Day 8 - Lawyers Fight, Evidence Comes to Light

Day eight of the trial began with lawyers arguing various procedural issues. Justice Riordan asked Imperial Tobacco's legal team if they had reconsidered their position from yesterday about not consenting to admit a newspaper article. Lawyer Suzanne Côté said Imperial was prepared to admit that the article was published, provided it was not admitted that the words in quotation marks in the article were actually spoken to the journalist by the persons reportedly quoted.

This would still have prevented the plaintiffs from questioning Imperial's former Director of Public Affairs, Michel Descôteaux, on his quote in the article, since Mr. Descôteaux testifed yesterday that he did not remember the interview, so the plaintiffs will still need to subpoena the journalist to get the quotes into the record in order to be able to question Mr. Descôteaux about his quote.

The lack of collegiality continued among the lawyers as plaintiff lawyer Bruce Johnston set about questioning Mr. Descôteaux on the issue of document destruction. Mr. Descôteaux testified that he first heard about the issue in 1998 when the Non-Smokers' Rights Association (NSRA) publicly accused Imperial Tobacco of having destroyed documents. He said that he quickly issued a press release denying it.

Mr. Johnston began questioning Mr. Descôteaux about the press release, prompting Imperial lawyer Deborah Glendinning to complain that the press release should be put in front of Mr. Descôteaux to help him remember what it said. Mr. Johnston told the court that the plaintiffs did not have the press release, and carried on questioning Mr. Descôteaux. A few minutes later, Ms. Glendinning interrupted again to announce that Mr. Johnston had been wrong and Imperial did in fact disclose the press release, even quoting a control number for it.

"We don't have that," piped up plaintiff lawyer André Lespérance, "did you claim privilege on it?"

"Why do we have a control number that shows up nothing?", added Mr. Johnston looking over his colleague's shoulder at a computer screen.

"We're sending it to Mr. Lespérance right now," said Ms. Côté for Imperial. Later, Ms. Glendinning promised to give the court a full explanation of how this document (exhibit 57) had not been disclosed to the plaintiffs.

The comments from both sides got somewhat confrontational after this, finally prompting Justice Riordan to admonish both sides to tone things down. "We're going to be in very close quarters here. It's not exactly a submarine, but it's close," the judge said.

"We have to re-establish a serene atmosphere," Justice Riordan went on to say.

Ms. Glendinning replied that she was offended that Mr. Johnston had accused her earlier of abuse of process. Justice Riordan replied by explaining to her that, in the Quebec Civil Code, abuse of process is a technical administrative term and that she was reading more into it than she needed to. The judge said that he took Mr. Johnston's comments as administrative in nature in the context that Mr. Johnston has already given the court notice of his intention to bring a formal abuse of process motion at a later time.

The section of the Quebec Civil Code that Justice Riordan was referring to was section 54.1, which says:

A court may, at any time, on request or even on its own initiative after having heard the parties on the point, declare an action or other pleading improper and impose a sanction on the party concerned.

The procedural impropriety may consist in a claim or pleading that is clearly unfounded, frivolous or dilatory or in conduct that is vexatious or quarrelsome. It may also consist in bad faith, in a use of procedure that is excessive or unreasonable or causes prejudice to another person, or in an attempt to defeat the ends of justice, in particular if it restricts freedom of expression in public debate.

Justice Riordan's admonishments for more collegiality seemed to have no impact when, minutes later, Mr. Johnston tried to admit two letters signed by Simon Potter (now counsel for Rothmans, Benson and Hedges (RBH) but then counsel for Imperial Tobacco) into evidence. To that point in the morning, Mr. Potter had moved from his usual spot among the industry lawyers to a seat in the public gallery of the courtroom, his finger tapping away at his iPad and his eyes rarely glancing up from the screen. Now Mr. Potter returned to his usual seat and told the court that neither he nor RBH objected to Mr. Johnston admitting the letters into evidence.

Imperial Tobacco and JTI-Macdonald, however, did object, forcing Mr. Johnston to go through the formality of calling Mr. Potter to the witness stand to validate the letters as evidence. "I have no reason to doubt that this is a copy of what was written then," Mr. Potter said, finally enabling his two 1992 letters to British American Tobbaco (BAT) concerning Imperial Tobacco's destruction of various documents to be admitted as exhibits 58 and 59.

"Is there no cross-examination?" asked Mr. Potter, turning theatrically to the Imperial Tobacco lawyers once this formality was over with. The tension in the room was such that the joke fell flat except for a chuckle from the author of this blog and few grins from the federal government lawyers sitting quietly at the back.

The atmosphere did not improve at all in the afternoon when Ms. Glendinning rose to address the court on the issue of scheduling Roger Ackman's testimony, starting April 2. She emphasized Mr. Ackman's frailty and expressed concern that he might not be able to handle the kinds of procedural delays that have characterized Mr. Descôteaux's testimony. However, when Mr. Lespérance rose at the end of the day to propose an expedited process to admit documents, which would not only speed up the trial but spare Mr. Ackman from having to wait through the process of validating each document on the witness stand, the industry lawyer's scoffed at Mr. Lespérance's suggestion.

The logical implication of the tobacco industry lawyers' refusal of Mr. Lespérance's suggestion is that, though they are concerned about Mr. Ackman's health, they would rather the plaintiffs simply do without evidence than stop objecting to documents at every possible opportunity for Mr. Ackman's sake. No doubt the plaintiffs do not wish to sacrifice their case by allowing evidence to fall by the wayside. Justice Riordan urged the sides to try to find a compromise before Mr. Ackman takes the stand on April 2nd.

Document Destruction
For a short time, the Michel Descôteaux of the first few days of the trial, whose testimony was filled with colourful stories, returned when Mr. Johnston was questioning him about the document destruction issue. Mr. Descôteaux remembered getting a call from a journalist at 10 or 11 in the morning asking for a comment on a breaking story that the NSRA had accused Imperial Tobacco of dstroying documents. The NSRA had obtained copies of Mr. Potter's letters to BAT.

Mr. Descôteaux remembered running from his third floor office to Roger Ackman's office to ask him about it. But his memory seemed to fade once asked about what happened after he got to Mr. Ackman's office. He could not recall whether it was Mr. Ackman or someone else who told him the things that went into the press release. He could not recall if he spoke to Mr. Potter that day. He could not recall if he even thought about speaking to Mr. Potter, who the NSRA alleged had destroyed the documents. He could not explain any of the statements in the press release, such as what Imperial Tobacco meant that the destroyed documents were "readily available", to whom they were "readily available", and whether the use of the qualifying words "for the most part" meant some of the documents were, in fact, not readily available.

Project Four Seasons
After he finished examining Mr. Descôteaux on the document destruction issue, Mr. Johnston moved on to an exchange of letters in 1989. On January 12, 1989, PJ Fennell of RBH wrote to Imperial Tobacco President Jean-Louis Mercier concerning the role of the Canadian Tobacco Manufacturers' Council (CTMC) in various industry-wide initiatives (exhibit 60A). Five days later, Mr. Descôteaux wrote to Mr. Mercier, his boss, critiquing Mr. Fennel's proposals (exhibit 60).

Regarding something called the "Four Seasons Project", Mr. Fennel wrote to Mr. Mercier:

The Four Seasons project, as well as the Bill C-51 litigation, has already been well managed by the individual companies with necessary coordination through the communication of the lawyers representing the companies

In response to this, Mr. Descôteaux wrote to Mr. Mercier:

[translation]As I recall, the CTMC is not part of this project, apart from Neville himself, and his involvement is relatively modest

Although Mr. Descôteaux once knew enough about the "Four Seasons Project" to write to Mr. Mercier about what Bill Neville's level of involvement was, when asked about it by Mr. Johnston he said he could not now remember what it was.

Mr. Johnton then said to Mr. Descôteaux: "I suggest to you it was a project to prepare for anticipated product liability litigation".

