Monday, 30 April 2012

Day 20 - Mr Bédard and Canadian Astroturf

See note on accessing documents at the end of this post.

After an week's break, the trial of the two Quebec class actions against tobacco companies resumed this morning without missing a beat.  Lawyers for all 3 sides (the two plaintiffs, the three defendant tobacco companies and the federal government as defendant in warranty) were at the ready when Justice Riordan entered the room at 9:30.

The lawyers took up where they had left off eleven days ago: squabbling about witness scheduling and document exchange.

After listening to complaints from both sides - "mish mash!" "pell mell!" "midnight e-mails!" -  Justice Riordan underscored his strong preference to have witnesses from each company scheduled following one another, and not interspersed with witnesses from other companies. In doing so, he dropped another hint about his approach to the case, saying that he would not be writing his judgement by theme, but would do so by company. "The policies were not the same for each company," he said.

He also granted more time to the federal government to fulfil some of its undertakings to the industry and to submit required filings with the court. The federal government will not have to submit its declarations on case management until the end of August -- some weeks after the August 9th hearing at the Appeal Court that has the potential to remove them from the case.

Tomorrow may bring a revised schedule of future witnesses...

Mr. Bédard and the Smokers Freedom Society 

It was thus some time into the morning session before the witness for the day, Mr. Michel Bédard, the Smokers Freedom Society, was called to the stand.

Waiting to testify, Mr. Bédard looked very much like the college philosophy teacher he had once been.  At his feet was the scholar's sturdy two-strap brown leather satchel. A picture of Thomas More was on the cover of the book in his hands. His concession to the formality of the court room was to wear a blazer and flannels, with a coloured shirt and tie.

Mr. Bédard was not originally scheduled to testify at this trial, and was introduced to the court in the opening days during the testimony of Michel Descoteaux, who said that they had become friends over the years.

Michel Bédard
at the Institut
économique de Montreal 
The two men share more than their age (65), their fondness for beards (Mr. Bédard's is a chin curtain reminiscent of Everett Koop), and a friendship. Like Mr. Descoteaux, Mr. Bédard has the ability to use a question - or even a preamble to a question -- as a jumping off point for an explanation or anecdote. More than once, Justice Riordan attempted to have the witness's answers more immediately (and briefly) linked to the questions.

Nonetheless, through Mr. André Lespérance's questions and  introduction of more than 20 documents (some under reserve), a discernable picture was drawn of the role that Mr. Bédard played in the development of Canada's first "astroturf" smokers' group, and the role that he tried to play in the development of public policy on tobacco issues.

(Astroturf groups are fake grass-roots movements and there were subsequent groups, including My Choice, that emerged after the Smokers Freedom Society dissolved around 1994).

Mr. Bédard traced his involvement in the Smokers' Freedom Society to a suggestion from Pierre Lemieux, whom he described as a 'somewhat notorious' libertarian. After reflecting on the proposal and his feelings as a smoker of being under seige, he met with Mr. Lemieux and with Mr. Descoteaux, who was acting on behalf of the CTMC to discuss how this might be done.

Before long, an understanding had been reached and a formal approach was made to meet with the senior management of the then four member companies of the CTMC (Exhibit 197). Chief among Mr. Bédard's concerns at the time, the letter would suggest, was the issue of money. Of the seven items identified for discussion, five involve the need for financial guarantees. Eventually, Mr. Bédard reached an agreement with the companies that included financial protection for 5 years. (Exhibit 198A).

The Society's dependence on the industry, and Mr. Bédard's attempts to match the work of the Society to the interests of the industry were shown in semi-annual and annual reports. In the 56 pages of the first half-year report in March 1987 (Exhibit 202), Mr. Bédard warns that the organization faces and uphill battle and recommends expanding its work.  He notes that the only members of the organization are "associated, in one way or another, with the tobacco industry."

His second annual report, made in November 1988, (Exhibit 203), after federal legislation to curb tobacco advertising and smoking in public places had passed, reports on the work of the Society during these eventful times to slow down these events.

