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.