Mr. Descôteaux replied: "Now that you mention it, it has to do with legal considerations. Now that you menton it, that rings a bell. But in what way, I don't remember."

The voluntary adoption of cigarette adversiting restrictions by the industry was successful in preventing the enactment of much more stringent federal legislation

In the afternoon, Mr. Johnston confronted Mr. Descôteaux with a memo he wrote in 1979 setting out his vision for how to structure the advocacy work of the CTMC (exhibit 66). Among Mr. Descôteaux's statements in this memo were:

The voluntary adoption of cigarette adversiting restrictions by the industry was successful in preventing the enactment of much more stringent federal legislation. Are there some other moves that the industry could make that would reduce the pressure to pass these anti-smoking bylaws? How about smokers' education programs?

and

if Halifax did adopt an anti-smoking bylaw, what could we do to reduce its impact on other municipalities in N.S.? in the other Maritime Provinces? The Non-Smokers Rights Association has repeatedly said that one of its major objectives for the immediate future was the promotion of smoking bans or restrictions in the workplace. What can we do about this?

and

The objective of this strategy would be to have a local battle fought on local grounds by local people in order to avoid leaving the impression that it is the multinationals that are fighting the battle.

After introducing this memo, Mr. Johnston asked Mr. Descôteaux if his job included trying to prevent municipal smoking bylaws.

"Prevent them or make them more reasonable for smokers," Mr. Descôteaux replied.

"Less stringent if possible?" Mr. Johnston asked.

"Yes," said Mr. Descôteaux.

The trial will resume on April 2 with a new witness, former Imperial Tobacco Vice-President of Legal Affairs Roger Ackman. Mr. Descôteaux will likely be recalled at some future time to answer further questions once the admissibility of the newpaper article, and other documents relevant to him, is resolved.

A new guest contributor will pick up this blog on April 2.

By Michael DeRosenroll for Cynthia Callard

Day 7 - Industry objections intensify

Day 7 of the trial began with Mr. Descôteaux excluded from the courtroom as the lawyers spent half an hour debating whether the plaintiffs should be allowed to continue questioning him on Imperial Tobacco's use of the courmarin as an additive.

Plaintiff-side lawyer André Lespérance referred Justice Riordan to numerous documents that are not yet part of the trial record but which the plaintiffs plan to raise later concerning the alleged use of coumarin as an additive by Imperial Tobacco. Imperial lawyer Deborah Glendinning interupted repeatedly to complain that the judge should not rely on these documents because they are not yet evidence, but Justice Riordan made a distinction between whether they are evidence as to the merits of the case versus whether they could be used to determine whether questions to Mr. Descôteaux would be relevant to the case. He allowed the questioning to proceed.

In a non-sequiter to this discussion, Rothmans, Benson and Hedges (RBH) lawyer Simon Potter rose to complain to the court that this blog referred to coumarin as rat poison yesterday. “It is not rat poison!” he declared emphatically.

It is currently unclear whether the distinction between whether coumarin is a rat poison or not will be a relevant issue in the outcome of the trial. Should it be relevant to the outcome, then clearly its proper characterization will be disputed. What came to light from today's evidence was that Imperial Tobacco also takes issue with the characterization of coumarin as rat poison, on the basis that being the active ingredient in some rat poisons is not same thing, in Imperial Tobacco's view, as being rat poison per se.

Mr. Johnston spent most of the morning questioning Mr. Descôteaux on various documents prepared to respond to questions on Imperial Tobacco's use of additives. Mr. Johnston spent the most time comparing the final version of a question and answer document that Mr. Descôteaux sent to Imperial President Jean-Louis Mercier on May 2, 1985, (exhibit 47) with a draft version of the same document dated two days earlier (exhibit 50). The earlier draft contained many handwritten changes in handwriting that Mr. Descôteaux admitted was his own.

Almost all of Mr. Descôteaux's handwritten changes to the draft were made to the final version, including completely striking out a talking point that would have denied that Imperial added nicotine to any of its products. Mr. Descôteaux said he had no recollection of why he made any of the changes.

At this stage of the trial, little evidence has been led on what the health effects of using coumarin, or other additives, in cigarettes would be. The main issues of the morning were what Imperial Tobacco knew and what it told the public about additives.

An objection-filled afternoon

The afternoon court session began with Ms. Glendinning rising to discuss witness scheduling matters, then to complain about the fact that Mr. Descôteaux's testimony has gone on much longer than the plaintiff-side originally estimated. Mr. Johnston assured the court that Mr. Descôteaux's testimony would end on Thursday.

After complaining about how long Mr. Descôteaux's testimony was taking, the tobacco industry lawyers then used up a significant part of the afternoon session on objections. The most noteworthy of the objections came when Mr. Johnston tried to introduce a newspaper article in which Mr. Descôteaux was quoted. However, since Mr. Descôteaux could not recall giving the interview, the industry lawyers objected to entering the article into evidence.

Mr. Johnston noted that lawyers normally consent to admitting newspaper articles, since the fact that they were published can be verified online, but the industry lawyers refused to consent to this. This means the plaintiffs will likely have to subpoena the journalist who wrote the article to establish the fact that he interviewed Mr. Descôteaux, then recall Mr. Descôteaux at a future time to question him about his reported comments. Mr. Johnston called this "perfectly abusive" on the part of the industry. Even when Justice Riordan assured the industry layers that he would not consider the article proof of the truth of its contents, but rather only consider it proof that the article had been published, which would have enabled Mr. Johnston to then question Mr. Descôteaux on his comments, the industry lawyers would not change their position.

The witness didn't answer the question clearly when he was asked before, perhaps that's why he's being asked again

Another document that elicited a number of industry objection, although this one was admitted into evidence, was a 1974 British American Tobacco "Group Smoking and Health Policy document" (exhibit 54A). The tobacco industry lawyers repeatedly objected to Mr. Johnston's attempts to question Mr. Descôteaux on the contents of the document on the grounds that Mr. Johnston had already asked Mr. Descôteaux about the same issues. This led Justice Riordan to say at one point: "The witness didn't answer the question clearly when he was asked before, perhaps that's why he's being asked again. I'll permit the question."

Among the guidelines set out in this document were "Warning notices in advertising should be resisted as long as possible" and "If Governments insist on warning notice on packs the wording should make it clear that is emanates from a Government source".

Suggesting lower "tar" and nicotine cigarettes as an alternative for those employees who cannot or do not wish to stop smoking

Toward the end of the day, Mr. Johnston questioned Mr. Descôteaux on a report he submitted to British American Tobacco in March 1981 "covering smoking and health developments in Canada" in the fourth quarter of 1980 (exhibit 56A). Among other things, Mr. Descôteaux's report that the Quebec government was planning an "intervention to discourage smoking" and that the Canadian Tobacco Manufacturers Council (CTMC) was planning a lobbying campaign to oppose some of the proposals.

The report also summarized Imperial Tobacco's efforts to influence an employee "anti-smoking educational campaign" undertaken by Alcan Aluminum Ltd., which Mr. Descôteaux called "Canada's major aluminium producer - and an important Imperial Tobacco supplier." Mr. Descôteaux's reported that, after Imperial made contact with an Alcan official, the official expressed an interest in "suggesting lower "tar" and nicotine cigarettes as an alternative for those employees who cannot or do not wish to stop smoking."

While questioning Mr. Descôteaux about the CTMC's lobbying in Quebec, Mr. Johnston asked Mr. Descôteaux if there were ever proposals to discourage smoking that went unopposed by the CTMC.

"Nothing comes to mind," replied Mr. Descôteaux, although he insisted that there might have been.

Tomorrow will likely see the end of Mr. Descôteaux's testimony for now, but he may now need to be recalled in light of the industry lawyers' refusal to admit the newspaper article objected to today.