The Society was active in virtually all of the challenges the industry was facing: it appeared before parliament to speak against legislation, (Exhibit 206, Exhibit 204) recruited test cases to challenge smoke-free laws, commissioned studies to dispute claims about second hand smoke, and helped "spontaneously-formed groups of smokers" push back local bylaws.

Out of this rich document, Mr. Lespérance drew Mr. Bédard's particular attention to what he had written about the relationship between the activities of the Smokers Freedom Society and the tobacco companies:

One element which frequently crops up in contacts between the SFS and the industry and which was publicly referred to at the last Infotab Workshop is the fact that organizations such as the SFS, FOREST, etc. can say or do things which the industry, for various reasons, cannot allow itself to do.

Mr. Lespérance questioned Mr. Bédard about ways in which activities of the Smokers Freedom Society had been aligned to the interests of the tobacco companies.  These included the commissioning of a report (by Dr. Dollard Cormier) to counter conclusions of the Surgeon General and the Royal Society of Canada that nicotine is addictive, and an economic analysis (by André Raynauld) of the net economic benefit from smoking. (Exhibit 209)

To each example, Mr. Bédard provided a similar reply: he had wanted to study these issues in order to find out for himself whether the claims tobacco use faced were justified.  "If your acts have consequences on third parties, you have to take them into consideration," he said.

It was in order to protect the Society's integrity that these actions were taken, he suggested.

If nicotine truly were addictive, then the concept of the freedom to smoke would be called into question. Similarly, if second hand smoke truly were unhealthy, then the right of smokers would have to be balanced against the impact on others. If smokers truly were a drain on the economy, then the freedom to smoke woul be weighed against the externalized costs.

As it turned out, all of the studies that Mr. Bédard commissioned came to the conclusions that supported the continuation of his work:  the conclusions were that cigarettes were not addictive, second hand smoke was not harmful, smoking did not harm the economy.

Other documents which showed the co-management the Smokers Freedom Society were introduced as evidence.  These included a 1989 memo circulated at the CTMC that indicated the Society's budget had grown to over a half million dollars, and focus group studies on smokers to test expanding activities across Canada. (Exhibit 208).  Plans to expand to Ontario were presented (Exhibit 205)

Mid afternoon, Mr. Lespérance began to sound more exasperated at the unwillingness of Mr. Bédard to acknowledge the close fit between the work of the society and the interests of the industry. In the background document (Exhibit 214a) to the wideranging press release (Exhibit 214) that launched the Society, Mr. Bédard had written: Besides, no study has proved to-date that smoking has caused actual dependence.

Mr. Lespérance put it to him - a little more forcefully than he usually speaks - that it was difficult to say that "no study had proved" when Mr. Bédard had access to studies from the Surgeon General, and that his financing was coming from the tobacco industry. Left hanging was the clear message that his answers didn't wash.

Michel Bédard seemed to redden slightly at this point, and his answer seemed a little less polished.  He had done a literature review, he explained, and counted on material provided by Infotab and the Tobacco institute.  "I would not have written something like that if I did not have the elements to support it."

In another press release, this one denouncing the first health warnings developed under Canadian law, Mr. Bédard wrote that the Government of Canada was lying to smokers in its proposed message that smoking was a major cause of lung cancer (Exhibit 216).  This warning was "untrue, totally untrue," Mr. Bédard wrote in 1988. Today, he skated around the issue. "Tobacco is not THE cause of lung cancer," he said, but acknowledged that it could be a 'co-factor'.

Among the last documents to be filed were the newsletters, the Calumet, that were sent by the Smokers Freedom Society to members, politicians, and the media.  Not yet available electronically, these documents show a skill for sophistry that, based on the testimony today, remains sharp two decades later.

Mr. Bédard told the court that he left the Smokers Freedom Society in 1990, and subsequently established the publishing house and editing service, Editions Varia.

Mr. Bédard's testimony will continue tomorrow.

To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do.

Step 1: Click on:

Step 2: Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base.

Step 3: Return to this blog - and click on any links.