcher’s communications with their participants are not legally protected. However, many researchers believe they should be protected. Following this guidance makes sense if you believe that your participants should have their confidentiality legally protected.

Two instances to breach confidentiality

To sum things up, based on this legal landscape, there are two potential instances when a researcher is likely to be legally required to breach confidentiality and report the risk of a potential incident. These circumstances are when you discover that an identifiable child is at risk of imminent or ongoing bodily harm, or that an identifiable person is at risk of imminent bodily harm. And the researcher may be able to use their discretion around who to contact first, as the police are not always identified as a default option.

In all other circumstances researchers are able to use their discretion as grounded in their ethical principles. Having a better understanding of this legal landscape can help assist in challenging an Ethics Review Board’s more concerned with risk management than ethics and demanding that researchers report any and all activity deemed illegal.

In order to protect the integrity of projects and the confidentiality of research participants, researchers working on contentious social and legal issues are able to make a conscious choice to not engage with the criminal law in some instances for the sake of protecting their participants and their integrity as researchers. It’s a delicate dance and an ongoing reflexive process.

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