By Michael DeRosenroll for Cynthia Callard

Day 6 - Mr. Descôteaux's own words

Day five of Michel Descôteaux's marathon testimony came to a climax in the morning when plaintiff lawyer Bruce Johnston started questioning him on documents that Mr. Descôteaux himself had authored.

In previous days, most of the documents Mr. Johnston questioned Mr. Descôteaux about were ones sent to Mr. Descôteaux by others. The pattern of Mr. Descôteaux's responses has been to admit little or no recollection of ever seeing the documents, usually admitting that if he is listed as a recipient he probably got them, and then talk at length about his recollection of what Imperial Tobacco's public positions were and about his role in the company's public relations. The length of Mr. Descôteaux's answers has already extended his testimony two days longer than originally scheduled.

Other than a few contradictions, notably his statement yesterday that the Supreme Court of Canada's unanimous 1995 assertion that it had been proven beyond a reasonable doubt that smoking causes many diseases was "nothing new", an assertion he backtracked from when confronted with Imperial Tobacco's contradictory public position, Mr. Descôteaux has remained relatively consistent about what facts Imperial knew and what it's public positions were. He has rarely varied from the public positions he was primarily responsible for communicating for decades, even when confronted with contradictory internal documents, instead denying knowledge of the documents and insisting that there must be some explanation for the contradictions.

This dynamic changed significantly when Mr. Johnston began confronting Mr. Descôteaux with documents he authored himself. The long rich anecdotes that had previously characterized Mr. Descôteaux's answers became scarce. His answers became shorter and shorter, often reduced to monosyllabic "yes"es and "no"s. The pattern of not having any memory of the documents being put in front of him continued, but gone were the lengthy explanations why this would be the case. Throughout the questioning, Mr. Descôteaux hardly ever looked up from the documents in front of him, rarely glancing at Mr. Johnston standing to his left.

Influencing Overall Tobacco Consumption
One of the first documents Mr. Descôteaux had so little to say about was a 1995 memo he sent to a then-new executive, Mike Courtney, entitled "Corporate Affairs Objectives, Priorities and Organization"(exhibit 38). The memo, Mr. Descôteaux wrote in the introduction, reflected the input of other senior executives.

Under the heading "consumption", after reiterating Imperial Tobacco's public position that they did not try to influence individual decisions to smoke or not, Mr . Descôteaux wrote:

This position, however, does not preclude - nor should it preclude - ITL from getting involved into issues that may have more or less of an impact on the overall size of the market. For example, government taxation policies can have a bearing on the overall size of the market, although our best research shows that it is marginal at best. Similarly, smoking bans and restrictions mayor may not have a bearing on the amount smoked daily by the individuals that are affected by them. What is important to distinguish here, is whether our actions are directed at the individual decision per se or whether they are directed at the environment globally.

Identify Possible Controversial Material and Prepare a Position
Mr. Johnston then spent a significant amount of time questioning Mr. Descôteaux about a memo he received in 1988, labelled "draft", entitled "Public Relations Plan Liability Litigation" (exhibit 40). Although Mr. Descôteaux was not the author of the memo, there are many handwritten notes on it that he conceded were his handwriting.
The 14-page memo set out an extremely detailed public relations plan for dealing with anticipated product liability litigation, to which Mr. Descôteaux added further detail with his notes, such as "identify possible controversial material and prepare a position" below a recommendation to create case specific backgrounder papers. The document also recommended close collaboration between lawyers and public relations staff, since it recommended using lawyers as key company spokespeople during trials.
Mr. Descôteaux insisted he had no memory of this document and that it had never been acted on by Imperial Tobacco. However, other exhibits showed that he would later cite product liability litigation as the primary public relations challenge facing the company (exhibits 38 and 39) and he would later recommend creating "the creation of a small legal/pr task force for long-term handling" of product liability litigation (exhibit 38, item 2.5.1).
Increase per capita Usage in Canada

In 1994, Mr. Descôteaux co-authored, along with Bob Bexon and Bill Sanders, a memo to Imperial's Management Commitee called "Re: Public Policy Objectives". In it, they outlined a list of possible public policy objectives to be discussed at a future meeting. One of the objectives under consideration was to "Increase per capita Usage in Canada".

"To do this", Mr. Descôteaux and his co-authors wrote, "means that, in some combination, we will have to get more people to start ... make less people quit ...or increase the rate of daily usage among existing smokers."

Lobbying re: plain packaging and sponsorships

Also in 1994, Mr. Descôteaux wrote a memo to Bob Bexon outlining his suggestions for lobbying against plain packaging of tobacco products and tobacco sponsorship prohibitions. Mr. Descôteaux wrote: "...the objective should be to mobilize huge numbers of people into some form of action so as to deluge the government with individual and collective expressions of protest." (emphasis in original)

This tobacco industry lawyers objected strenuously to the admission of this document as evidence because it has extensive handwritten annotations and the author of these annotations was not established. Justice Riordan ultimately allowed Mr. Descôteaux's typed portion to be admitted (this is quoted from above) but reserved a decision on the admissibility of the handwritten notes until later in the trial. A clean copy of the memo, without the handwritten notes, will be made available in this space when possible, pending Justice Riordan's ruling on the admissibility of the annotations.

Boston Tea Party II

In 1991, Mr. Descôteaux circulated a memo to Imperial Tobacco's senior management with talking points on a forthcoming anti-tax initiative from the Canadian Tobacco Manufacturers' Council (CTMC) (exhibit 45). Mr. Descôteaux represented Imperial Tobacco on the CTMC. The memo called the campaign, which involved attempting to mobilize millions of individual smokers to lobby government, as well as retailers, tobacco growers and others, the "Boston Tea Party II".

Talking about this campaign was the one time in the day in which the Mr. Descôteaux of the last several days, with his long answers, seemed to return. He described in detail how packages were printed with postcards to the Prime Minister that people could sign and send without even needing to a add stamp. This led him to one of his characteristic tangents on how the Parliamentary "Frank" works (this is the term for the free mailing system to and from Members of Parliament through Canada Post).

When Mr. Johnston asked Mr. Descôteaux if there was a big response to the campaign, Mr. Descôteaux looked up from his papers, grinned at Mr. Johnston and said "He got zillions of them, zillions" (referring to the Prime Minister).

Industry Objections

The industry lawyers raised numerous objections thoughout the day's testimony, managing to delay or prevent some evidence from being admitted. Every time Mr. Johnston raised plain packaging or contraband, the industry lawyers objected strenuously. At one point Mr. Johnston referred to them as a tag team for the way they would take turns objecting on the same issues.

On contraband, the industry lawyers repeatedly challenged its relevance. JTI-Macdonald's counsel argued that raising contraband as an issue amounted to the plaintiff amending their pleadings, to which Mr. Johnston replied that the industry's efforts to obstruct tobacco control measures had already been pleaded to. This would make the industry's actions on contraband relevant to the extent that they obstructed tobacco control. Rothmans, Benson and Hedges lawyer Simon Potter twice warned that getting into contraband would turn this from a two-year trial to a four-year trial because he is prepared to go into great detail on the matter. Ultimately, Justice Riordan allowed Mr. Johnston to put questions to Mr. Descôteaux about Imperial Tobacco's public positions on contraband and taxation levels. The relevance of contraband as an issue in the trial will likely continue to be disputed by the industry lawyers every time it comes up.

The day ended with a lengthy argument over industry objections to the admission of documents concerning the use coumarin, a rat poison, in cigarettes in Canada. As the lawyers argued, Cecilia Létourneau, the representative plaintiff in the addicition clawsuit, who has sat quietly at the side of the courtroom throughout the process, leaned forward in her chair with her hands pressed pensively over her mouth. Justice Riordan admitted one document concerning coumarin, a 1985 Q&A that Mr. Descôteaux wrote for senior Imperial Tobacco executives concerning the use of additives in cigarettes generally that briefly mentioned coumarin (exhibit 47), and reserved his decision on others pending more arguments from the lawyers tomorrow.

