Monday, 12 March 2012

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.
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.