To Be Free

KPU prof. Russel Ogden faces restrictions on academic freedom

By Samantha Thompson [executive editor]
& Kier-Christer Junos [coordinating editor]
With files from:
Awais Mushtaq [contributor]
& Tristan Johnston [staff writer]

A plethora of posters are taped against the window outside Greg Jenion’s office. A prominent one reads, “Where is Russel Ogden?”, while others provide background information on a case that has confused the Kwantlen Polytechnic University community for almost a decade.

Jenion, a KPU criminology faculty member, says students have been producing these posters, and doing presentations in their classes asking about Ogden’s whereabouts.

Ogden has a complicated relationship with Kwantlen Polytechnic University. The criminology and sociology professor has held a full-time faculty position since 2008, and last year he was paid more than $87,000 — though, he hasn’t taught a class in more than five years.

In Canada, Ogden was the first researcher to be subpoenaed and have their confidentiality threatened in a courtroom. Ogden researches assisted suicide, and has a detailed history where he has had to fight to protect the anonymity of his subjects on four occasions, against the threat of subpoenas by the B.C. Coroner’s office and Crown Council. He has so far been successful in each instance, but this confidentiality agreement is limiting his relationship with KPU.

Faculty have asked if Ogden could come in and speak to their classes, as a world-leading researcher and scholar in the field. Their requests have been denied. It seems he isn’t allowed on campus as a result of a confidentiality agreement signed by KPU, the Kwantlen Faculty Association and Ogden.

“But by all appearances what’s troubling about that is we have a non-disclosure agreement that seems to work contrary to the public interest, and the public trust and academic freedom.”

“This is a very serious violation of those lecturers’ academic freedom to teach,” says John Lowman, an SFU criminology professor involved with Ogden’s case. “It’s disgraceful.”

“The [confidentiality] agreement is really shrouded … in confidentiality and secrecy,” says Jenion. “But by all appearances what’s troubling about that is we have a non-disclosure agreement that seems to work contrary to the public interest, and the public trust and academic freedom.”

Ogden’s case isn’t new. It dates back to 2008, when KPU restricted Ogden’s research, and carries through 2011 when he essentially disappeared, according to Jenion. Now in 2015, the Ogden case is dealing with three central issues: that of academic freedom, that KPU allegedly isn’t lending adequate legal support to Ogden, and that Ogden remains on payroll despite the limitations of the confidential agreement.

“If there’s a legitimate answer for what’s going on here, let’s hear it,” says Jenion. “But from all appearances, and what it looks like now, something is very, very wrong.”

“Here there is secrecy,” says Lowman. “There is only secrecy when there is something to hide.”

The confidential agreement

The confidential agreement currently in effect between KPU, the KFA and Ogden prevents Ogden from speaking on issues like whether or not his situation is an example of censorship at KPU, what the confidentiality agreement is about, and whether or not he is allowed on campus.

Earlier this month, Ogden was Skyped into a sociology class to speak about his work. But the confidentiality agreement also prevents him from discussing his thoughts on not being able to discuss his research in a course setting.

“I’ve enjoyed teaching and I have taught recently,” he says. “Last year I taught a Masters-level course in criminology at the University of Ottawa … so I have had the opportunity at some universities, and I have also given lectures to university audiences … so I do have opportunities to teach.”

However, he cannot teach at the institution he’s paid to be a part of.

In a statement, Marlyn Graziano, KPU’s director of external and government affairs, said: “Kwantlen Polytechnic University has a longstanding commitment to the protection of academic freedom, and to the provision of support of its researchers consistent with the Tri-Council Policy Statement.” She adds that the 2011 agreement prohibits discussions issues raised regarding Ogden’s employment relationship with KPU.

“The agreement between Mr. Ogden, the KFA and KPU requires all parties to keep its terms strictly confidential. KPU will accordingly not be commenting further about this matter.”

“Kwantlen students are not allowed to hear one of their very own that is a world leading researcher on the subject,” says Jenion. “I just don’t think the general public or the Kwantlen students, that that’s in their interest. And I’m kind of surprised there’s not more outrage.”

In 2008, students were angry, according to Ashley Fehr, who was then the KSA’s Director of Academic Affairs.

“Ground-breaking research, research that has the ability to change laws and policies, tends to be polarizing,” she says. “Students were looking forward to hearing from an instructor from their own institution who was working on such an issue, and how to move forward when faced with such pushback.”

Jenion and some other faculty members are looking to hold a forum to continue to ask questions.

“Where is Russel Ogden? What has been done in this case? And why, by all appearances, does it look like we’re not acting in the public interest, in the public trust, or in the interest of academic freedom?” he asks. “This is not an intelligence agency… This is a public institution. We’re public servants. Why, what could we be talking about that is so bad? That this type of silence or secrecy is needed?”

KPU geography professor Bill Burgess points out that Ogden hasn’t been fully censored because he is still able to publish his work elsewhere, but, “It’s a censorship chill on everyone here, because the object lesson is there. If you do research that doesn’t meet the approval of Kwantlen’s senior administration, they will counterman the decisions of the research ethics board … so what does that say to other people who work at Kwantlen, who might be considering pursuing one of these cutting edge, but controversial and charged research areas?”

“One of my other colleagues told me, ‘I feel like there’s a target on my back.’”

Current issue of academic freedom

Ogden has attended multiple suicides and assisted suicides. He promises his research subjects anonymity, but there have been multiple occasions where Ogden has been subpoenaed by the B.C. Coroner’s office or Crown Council, as a witness to these deaths.