Mr. Johnston never did get to the document destruction questions he was cut off from asking at the end of the day Monday, though he could still get to them tomorrow, which is scheduled to be Mr. Descôteaux's last day of testimony.

By Michael DeRosenroll for Cynthia Callard

Day 5 – What Imperial Tobacco Said, and When

The first “extra” day of Michel Descôteaux's testimony began with plaintiff lawyer Bruce Johnston notifying the court that Descôteaux's testimony will likely need to be extended by yet another day. Originally scheduled to testify for three days, and already extended to five in light Mr. Descôteaux's penchant for long answers, Mr. Johnston advised the Court that his team had just finished going through over two thousand newly disclosed documents provided to them by Imperial Tobacco on the Friday before the trial and found approximately fifty relating to Mr. Descôteaux that they might need to question him on. Justice Riordan left the question open as to whether Mr. Descôteaux's testimony would be extended to Wednesday or whether he would be asked back another time, but jokingly reassured Mr. Descôteaux that he would try get him out before golf season starts.

Mr. Johnston then spent the bulk of the day going through what Mr. Descôteaux called the evolution of Imperial Tobacco's view on the health effects of smoking over Mr. Descôteaux's thirty-five year tenure in the public relations department. Mr. Descôteaux said he could not remember specific dates of specific changes, but when asked by Mr. Johnston to describe the evolution in broad strokes he said:

When I joined Imperial, in the early years our position was focused on whether smoking was associated in a causal manner with various diseases. When I left, the position was that smoking was causally associated with lung cancer and other diseases that I can't remember. In between there was a time we said smoking was associated with health risks.

Added Mr. Descôteaux: “Someone could map out these changes going through the different newspaper interviews and radio interviews.”

But questions began to arise when Mr. Johnston began to do this by going through a series of documents with Mr. Descôteaux. Early on, Mr. Johnston had Mr. Descôteaux read a portion of the 1995 Supreme Court of Canada decision striking down the 1989 ban on tobacco advertising in which Justice LaForest wrote, speaking on this issue for a unanimous Court:

Smoking causes about 30% of all cancer deaths, 30% of all coronary heart  disease deaths and about 85% of all chronic bronchitis/emphysema deaths in  Canada and United States. In addition, smoking is a major cause of deaths due to aortic aneurysms, peripheral artery disease and fires. There is growing evidence that smoking is also an important cause of deaths due to stroke. In terms of the scientific evidence available, the causal role of smoking in the major diseases described above is firmly established beyond all reasonable doubt.

About this passage, Mr. Descôteaux said: “There's nothing new in there. We were aware of all that. What we were challenging was not the smoking and health elements but rather whether the ban violated our constitutional rights.”

“Are you saying there was nothing new in that is was established beyond a reasonable doubt?”, Mr. Johnston followed up.

“Is that not what I said? The Isabelle Commission said that back in 1969”, Mr. Descôteaux
replied.

However, as Mr. Johnston went on to introduce numerous documents from 1976 through 1994 indicating that Imperial Tobacco's public position remained that causation between smoking and various diseases was a matter of scientific controversy, Mr. Descôteaux backtracked. “In my mind, there was a scientific controversy”, he said.

“But you said [a consensus] went back as far as the Isabelle Commission, do you want to correct that?”, Mr. Johnston followed up.

“I don't know what the position of these companies was that far back. It may have been the same. I don't know,” Mr. Descôteaux replied.

The earliest document Mr. Johnston introduced in which Imperial Tobacco acknowledged a causal link between smoking and any diseases was 1998 (exhibit 34). When asked, Mr. Descôteaux could not think of any earlier ones than this, but said he could not rule out that there were some he had forgotten.

Poor Audio Quality Throws Admissibility of Some Evidence into Question

Mr. Johnston actually tried to extend the timeline back as far as 1969 but was not able to get a radio interview from that year entered into evidence. The industry lawyers successfully objected to Mr. Johnston introducing a transcript of the recording, even though it had been made by court stenographers, but Justice Riordan consented to allow Mr. Descôteaux to listen to the recording to see if he recognized the voice of the speaker, whom Mr. Johnston claimed was then-Imperial Tobacco President Paul Pare.

Mr. Descôteaux made a first attempt in the morning, listening through a laptop computer's tiny speakers, but could not identify the voice on the very poor quality recording.
The recording was played again in the afternoon, this time through the courtroom's speakers. Although better quality, it still sounded as though the voices of the interviewer and interviewee were echoing through a tin can. Mr. Descôteaux stared intently at the ceiling, rotating comically as he did so, then ambled to the back of the courtroom, where the public sits, with his hands in his pockets and stared at the ceiling a while longer. All the while the recording played. When he returned to the witness stand, he told the judge he could not recognize Mr. Pare's voice but thought it was probably him because of his accent. This was not enough to satisfy Justice Riordan that it was admissible, so he reserved his decision on the question of the recording's admissibility.

Outrageous and Shocking

One of the timeline documents that was admitted was an October 1987 memo from Mr. Descôteaux to Bill Neville of the Canadian Tobacco Manufacutrers' Council concerning preparation for industry representatives to appear before a Parliamentary Committee (exhibit 33). Mr Descôteaux recommended preparing responses for questions like “how does it feel to kill 35000 Canadians a year? And a few hundred innocent bystanders? Do you sleep well?”

When Mr. Johnston questioned him on this memo, Mr. Descôteaux explained that he relied on his experience and instinct to identify possible questions. He said that he put them in “outrageous and shocking” terms so that they would not be taken by surprise.

Mr. Descôteaux did not recall being so diligent in preparing a response to an April 1980 BBC television program in which a recently retired scientist from British American Tobacco (Imperial parent company), Dr. S J Green, said:

I think that in a nutshell, what we can show is that smoking is a very serious causal factor as far as the smoking population is concerned...I am quite sure it is a major factor in lung cancer in our society.

Despite receiving a memo from BAT warning that this program was soon to be broadcast and would likely be picked up by media outside the United Kingdom (exhibit 31), Mr. Descôteaux said he could not recall preparing for a media question on Dr. Green's admission. When Mr. Johnston asked him if Dr. Green's admission was sufficient to change Imperial's view about smoking causing lung cancer, Mr. Descôteaux replied that it must not have been because the position did not change for at least another fifteen years.

Hearsay and Exceptions

An important issue to be decided later in the trial was foreshadowed today when Imperial Tobacco lawyer Deborah Glendinning repeatedly objected to Mr. Johnston introducing company document on the grounds that their contents represent hearsay evidence. Lawyers for the other tobacco industry defendants put forth that the documents could be used to question the witness, but that their contents could not be used as evidence themselves.

Mr. Johnston rebutted that the first hearsay exception lawyers learn is about declarations against interest, and that he intended to use the documents as evidence. Justice Riordan rejected most of Ms. Glendinning's objections to admitting specific documents, but said that the issue raised about whether the documents can be considered evidence themselves, beyond the answers they elicited from the witness, would need to be decided later.

Tomorrow: Document Destruction

At 4:25pm, Mr. Johnston moved to the topic of document destruction by Imperial Tobacco, but Justice Riordan interrupted to note that he would be stopping for the day at 4:30pm and did not want to start on this topic unless it could be completed in five minutes. Mr. Johnston said it would certainly take him longer than that, so the day ended with this teaser of what is to come tomorrow.

by Michael DeRosenroll for Cynthia Callard

Day 4 - "Somebody could give you an explanation. I cannot.”

Michel Descôteaux’s third day on the witness stand in the Quebec tobacco class action suits began as it was to continue – with an interruption from tobacco industry lawyers.

Before the plaintiff’s lawyer, Bruce Johnston, could resume his questioning of Imperial Tobacco’s former director of public relations, the company’s lawyer Deborah Glendinning was on her feet to raise concerns about Justice Riordan’s decision the day before that declared Mr. Descôteaux a ‘hostile witness’.

