Thursday, 22 March 2012

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?
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?


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