One such subpoena placed Ogden’s research back into the spotlight: Lowman filed a complaint with the Secretariat on Research Ethics against KPU, accusing the university of non-compliance with components of the Tri-Council Policy Statement: Ethical Conduct for Research Involving Humans.

Early in 2014, the B.C. Coroner’s office sent Ogden a subpoena requiring him to attend a Nov. 13 examination into a death he witnessed during his research.

On Nov. 1, Lowman and Ted Palys, another SFU criminology professor, sent a letter to KPU’s president Alan Davis. The letter states that the two professors are contacting Davis due to “the serious problems with the administration of Kwantlen’s research ethics policy in recent years,” and Ogden’s experience at SFU in 1994, when the university administration failed to support him in Coroner’s Court.

The Tri-Council Policy reads that researchers are to safeguard information entrusted to them; and that institutions support their researchers in maintaining confidences. Also, researchers are entitled to legal advice from the institution. Lowman and Palys pointed out that if Ogden is a KPU employee, he was entitled to their support in the case.

Davis, in his response, pointed out that KPU is “committed to providing support to its researchers, consistent with the Tri-Council Policy Statement.” He also adds that the issues raised in their letter are governed by the confidential agreement.

On Dec. 10, Lowman filed a complaint with the secretariat of ethics, suggesting that KPU was in violation of the Tri-Council policy statement. He cites an earlier instance involving Ogden, in 2003 and 2004 in the case of Evelyn Martens. Martens was charged by authorities with aiding and abetting a suicide, and Ogden resisted both subpoenas, as did KPU in 2004. Until this point, Ogden’s research proposals were submitted to KPU’s Research and Ethics Board.

At a recent case at the University of Ottawa, the Tri-Council policy was interpreted as a result of the university not showing up in a courtroom for two researchers when an interview was seized by police. According to Lowman, “The granting councils said that universities must defend confidentiality in court.”

“In the case of Ogden’s recent subpoena, KPU didn’t show up to the courtroom to provide support,” says Lowman. This is potentially in violation of the Tri-Council Policy. As a result of his complaint, the secretariat is currently examining the nature of the complaint and then will decide whether to get an external investigator to look at it. If Kwantlen loses its good standing with the Tri-Council, it will jeopardize access to grants for faculty members pursuing research requiring ethical review.

Lowman says if the secretariat sees no policy violation, he “would find some way of taking action against the secretariat, because they would have to say that ‘black is white,’ to reach that conclusion.”

“If I am right about what this secret agreement must contain,” says Lowman, “It would be impossible I think for the secretariat to find that there has not been a very serious violation of policy by Kwantlen.”

An ongoing battle

Ogden’s struggle with defending his research at KPU began in 2005, when things became more complicated. Ogden submitted a proposal to attend assisted suicides and Nutech deaths, and the KPU REB approved his attendance at multiple deaths, with an ethics certificate with no expiry date. However, in 2006 Ogden was told at a meeting that he was not to engage in illegal activity, including an assisted suicide. It marked the first time a Canadian university had ordered a researcher to stop REB-approved research.

According to Lowman, Ogden hasn’t taught a course at KPU for more than five years, but he is still being paid the same amount as when he was teaching.

“What is Kwantlen paying him to do? He’s never on campus, so it can’t be administrative duties,” says Lowman. “So what is it that Kwantlen is using taxpayer’s money to pay Ogden for?”

In 2008 students were also involved, with the Kwantlen Student Association writing a letter to the university administration, requesting that KPU reconsider its decision to stop Ogden’s research, suggesting that it was violating academic freedom.

“The KSA maintains that academic freedom must include the freedom to teach, research, and publish, and to address public (and sometimes controversial) issues without fear of institutional penalties or hindrances,” the letter read. The KSA also passed a policy, in effect until 2011, supporting Ogden’s efforts and research, and that they would urge KPU administration to allow Ogden’s research to continue as planned.

“We felt if the administration wouldn’t stand behind Ogden, they were unlikely to stand behind students who wanted to research controversial topics,” says Fehr. “We wanted to make sure students knew that they had a place to do their research–that we supported their academic freedom.”

“Universities do not know how to deal with cutting edge research of this sort,” says Lowman. “They’re the people who should know, but they’re too worried about image, and impression management. They’re too worried about getting a bad name … [and] that the next corporate dino won’t give them money. They’ve forgotten what a university is all about.”

While neither the sociology or criminology departments list Ogden as faculty on their websites, Jenion contacted Kwantlen RED chairperson Kyle Matsuba in Nov. 2014. Matsuba told Jenion that he had been appealing for response, to no avail, from senior administration regarding Russel Ogden’s employment status.

Ogden’s research is subject to REB review and oversigning if he’s an employee. But if he’s an independent researcher, then the work is not KPU’s responsibility. In interviews, Ogden frequently refers to KPU as his employer, and he is a member of the KFA (as all faculty are), meaning that the KFA serves as his representative and uses their legal counsel on his behalf.

Lowman suggests that Kwantlen is trying to avoid its responsibilities by classifying Ogden’s research as independent research. “If that is correct, Kwantlen is in a very, very serious position because they’ve aggregated its duties under national research ethics policy.”

With the confidentiality agreement looming over any discussions surrounding Ogden, KPU could be a long way off from addressing the issues in his case.

In the meantime, faculty and students alike will continue to ask, “Where is Russel Ogden?”