 Justice Riordan clarified that it was rule 306 of Quebec’s code of civil procedure which he was invoking. (Rule 306 requires that lawyer’s questions “not be put in such a way as to suggest the desired answer, unless the witness evidently attempts to elude a question or to favour another party, or unless, being himself a party to the suit, he has interests opposed to the party who is questioning him.” )

This was apparently no more satisfactory to the companies, and they animatedly expressed a view that Mr. Descôteaux did not qualify under this rule as he neither had interests opposed to the plaintiff (as a retiree) nor had shown any attempt to elude questions.

Justice Riordan retired to consider the matter and returned in about a quarter of an hour to report that such determinations were not a science, but were based on impressions and judgement. His impressions and judgement were that Mr. Descôteaux, while attempting to be truthful, was also attempting to favour his employer of over 30 years. Rule 306 would apply, he said. “I stick by my decision.”

It was thus 10 o’clock before Mr. Johnston could resume his questioning. Before doing so he introduced several new documents into evidence. One set (Exhibits 12, 13, 14, 15, 15a, 15b and 21) concerned the attempts of Imperial Tobacco in 1980 to persuade Alcan Canada to reconsider its program to encourage its employees to quit smoking. These attempts included letters from ITL’s president, Paul Paré, to Alcan’s president, David Culver. Mr. Descôteaux provided a picture of a cosy relationship between the companies at both the leadership level (the presidents  “went to the same clubs”) and the business level (Alcan supplied the foil for ITL’s cigarette packages).

Exhibit 14: Aide Memoire

It was Mr. Descôteaux who was responsible for communicating the core of ITL's concerns to Alcan, and he did so in a meeting with and letters to Alcan’s director of public relations, Jacques Gagnon. The 'aide-memoire' he prepared after meeting Mr. Gagnon detailed Mr. Descoteaux's pitch to Alcan to reconsider its 'anti-smoking' work. There were potential adverse consequences of depriving people who ‘for genetic or psychological reasons needed to smoke,’  he had explained. Work performance might suffer, and there may even be increased deaths from stress and industrial accidents.  Much better, he suggested, if Alcan were to encourage its employees who smoked to switch to lower tar cigarettes.

He gave a positive report on his initiative to other Canadian tobacco companies, telling them he anticipated that Alcan would scale back its efforts to encourage employees to quit smoking and that the door was open to persuade Alcan to take more ‘compatible’ positions.

Mr. Descôteaux rejected the view that in  communications to Alcan or others he was being misleading. “Never was my attempt to mislead,” he said. "The question I was asked was ‘what is your company’s position?’ Giving an answer that goes against popular views is not misleading.”

He affirmed that he had no problem with the answers he gave. “I believed it was true,” he said. He repeated that his beliefs had matured with those of the company. “This [the company] is where I got my information.”

One source Mr. Descôteaux did not consider credible was the views of “anti tobacco”groups, such as the Non-Smokers’ Rights Association. “They have a habit of using documents for image impact” and inflating claims based on superficial reading, he said. When pressed by Mr. Johnston about whether Imperial Tobacco had ever similarly made inflated claims on superficial reading he bristled. “Imperial Tobacco has never behaved in a dishonest manner.”

Mr. Johnston pointed out that in his 1976 memo (Exhibit 11), Mr. Descôteaux had written that the company should engage in changing the public's view of science. “[T]he position I suggest we adopt is that we are innocent until proven guilty. We should agree to consider scientifically valid medical research findings as indications – hypotheses – that smoking may be hazardous to human health. We should denounce these with vigour and try to discredit them as much as possible.” This memo, Mr. Descôteaux told the court, reflected his own ignorance, immaturity, ambition and youthful desire to contribute at the time.

One of the last exhibits entered during the day (Exhibit 24) was a Quarterly Public Affairs Report produced by Mr. Descôteaux’s department. In it, the results of the companies regular public opinion poll (the CMA) were published, showing that the number of Canadians who agreed with the statement smoking is “dangerous for anyone” had stabilized around 67%, and that 6% of Canadians thought that smoking was “not dangerous at all”.

Exhibit 24: Quarterly Public Affairs Report 

Does this company survey showing that 6% of Canadians thought cigarettes were not harmful contradict earlier suggestions that 'everyone knew' about the harms of smoking? "I don’t think it does,” replied Mr. Descôteaux. Asked to explain, he said: “I wish I could. Somebody could give you an explanation. I wish I could. I cannot.”

Over the first two days of testimony, Mr. Descoteaux had responded to open questions with long answers, often rich in detail and personal reflection. Today, the industry lawyers were quicker on their feet to prevent his immediate reply. As the questions became tightly focused on the contrast between Mr. Descoteaux's oral history of his experience at Imperial Tobacco and the written record of his time there, he seemed to struggle more in his replies.

The court does not sit on Fridays.  On Monday's session (March 19), Mr Descôteaux is expected to  continue his testimony which will likely finish the following day. The next witness is expected to be Mr. Kalhok, to whom Mr. Descôteaux wrote his 1976 memo (Exhibit 11) which encouraged denouncing and discrediting medical science ‘with vigor’.

Next week, owing to the World Conference on Tobacco or Health, a guest contributor will continue this blog.

Day 3 - Representing smokers' interests

The third day of Montreal’s class action tobacco trial picked up where it had left the day before – with Bruce Johnston questioning Imperial Tobacco Canada Ltd.’s (ITL) former director of public affairs, Michel Descôteaux about his views in 1981 on a proposed BAT handbook on ‘Smoking and Health’ for employees. (Exhibit 4) Attention was focused on one particular aspect of a document - in this case Mr. Descôteaux’s recommendations on how to communicate the risks of smoking to employees, including his advice to say that “99% of smokers do not contract (or die from) lung cancer." (Elsewhere, the document shows that BAT preparing to tell its employees that “further reductions in the incidence of diseases associated with smoking” were forecast.)

How to communicate the risks of smoking was a question that Mr. Descoteaux was familiar with, as seen in both his testimony and the documents he wrote which have been entered as exhibits in the trial. He clearly had his own views on how to communicate risk. He wouldn’t say, for example, that “15% of smokers die from lung cancer” but would rather say that “85% of smokers do not die from cancer.” He explained that his job was to produce communications materials  that people with only a grade 2 education could understand, yet vociferously denounced as ‘absurd’ a statement like ‘each cigarette takes 5.5 minutes off your life.’

One by one, 7 more documents were introduced, and used as a basis for questioning Mr. Descôteaux on his work at Imperial Tobacco Canada Ltd. Each time one of these exhibits is presented, it is displayed on the courtrooms 8 monitors. The document also becomes electronically accessible in the non-confidential section of a database developed for the trial. Exhibits, transcripts, expert opinions and other  trial documents can be accessed at: (https://tobacco.asp.visard.ca).

Exhibit 5, for example, was a 1988 proposal by Mr. Descôteaux to proposed increased support to the Smokers Freedom Society that could, among other things, give a “sympathetic ear” to the “harassed smoker… without telling them, once again, that they have only themselves to blame and that they should quit.”  The Society, he suggested in this memo, could serve as the voice of smokers with regulators and the media, a source of information to smokers, and a funder of challenges to smoke-free laws. More than 20 years later, in responding to Mr. Johston’s questions, Mr. Descôteaux confirmed that the organization was “formed to represent  the rights and interests of smokers.”

The next documents provided insight into what rights and interests of smokers were represented by the Society. These included:  commissioning a report to challenge the conclusion of the Royal Society that tobacco was addictive (Exhibit 6), writing Health Canada to suggest that proposed health warnings went too far in linking smoking with disease (Exhibit 8, under reserve).  Although Mr. Descoteaux agreed when asked by Mr. Johnston whether the interests of smokers might also include being warned of the risks of smoking, none of the documents presented suggested that this was part of their plan of work.

