Monday, 19 March 2012

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

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