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).
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