The overlap between the focus of the Smokers Freedom Society and the goals of the tobacco companies, to which Mr. Johnston alluded, was linked more formally in a strategic analysis written by the President of the Canadian tobacco industry group, the Canadian Tobacco Manufacturers’ Council (CTMC).  This document (Exhibit 7) reveals that in 1991, the CTMC provided with Smokers Freedom Society with more than $900,000.

“An addiction is something you can’t get rid of”

A good part of the afternoon’s questioning was focused on addiction – on the actions of the Smokers Freedom Society to challenge a scientific consensus on the addictiveness of tobacco (by commissioning an widely distributing an opposing opinion by the University of Montreal’s Dollard Cormier) and on the role Imperial Tobacco may have played in that campaign. Mr. Descôteaux told the court that he didn’t believe that cigarettes were addictive in 1988 and that he still didn’t.  “Nothing in cigarettes prevents people from quitting,” he said. "My hypothesis is that addiction is in the individual.” He pointed to his own ability to quit smoking (twice) without difficulty, and to the fact that some individuals were addicted to patterns, like gambling, that did not involve a consumed substance in the way of cigarettes or alcohol to illustrate his points.  He likened his feelings about golf to addiction, and said he was unable to play the 97th game in a season without going to bed thinking about the next game.

The last document to be introduced showed that in 1976 Mr. Descôteaux was an early adopter of understanding the addictiveness of smoking. To assist his colleague, Tony Kalhok, prepare for a meeting arranged by BAT in its Chelwood facilities, Mr. Descôteaux prepared a memo on how the industry could fare better against attacks if it exhibited “a willingness to challenge and be challenged.” (Exhibit 11). 

“A word about addiction,” he cautioned. “For some reason, tobacco adversaries have not, as yet, paid too much attention to the addictiveness of smoking. This could become a very serious issue if someone attacked us on this front.  We all know how difficult it is to quit smoking and I think we could be very vulnerable to such criticism.”  He suggested a way to manage this vulnerability:  “I think we should study this subject in depth, with a view towards developing products that would provide the same satisfaction as today’s cigarettes without “enslaving” consumers.” This suggestion provoked someone to enter a marginal note: “Much of the satisfaction is in the effects of nicotine… i.e. would you pay $12 for 40 oz of gin if it didn’t contain alcohol?”

A few reservations

Despite the cordial tone that is set by the judge and professionally respected within Courtroom 17.09 , there were a few flashes of tension.  Almost twenty times the lawyer for Imperial Tobacco, Deborah Glendinning, rose to object to a question put to Mr. Descôteaux or to a document that was being entered in evidence. Only once did Justice Riordan agree with her. 

By mid-morning, Justice Riordan clarified that Mr. Descôteaux's positions were favourable to Imperial Tobacco and that he would now be considered a ‘hostile’ witness, a procedure which provides the plaintiffs with greater latitude in their questions. 

Of the 11 exhibits produced so far, at least 3 were objected to by industry lawyers and are on “reserved” status while awaiting a decision on their admissibility.

Hearings for this trial take place Monday to Thursday.  Tomorrow (March 15), Mr. Descoteaux will continue to testify, and will likely do so until next week, when Mr. Kalhook is expected to appear.

Day 2 - The spokesperson is asked to speak

My mother told me "never trust a man in a black dress." (Maybe she wasn't right all the time).

The courtroom was visibly different on the second day of the trial and not only because there were fewer cameras and more vacant seats. For reasons not explained, but perhaps due to the absence of witnesses, the black robes of Quebec’s court dress had not been required on the opening day. The official dress code was in effect once the real business of witness testimony began today. The medieval quality of these heavily smocked black robes (to say nothing of the judge’s oddly bright red tippet/scarf) provided a quaint counterpoint to a courtroom otherwise determinedly modern and festooned with the latest technology.

In the American TV shows and movies that influence our image of courtrooms, the witness is seated in a raised box to the side of the judge. Quebec courtrooms maintain traditions that date from pre-Napoleonic French law, and the witness and presenting lawyers stand facing the judge with their backs to the court. Witnesses who testify all day (or for several days) are required to remain standing, unless given permission by the judge to sit. So too do the lawyers remain standing as they examine the witnesses or present arguments to the bench.

One of the disadvantages of this arrangement is that those who watch from the back of the room have difficulty seeing and hearing what is going on. (Only after complaints from the media was a microphone brought in to amplify the witnesses’ testimony.)

The first order of business was to shuffle the calendar to manage an apparent challenge to the subpoena of one witness, who was ordered to return to the court on April 2, subject to a decision of the Appeal Court. The second order of business was to order that all future witnesses to the trial be excluded from the court-room and, it would appear from the judge's remarks, to also refrain from reading certain trial documents.

But the real order of business was the first day of testimony of Mr. Michel Descôteaux, the former public relations chief for Imperial Tobacco.

A one-company man

In response to the questions of Bruce Johnston (Trudel and Johnston), Michel Descoteaux detailed a professional life spent entirely in the service of one company. He started working for ITL in 1965 (at the age of 18), processing insurance files, but was moved into public relations in 1967-68 and was quickly promoted. By the time he was 35 he was director of Public Affairs, a position he occupied until 2000 (and shared with his successor until 2002). His educational qualifications were acquired at night school at the University of Montreal. For 21 years, he was in effect the only spokesperson for Imperial Tobacco (other than senior officers), as well as being the company’s representative at the industry association, the Canadian Tobacco Manufacturers Council. He retired in 2002 to what he described as a pleasant retirement, one where he did not have to get up any earlier than he wanted.

After establishing Mr. Descôteaux professional work experience, Mr. Johnston turned the discussion to the experience of Mr. Descôteaux in communicating Imperial Tobacco’s position or policy on any of the risks associated with smoking cigarettes. His questions were of the order: “How were press releases processed?” “Were you involved in setting the companies’ position about smoking and health?” “Were the companies free to arrive at a policy different than BAT?” “Why didn’t you just ask the scientists ‘what’s the truth on smoking and health so we can tell our employees?’” “Is it fair to say no scientists were involved in deciding what to say about smoking and health?”

It might be expected that after 30 years of working in public relations for one of the most controversial industries, Mr. Descôteaux would be accustomed to answering (or not answering) difficult questions. Certainly at times his answers were challenged as being inconsistent with some views he had expressed in trial documents. His statement that Imperial Tobacco was “very strongly independent from BAT” was contrasted by Mr. Johnston with a confidential memo Mr. Descôteaux wrote to his boss, Jean-Louis Mercier, in July 1979 to encourage a proactive communication campaign with company employees (factory and sales staff) about smoking and health issues. (Exhibit1) The memo suggested that BAT’s approval would have to be sought first. 

“Il va sans dire que nous devrons nous assurer que leur contenu sera conforme aux politiques internationales de l'industrie. A cette fin, nous pourrions, si nécessaire, les soumettre a B.A.T. aux fins d'approbation avant de procéder a leur impression”

(It goes without saying that we must make sure that the content is consistent with the industry’s international policy. For this we could, if necessary, submit them for BAT’s approval before proceeding).

“I realize that it sounds contradictory to what I have said before,” acknowledged Mr. Descôteaux. It would appear even Justice Riordan acknowledged the difficult position of the witness, as he offered “we often regret what we write. As a judge I can attest to that.”

Similarly, Mr  Descôteaux’s statement that he took his lead on smoking and health issues from the company scientists (“I had access to people with special knowledge - I never doubted what they said.”) was contrasted with comments he made in 1981 to BAT scientist Bob Gibb that suggested a more active role in influencing communications about science. In response to a proposed company statement to support medical advice against smoking when pregnant, Mr. Descôteaux wrote: (Exhibit 2)

“I am amazed that BAT would agree with the advice of doctors concerning pregnant women. I would suggest here that they word their paragraph somewhat differently along the following lines: "Nevertheless, in the absence of definitive answers to the question, many doctors advise their pregnant patients to modify their smoking habits pregnancy as a sensible part of prenatal behaviour not unlike the advised reduction in alcohol consumption or in the use of non prescribed medicine." BAT's agreement could open the door to claims for warnings on cigarette packages, for example, and has very important implications in the passive smoking debate.

