Many types of vital research require protection of communication and information provided confidentially by research participants. In Canada, apart from information collected under the Statistics Act, the only option is a common law balancing test that creates uncertainty insofar as law is made after the fact. This paper explores the option of statute-based protection from the outset. It examines two such protections that have been in place in the United States for decades—revealing their strengths and weaknesses and how they may be applied in the Canadian context.

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.

This article explores whether the International Committee of the Red Cross (ICRC) enjoys testimonial privilege before Canadian courts. The authors argue that there is strong evidence to suggest that customary international law requires that the ICRC be granted a privilege not to testify or disclose confidential information in domestic court proceedings. Such a privilege, they argue, is entailed by the ICRC’s mandate to engage in international humanitarian law protection activities using confidential means. Given that customary international law forms part of the common law in Canada, the authors argue that this privilege should be recognized by Canadian courts despite its potentially uneasy fit with traditional Canadian evidence law.