Mr. Descôteaux’s own views on smoking and health were sought (over the objections of ITL’s Counsel Deborah Glendinning). He said his own attitude had evolved over time, as the company’s had. The corporate view stated in the late 1960s “There is no proof that tobacco smoking causes human disease” (Exhibit 3) remained unchanged until 2000 when the President decided to take a different approach when appearing before a Senate Committee. When the company president changed his mind, so did Mr. Descoteaux.

Controlling the message

The storylines that emerge when a skilled lawyer questions a skilled messenger might be expected to contain what someone in Mr. Descôteaux’s former position might describe as “differences of nuance.” But Mr. Johnston and Mr. Descôteaux were not the only two working to establish what the court would or would not hear about these events. ITL's lawyer Ms. Glendenning (Osler Harkin and Harcourt) offered several objections to Mr. Johnston's questions and to the submission of certain documents.

On only one occasion was she successful at changing the narrative. When tangentially answering a question about of the practice of lawyer’s reviewing documents prior to their destruction or retention, Mr. Descôteaux began an anecdote about his exchange with a “young lady” from a law firm who was reviewing his files. Ms. Glendenning quickly rose to her feet to prevent the man who was once in charge of corporate communications from finishing his story. Mr. Descôteaux didn't immediately 'get the message', and she had to object a second time before it was clear that he wouldn't be able to finish his story.

Day 1 - The curtain rises

There was standing room only in Room 17.09 of Montreal’s Court. Despite being one of the larger courtrooms in the building with room for more than 100 people, there was not enough room for the lawyers, journalists, class members, and other onlookers to Canada’s first big tobacco trial.  Each of the 6 parties had their own team of lawyers.  The plaintiff’s (Blais and Letourneau) on Stage Left, the defendants (Imperial Tobacco Canada Ltd., JTI-MacDonald and Rothmans Benson and Hedges) on Stage Right, and the federal government squeezed behind the plaintiffs' bench. Lawyers spilled over onto the public benches.  As in a wedding, people mostly arranged themselves behind the side they were associated with, but lack of space forced this natural division to break down and there were awkward glances as journalists and junior lawyers rubbed elbows in the back rows. 

Many important onlookers to tobacco litigation came for this opening daynight of a case that is expected to have a long-long run at the Palais de Justice.  Public health leaders like Dr. Marcel Boulanger and Dr. Fernand Turcotte came to watch, as did representatives from many health groups in Quebec and elsewhere.   Doug Lennox, the principal lawyer working on Canada’s other class action suit (The Knight case), came as did the man who has directed the government’s tobacco litigation for over 25 years, Claude Joyal.  The two representatives of the class, Cecilia Létourneau and Jean-Yves Blais, were present, as were a handful of other class members.  There were so many lawyers in the room that the victims and class members (those for whom the cases were being argued) had difficulty finding places to sit.

The opening day was rather like a play in six acts, each side allotted 45 minutes to introduce its case.   More accurate, perhaps, to see it as three acts – the first being the story of the wronged smokers, the second the tobacco industry and the third being federal government uncomfortably caught in the action.  Justice Brian Riordan’s prologue cited a former Mossad agent who said that it was easier to know when a war starts than when it ends. But today it really begins, said the judge, and appealed to “good will and professional pride” to guide the proceedings. 

“The good news is quitting is hard to do”

First to speak was Bruce Johnston (Trudel & Johnston), who heads the Letourneau case.  It is rule of law, he said, that is at the core of democracy and at the core of this case, as the attitude of the tobacco companies was that they were above the law.  We hoped to find a ‘smoking gun’ among the industry’s documents, he said, but said they found many more -- at least 296 'smoking guns'. One of these was described - a handwritten letter from Bob Bexon, then head of marketing (but later President of) Imperial Tobacco Canada.  “I apologize for the handwriting but I imagine the cause for this is apparent,” wrote Bexon to his boss. “If our product wasn’t addictive, we wouldn’t sell a cigarette next week.”  Another was Bexon extolling the difficulty that people had in quitting smoking as “good news.”

Over the next 40 minutes, Mr. Johnston outlined how the companies had manufactured a dangerous product, had systematically adopted policies of not informing consumers of the risks of their products, had minimized and denied the risks of their products, had misrepresented the risks of their products, had failed reduce the addictiveness of their products, had conspired to prevent consumers from learning of the dangers of smoking.  He used colourful imagery to describe the modus operandi of the industry, recalling the experience of Dorothy when she finally appeared before the Wizard of Oz, only to discover as her dog pulled back the curtain that the whole thing was “smoke and mirrors” that even the scarecrow could recognize as fraud.

Mr. Johnson identified six sophistries behind the industry’s case: (1) that the cigarette is a legal product, (2) that people chose to smoke, (3) that everyone knew the risks, (4) that no one can prove causality, (5) that it is the government’s fault and (6) that ultimately the victims have only themselves to blame.  He elaborated on each of these industry positions, citing answers given during earlier examination of witnesses.  In an anecdotal way, he told the court how after his son told him that the tobacco industry had been awarded with the Doublespeak award by the National Council of Teachers of English, he asked why they didn’t get it every year.  The reply “because they wanted to save some for George W. Bush” brought a laugh from all sides of the court.

Doublespeak and document destruction

The lead for the Blais case, Mr. André Lespérance (Lauzon Bélanger Lespérance), picked up on the theme of doublespeak, and ethical failures of the companies as one of four main arguments.  The others were the magnitude of the public health problem, manufacturers’ responsibilities under law, and the industry’s destruction of documents that could prove harmful in litigation. He contrasted an admission by Rothmans Benson and Hedges as early as 1950 that the “death rate from lung cancer … is 64 times greater among heavy smokers – 2 packs or more a day – than among non smokers” with later attempts to minimize or deny health risks. He presented a recent admission from BATCO counsel, John Meltzer, that the objective of the document retention policy was to avoid certain research reports being available to plaintiffs. 

We were only following orders

There was no lightness in the arguments presented by Imperial Tobacco’s counsel, Suzanne Côté (Osler, Harkin and Harcourt).  As did Mr. Johnston, she went through each of the 8 questions raised by the ruling that certified the case – but came to very different conclusions on each one.  Tobacco companies may have manufactured a dangerous product, but always in conformity with federal regulation. Smokers knew the risks, and smoked because they enjoyed it. It is not possible to make a safer cigarette if consumers won’t smoke it.  But even if those 8 questions were answered in favour of the plaintiffs, she suggested, the companies still should not be held liable because the questions did not deal with fault.  The relationship of the industry’s actions and any harms to the individual members of the class (let alone the whole class) were not established. 

To support their “action in warranty” against the federal government, she cited several documents dating from 1963 to 1986 where the federal government was deciding to not require health warnings, to not use the word addiction in relation to smoking, to develop less hazardous cigarettes.  She described the federal government as the “leader” in a relationship with industry, and the recipients of most money from tobacco sales.

The freedom to choose

Mr. Guy Pratte (Borden Ladener Gervais), on behalf of JTI-Macdonald, outlined 5 arguments to suggest that the case was unfounded.  (1) Smokers have exercised their right to chose to smoke , he said, appealing to such ‘rights to choose’ as being core to Canadian democratic principles. (2) The principal actors in the smoking decision is the individual, and there is no evidence that any action by JTI had an effect on a smokers’ decision to smoke. (3) It is impossible to apply today’s standards to behavior over the past 50 years, especially in the context of changing views towards addiction.  (4) There is no established link between the behavior of defendants and any damages suffered by victims. Like Ms. Côté he emphasized the question of fault, referring to it as a “phantom ninth question” in the case. (5) The class action can’t obscure the need to meet the same burden that would be required by individual cases. The plaintiffs should be required, he said, to demonstrate that any damages would be the same if they were awarded individually. It’s the right to choose, he concluded, that defines us as humans – and the corollary of this right is the individual’s responsibility for those choices.

Volenti non fit injuria (to a willing person, injury is not done)

Simon Potter (McCarthy Tétrault), when he picked up the case for Rothmans, Benson and Hedges, presented a new view.  Cigarettes are manufactured and sold in Canada in compliance with the laws of Canada, he suggested, and these laws reflect a societal consensus that was developed when the hazards of smoking first became accepted in the late 1950s.  The plaintiffs were essentially asking for a ruling that would end cigarette production, Mr. Potter maintained, and this would go against a long-standing and reaffirmed consensus.  He cited the recent Consumer Products Safety Act (which prohibits the manufacture of harmful products, but exempts tobacco products) as an example of the societal compromise that allows cigarettes to be sold, despite their harms. “We ALL knew” about the dangers of smoking, he said and “We ALL agreed that we should allow individual Canadians and Quebecers to make their choice to smoke or not to smoke.”

He argued that the case assumed that no one would have smoked without the alleged wrongful conduct of the industry,  that no one would have smoked just because they liked it.  Yet, he said, the class has undergone several changes in the period since the action had been launched.  “People are quitting in droves” he said, “with perhaps no other behaviour which Quebecers have so abandoned” as smoking.

As did the other companies’ lawyers, Simon Potter challenged the ability to establish a class-wide proof, or to establish fault.  People did not smoke because of the companies, he suggested and offered an alternative explanation: people smoked because “schools were not disciplined enough”.  The responsibility or fault lay with smokers he said – why should smokers, who have accepted the risks, be compensated when the risks materialize?  People who chose to smoke don’t deserve compensation just as “I don’t deserve compensation because I am overweight.”

A Red Herring

Mr. Maurice Regnier (Gilbert Simard Temblay) was the last to speak, on behalf of the government of Canada. He began his comments by reminding the judge that all of the actions referred to by the industry involved policy, not administrative, decisions of the government, and that the Supreme Court had ruled last summer on other tobacco lawsuits that the government could not be held responsible for policy decisions.  The industry is hiding behind government policy, he said, even though Canada has no responsibility for policy decisions in other tobacco cases. Bringing the federal government into the case is a red herring, he said, designed to mask the industry’s responsibilities.

Mr. Regnier pointed out that the government had never told the industry HOW to make cigarettes, and that the design of cigarettes was entirely controlled by the companies.  For example, the recipes that the companies used to blend the tobacco in their cigarettes were never shared with government.

He stressed that when the government had given directions about tobacco – as in laws banning advertising or requiring labeling – the industry had sought to blunt their impact.  The industry had used images of romance, health, and sport to distract from the health messages. They had deliberately cast doubt on health research. They marketed cigarettes as ‘light’ even if the levels of tar and nicotine were the same or higher than on other brands. They created shell companies to undermine bans on direct product advertising.  It is unacceptable, he said, that the companies market in spite of laws, and then claim this is a societal consensus.  “It wasn’t the government that asked the companies to show pictures of beautiful young people on a mountainside, smoking a cigarette.”

He pointed out that both the Tobacco Products Control Act and the Tobacco Act had explicit provisions which retained manufacturers’ responsibilities.  Whereas the Government of Canada seeks to protect health, he concluded, the industry only seeks to protect profits.

Intermission

By the time Justice Riordan adjourned proceedings at 4:10, the audience had dwindled by about half.  Tomorrow (March 13), the first witnesses will appear.

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FAQ - Frequently Asked Questions

What is a class action?

A class action is a form of lawsuit where one or more persons (representative plaintiffs) take legal action on behalf of others in the same circumstances. Those who are being represented are considered members of the “class”, even if they have no active participation or even knowledge of the action. Class actions are a relatively new form of legal action in Canada. Quebec was the first province to introduce class actions (in 1978), and Ontario was the second province in 1992.

What are these lawsuits about?

The Montreal trial will involve two distinct class actions. One concerns addiction, the other concerns lung disease.

The Cécilia Létourneau v. JTI-Macdonald Corp, Imperial Tobacco Canada Ltd. and Rothmans, Benson & Hedges Inc (“Letourneau”) case demands a payment of $5,000 to each addicted Quebec smokers as compensation for their addiction. (The court number for this case is 500-06-000070-983).

The Conseil québecois sur le tabac et la santé and Jean-Yves Blais v. JTI-Macdonald Corp, Imperial Tobacco Canada Ltd. and Rothmans, Benson & Hedges Inc (the “Blais” case) demands that tobacco companies pay $100,000 in compensation to each Quebec smoker who has suffered lung cancer, larynx cancer, throat cancer or and emphysema. (The court number for this case is 500-06-000076-980). Punitive damages of $5,000 for each individual in both cases is also being sought.

What is the total amount involved?

The total amount sought is estimated at $27 billion dollars. The number of eligible Quebec smokers eligible in the Letourneau case is estimated to be 1.78 million. The total sought in this case is $17.8 billion ($8.9 billion in compensation and $8.9 billion in punitive damages). The number of Quebec smokers eligible in the Blais case is estimated at 90,000. The total sought in this case is $9.45 billion ($9 billion in compensation and $450 million in punitive damages).

Which companies are being sued?

The class actions are against the Canadian operations of the world’s largest tobacco companies: Rothmans Benson and Hedges (wholly owned by Philip Morris International), Imperial Tobacco Ltd. (wholly owned by British American Tobacco) and JTI-Macdonald (wholly owned by Japan Tobacco). The parent companies have not been named in these Quebec actions (although they are included in some other Canadian suits).

How long have these lawsuits been going on?

It has taken more than 13 years for these cases to come to trial. The Letourneau case was filed in September 1998, and the Blais case in November 1998. The cases were ‘certified’ by the court on February 21, 2005 and allowed to proceed. The ruling on the certification established that the cases would be tried together.

Why is the federal government involved in this trial?

In 2008, each of the tobacco companies facing lawsuits in Canada employed a new defensive strategy: in British Columbia they filed ‘third party notices’ and in Quebec filed the equivalent ‘defendant in warranty’. In these motions they alleged that the federal government should be held responsible for any damages awarded against them. In the British Columbia cases, their third party motions were ultimately rejected by Canada’s Supreme Court in July 2011. Although the federal government did not ask to be dismissed from the Quebec cases until after the British Columbia issue had been resolved, it did enter into an agreement with the plaintiffs which would have released it from any damages. This agreement was rejected by the Courts, as was a subsequent request to be dismissed from the case.

What other class actions are ongoing in Canada?

One other Canadian tobacco class action suit has been certified. The “Knight” case is based in British Columbia and seeks both damages and remedial actions from Imperial Tobacco resulting from the sale of so-called ‘light’ cigarettes. Five class actions suits have been filed by the Merchant Law Group in Saskatchewan, Manitoba, Alberta, British Columbia and Nova Scotia. None of these has yet been certified, and in only one are preliminary motions ongoing.  Philip Morris reports that it has been served with an additional class action suit in British Columbia.

Are there similar trials in other countries?

Philip Morris International reports that it is also facing 2 class actions in Brazil.

How are class actions financed?

In Quebec, plaintiffs can seek financial assistance through a class action assistance fund (Fonds d’aide aux recours collectifs, FARC). If successful, they may be required to provide a portion of the amount they recovered to the fund. In 2010, these two class actions collectively received about $300,000 from this fund. More information can be found through FARC.  Lawyers in Quebec are also allowed to work on a contingency basis.